PITTSBURGH -- A state appeals court said that Allegheny County had no authority to enact a ban on smoking in bars and restaurants and ordered a lower court to issue a permanent injunction stopping the ban from taking effect.

Commonwealth Court ruled Tuesday in a case brought against the county by two Downtown restaurants challenging the ban, which originally took effect Jan. 2 for indoor workplaces.

County Councilman Dave Fawcett, who was upset with the ruling, said the county probably would not appeal and is encouraging voters to lobby state lawmakers in Harrisburg for a change.

"I'm not saying they're wrong as a matter of law, but we as a Council, we passed an ordinance that we thought would have a good effect," said Fawcett. "We think there's a lot of support for it."

Last month, an Allegheny County judge delayed the implementation of the law in bars and restaurants.

In the lawsuit, funded by tobacco giant R.J. Reynolds, owners of the Smithfield Cafe and Mitchell's Restaurant argued that the state's 1988 Clean Indoor Air Act pre-empts the county and Chief Executive Dan Onorato from passing a law restricting indoor smoking.

They also claimed the ban would cause irreparable harm to their businesses and contains unfair loopholes for small bars.

"Like I said, the system works," said Smithfield Cafe owner John Petrolias. "Courts have decided."

"And this Commonwealth Court reaffirmed what we said all along and overruled the county," said Mitchell's owner Jim Mitchell.

Judge Renee Cohn Jubelirer delivered the opinion for Commonwealth Court. Judge James Colins gave a concurring opinion.

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