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Smoking Opinion

Attorney general’s legal opinion casts doubt over the city’s proposed smoking ban.

Alexandria likes to consider itself a leader — a city willing to forge its way into new legal territory and strike new ground in governance. For Mayor Bill Euille, this tradition was at the heart of his proposed smoking ban in bars and restaurants. The unusual plan didn’t actually ban smoking outright, but it threatened not to renew the permits of bars and restaurants that failed to ban smoking. Last month the council deferred the issue until next year, voting for a "reenactment clause" in which the elected leaders promised to take the issue up in 2008.

But the city’s regulatory tactics might not meet muster with state officials.

In a July 10 letter to Del. Bill Janis (R-56), which covers Goochland, Louisa and part of Henrico counties, Virginia’s Republican attorney general offered an opinion that seems to take issue with Alexandria’s approach. In the letter, Attorney General Robert McDonnell considers whether a locality "may ban smoking in all restaurants by denying restaurants a zoning permit unless the restaurants agree to be smoke free."

"It is my opinion that a locality may not impose restrictions on smoking that are more stringent than those authorized by the Virginia Clean Indoor Air Act," McDonnell wrote in the July 10 letter. "It further is my opinion that a locality may not ban smoking in restaurants."

Because no other jurisdiction in Virginia has taken an approach that uses permitting authority to ban smoking, the opinion appears to be aimed at Alexandria’s City Hall. Yet city leaders are not willing to give up on the issue without a fight.

"It strikes me that the attorney general’s opinion does not respond directly to the approach to restrict smoking that is being considered by Alexandria," wrote Councilman Rob Krupicka in an Aug. 1 letter to the city attorney. "While I have concerns about the AG’s complete objectivity in this matter, now that he has weighed in, we need to ensure input from the AG that is relevant to our specific ordinance."

Bernard Caton, the city’s legislative director, said he didn’t think the city needed permission from the state about how local zoning laws could be structured. And City Attorney Ignacio Pessoa said that McDonnell’s opinion offered little guidance to city leaders. He said the city hasn’t yet decided how to respond — or even if it was necessary to do so.

"That opinion has very few facts and very little analysis," said City Attorney Ignacio Pessoa. "We certainly disagree with the conclusion, and it’s hard to understand why he came to that conclusion because the analysis is so weak."