The opinion of the court was delivered by: P. Kevin Brobson, Judge
AND NOW, this 2nd day of August, 2011, upon consideration of the Respondent's Motion to Report Unreported Opinion said Motion is granted. It is hereby ordered that the opinion filed May 17, 2011, shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Moonlite Cafe, Inc. d/b/a Moonlite Cafe, v. Department of Health, Petitioner :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
Moonlite Cafe, Inc. d/b/a Moonlite Cafe (Petitioner) petitions for review of a final determination of the Department of Health (Department), issued May 13, 2010, which upheld the decision of the Department's Bureau of Health Promotion and Risk Reduction (Bureau). The Bureau denied Petitioner's application for an exception under the Clean Indoor Air Act (CIAA), Act of June 13, 2008, P.L. 182, 35 P.S. §§ 637.1-.11. For the reasons that follow, we affirm. Petitioner operates a bar and restaurant known as Moonlite Cafe located at 530 Brookline Boulevard, Pittsburgh, Pennsylvania 15226, and is the holder of Pennsylvania Restaurant Liquor License Number R-8179. Moonlite Cafe has a bar area, where smoking is permitted, and an eating area, where smoking is prohibited. Moonlite Cafe's bar area and eating area have separate outdoor entrances, separate kitchen entrances, and separate ventilation systems. Moonlite
Cafe's bar area and eating area, however, are connected by a large hallway where Moonlite Cafe's restrooms are located. This hallway does not contain doors or other partitions physically separating Moonlite Cafe's bar area from Moonlite Cafe's eating area.
On September 8, 2008, Petitioner filed an application with the Department pursuant to Section 3(c) of the CIAA,*fn1 seeking an exception from Section 3(a) of the CIAA's*fn2 general prohibition against "smoking in a public place" for Moonlite Cafe's bar area. Petitioner claimed that Moonlite Cafe's bar area is entitled to an exception under Section 3(b)(10) of the CIAA*fn3 as a "drinking establishment."*fn4 Following a review of Petitioner's application and an on-site visual inspection of Moonlite Cafe, the Bureau denied Petitioner's request for an exception on March 16, 2009. The Bureau determined that Petitioner was not entitled to an exception under Section 3(b)(10) of the CIAA as a Type II Drinking Establishment because Moonlite Cafe's bar area is not an "enclosed area . . . which, on [September 11, 2008] is a physically connected or directly adjacent enclosed area which is separate from the eating area." (Reproduced Record (R.R.) at 30 (quotations omitted) (alterations in original).) On March 25, 2009, Petitioner filed a request for reconsideration, which the Bureau denied on May 14, 2009, on the grounds that Moonlite Cafe's bar area "is not enclosed and separate from the eating area." (R.R. at 47.)
On May 22, 2009, Petitioner appealed the Bureau's denial to the Secretary of the Department. By final determination issued May 13, 2010, the Department's Deputy Secretary for Administration (Deputy Secretary), acting as the Department's agency head, upheld the Bureau's decision. In so holding, the Deputy Secretary interpreted the term "enclosed area," as used in subsection (2) of Section 2 of the CIAA's definition of "drinking establishment," to mean "an area surrounded on all sides," and found that Moonlite Cafe's bar area is not an "enclosed area" because "there was no wall between the restaurant and the bar and these areas were connected with each other by a large walkway where the bathrooms were located." (R.R. at 73, 75.) This petition for review followed.
On appeal,*fn5 Petitioner argues that the Department erred in denying Petitioner's application for an exception under Section 3(b)(10) of the CIAA as a Type II Drinking Establishment on the grounds that Moonlite Cafe's bar area is not an "enclosed area." Specifically, Petitioner contends that subsection (2)(ii) of Section 2 of the CIAA's definition of "drinking establishment" is ambiguous, and that the Department's interpretation of "enclosed area" is illogical, erroneous, and inconsistent with the CIAA. Petitioner maintains that Moonlite Cafe's bar area qualifies as an "enclosed area" because "it is ...