Two judges rule differently on Illinois smoking ban

Two judges rule differently on Illinois smoking ban

Two court rulings have created a cloud of questions about the enforcement of the Illinois act prohibiting smoking in most public places.

One judge said the act is constitutional and another judge said the legislation is not currently enforceable. Appeals could be made on one or both of the local court rulings.

Left in the middle of these two decisions are county health departments from DuPage, Will and Kane. Officials in these locations mentioned various levels of enforcement and citations for violations of the act.

Another opinion about the smoking situation came from the assistant city attorney for Elmhurst, one of the suburban cities which had passed its own smoking ordinance as well as adopting the state statue.

Harlan Spiroff, an Elmhurst attorney, said although the act does not directly address the issue raised in a recent court ruling, it does provide that both the Illinois Department of Public Health and local law enforcement agencies shall enforce the provision of the act and may assess fines.

“Therefore, we are of the opinion that while perhaps only the department has jurisdiction to deal with violations of the act, the courts have jurisdiction over violations of the city ordinance,” he said. “Regardless of what the act might provide, the city may proceed in court on a violation of its own smoking ordinance in the same manner as any other ordinance violations.”

Spiroff said the defendant in the Bureau County lawsuit asked the court to dismiss his case because, in his opinion, the act allows only the department to hear such matters, not the courts.

The department has yet to get approved administrative rules which are needed to establish enforcement rules for the act, which became effective on Jan. 1, 2008.

The department’s first attempt at such rules was rejected by the Joint Committee on Administrative Rules. That committee includes members from both the House and Senate in Illinois.

“The department has yet to submit revised rules, the effect of which, along with the Bureau County judge’s decision, means no one can enforce the act,” Spiroff said.

With those opinions as part of the picture, county health departments in DuPage, Will and Kane are continuing with their smoking ban efforts.

A spokesman for the DuPage County Health Department said “We do not comment on court cases or political debates.”

“Our position is to urge compliance,” said David Hass, the department’s public information officer. “We aggressively act on complaints with a series of letters and site visits if necessary.”

The official said the department expects to get a high degree of cooperation with its information and education efforts, and “that has been the case so far.”

The department has 282 complaints logged in with the state. Some are duplicates and some are not legitimate, according to Hass. He noted that number may be misleading since one person, for example, could complain multiple times about an office building, or the department might receive multiple complaints from one evening at one business.

He said the department has been receiving very few complaints on a weekly basis during the last few months.

Hass added that the department continues to offer smoking cessation classes, primarily with local hospitals, for people who are trying to quit. The classes, which are free, offer proven and effective behavior modification methods. Nicotine replacement therapies such as patches, gum, lozenges are also part of the classes.

Interested people can call 630-682-7400 to reach a health educator who can answer questions.

A Will County Health Department spokesman did comment on current citations and court cases in that area.

Vic Reato, media services manager, noted that a Joliet bar patron was cited in the wake of Smoke-Free Illinois Act compliance checks conducted Oct. 3. A patron at Woody’s at 1008 E. Washington was cited for smoking in a public place. The individual is subject to fines of from $100 to $250 for the first offense.

The check of this establishment was part of four unannounced compliance checks on Oct. 3 by the Will County Health Department’s Tobacco Control & Prevention program and the Joliet Police Department.

Violations of the state act were also found during checks at Paulie’s Pub at 2104 W. Jefferson, Alfa’s II at 1609 W. Jefferson and Old School Bar & Grill at 926 Gardner.

The latest incident marks the second time patrons have been cited for state act violations at Woody’s, according to Reato. Two patrons were ticketed for smoking in a public place March 7. Both of those patrons previously cited at Woody’s are scheduled for circuit court jury trials on November 5.

In another case, one person has plead guilty and paid a $100 fine and $135 in court costs. Five more people are scheduled to have jury trials, the county spokesman indicated. No business owners have been issued citations.

Random compliance checks are undertaken once Tobacco Control & Prevention receives three complaints alleging violations of the act at a place of business. Reato indicated that 21 of the 22 compliance checks have been conducted in bars and restaurants. The other one was at a manufacturing company.

Will County has received 205 complaints since the state legislation was enacted, said Reato. Many of them were in January (59) and February (43). He said there were only five complaints in September. Of the 205 complaints, 129 were about people in bars and restaurants and the remainder was in other types of businesses.

The view of the Will County Health Department is that there is a state law which prohibits smoking in most public places, according to Reato.

“This is not the first state law which has been lacking administrative rules,” he said. “We are not saying that the legislation is perfect, but we are doing our best to enforce the law.”

Reato also noted that a Will County judge denied a motion questioning the ban’s constitutionality and declined to dismiss charges against five people accused of smoking in two Joliet bars earlier this year.

In Kane County there have been 137 complaints, according to Tom Schlueter, public information officer for the health department. He did not break out the figures, but indicated that about half of that number was in bars and half were in other types of businesses.

“For the most part, a phone call and a letter takes care of the problem,” he said.

The Illinois Department of Public Health states that the act prohibits smoking in virtually all public places and workplaces, including offices, theaters, museums, libraries, educational institutions, schools, commercial establishments, enclosed shopping centers and retail stores, restaurants, bars, private clubs and gaming facilities. The goal is protect non-smokers from secondary smoke produced by smokers.

The department said there is no protection afforded by separating smokers from non-smokers within the same enclosed environment. Ventilation systems and air cleaners are not effective in eliminating secondhand smoke, according to the department.

The state agency cited a 2006 U.S. Surgeon General report which estimated that exposure to secondhand smokes kills at least 65,000 non-smoking people a year in the United States, including 2,900 people in Illinois. Inhaling secondhand smoke causes lung cancer and coronary heart disease in healthy nonsmoking adults, according to the report.

More information can be obtained at www.smoke-free.illinois.gov. Complaints can be made through the Web site or by calling 866-973-4646.

Posted on Tuesday, October 28, 2008 (Archive on Tuesday, November 04, 2008)
Posted by jstoltz Contributed by jstoltz

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