Will smoking ban hold up?
Bartender's lawyer will try to poke holes in young law today in court
Tuesday, March 4, 2008
BY MATT BUEDEL
OF THE JOURNAL STAR
PRINCETON - A Bureau County judge today will begin untangling a case that could potentially snuff out Illinois' 2-month-old ban on smoking in public places.
The case is against Karla Carrington, a bartender at The Family Tavern in Spring Valley, who was cited because she allegedly "knowingly allowed" a patron to smoke early in February when an undercover Spring Valley police officer came into the bar.
But Carrington's lawyer, Peoria attorney Dan O'Day, claims in several motions filed late last week that multiple provisions of the Smoke-Free Illinois Act - from the signage requirements to the likelihood of illegal invasions of privacy and fines - are unenforceable at best, or even unconstitutional.
"I think what happened was they designed a statute that was more like a press release," O'Day said of the ban, which state lawmakers approved last summer and took effect at the beginning of the year. "They forgot to make it a law."
And if any provisions of the act, which prohibits smoking indoors in public places and within 15 feet of building entrances, are determined to be invalid, a quirk of a clause buried within its text could overturn the entire ban.
The specific language is known as a "severability clause," which is not unusual and most often aims to uphold all other provisions of a statute if one provision is struck down by a court or becomes otherwise ineffective.
But O'Day said the severability clause in the Smoke-Free Illinois Act contains a peculiarity that appears to do the opposite: invalidate the entire statute if one of its provisions becomes a courtroom casualty.
That, however, is only one of what appear to be several anomalies that will be sorted in Carrington's case, which has been filed as a misdemeanor charge.
The court first will have to decide whether it has jurisdiction over the matter, which O'Day argues the act leaves only to an administrative state agency like the Illinois Department of Public Health.
But even the path through the IDPH was prohibited by the Legislature's Joint Committee on Administrative Rules in January because its "Lack of due process threatens the public interest and welfare," according to the Illinois Register.
If the court finds it can rule on the case, it would have to determine whether restaurant and bar owners and employees could even be cited for allowing smoking to take place, as the current language of the act appears only to allow fines for people in public places who are caught smoking, O'Day said.
And among several other challenges to the minutia of the law, Carrington's case also questions the constitutionality of the state's requirement for businesses to post no smoking signs at entrances and exits - some with the name of Gov. Rod Blagojevich, the insignia of the American Lung Association or other logos. The constitutionality of mandated ash tray removal also is challenged.
"The law's a dead duck that can't be enforced," O'Day said.