'Blunt' ban gets mixed reviews in Harrisburg

June 23, 2008 1:45:22 PM PDT
A Philadelphia ordinance banning the sale of cigars and single cigarettes used by illegal drug-takers was partly thrown out and partly upheld Monday by a divided appeals court. The Commonwealth Court majority invalidated a January 2007 ban on flavored tobacco products and on cigarettes sold individually or in pairs, making them likely to be used for drugs.

But the court said it was permissible for the city to prohibit retailers from selling certain tobacco drug paraphernalia, such as hollowed out cigars known as "blunts."

The difference is that the blunt-sales ban requires proof the seller knows or should know the cigars would be used for taking drugs, the court said. The ordinance's provisions on flavored tobacco and single cigarettes does not include that language.

A Philadelphia judge had previously ruled the ordinance was unenforceable and pre-empted by the state's Controlled Substance Act.

A retailer "can be held liable even if it does not know that the sale of a single cigarette or flavored cigar will result in the buyer using the tobacco product to inhale illegal drugs," wrote Judge Mary Hannah Leavitt.

"By contrast, the Controlled Substance Act exempts persons from liability who do not know, or cannot reasonably know, that the tobacco item being sold would be used by the buyer to ingest illegal drugs," she wrote.

Commonwealth Court also ruled that the city can ban the sale of certain tobacco products within 500 feet of a church or school, regardless of how they are intended to be used.

Jane Istvan, a city lawyer, said city officials were studying the opinion. She said, because of the ruling, the ban on blunts may apply only within 500 feet of churches or schools.

Lawyers for the tobacco businesses that sued the city and its Licenses and Inspections commissioner said they were unfamiliar with details about the decision or did not return phone messages.

Judge Rochelle S. Friedman wrote that she would have sided with the Philadelphia judge and invalidated the entire ordinance. Judges Renee Cohn Jubelirer and Doris A. Smith-Ribner said they would have upheld all aspects of the city law.


On the Net:

Opinion: http://www.courts.state.pa.us/OpPosting/CWealth/out/588CD07-6-23-08.pdf