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Sunday, March 30, 2008

Peoria: Smoking ban continues to be tricky

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Smoke ban continues to be tricky

Pending court cases could have effect on future of ban

Sunday, March 30, 2008

"Smoke at your own risk."

That phrase may become the unofficial slogan for the Smoke Free Illinois Act as the law's intent and its application begin showing signs of divergence just three months after the ban on indoor smoking in public places took effect.

This much is clear: Smokers can be ticketed for lighting up in places where tobacco fog once permanently lingered. The resolution of a few court cases pending throughout the state, however, should determine whether those alleged offenders can be slapped with fines the act brandishes.

The position for business owners and their employees is much less straightforward. Opinions differ on whether the law really requires them to prohibit smoking in their establishments, and other purported requirements of the law - the posting of no smoking signs and removal of ash trays - already have been debunked.

And if that uncertainty wasn't enough, it also appears the state ban may have inadvertently invalidated local smoking ordinances, further complicating the confusion faced by agencies charged with enforcing the law but given sparse direction on how to do so.

Ultimately, though, none of it may matter. The cases against smokers pending in Bureau and Will counties include constitutional challenges that could upend the act, and one legal scholar expresses confidence that they will succeed.

"There's no doubt in my mind that a court is going to hold this (act) unconstitutional at some point in time," said Steven Beckett, the Director of the Trial Advocacy Program at the University of Illinois' College of Law who has twice argued First Amendment cases before the U.S. Supreme Court.

"One wonders if this whole package shouldn't be sent to the Legislature and go back to the drawing board," Beckett said.

Inconsistency abounds

The handful of charges brought under the Smoke Free Illinois Act in three counties illustrate the inconsistencies in interpretation of the law and the idiosyncratic language therein that local law enforcement agencies have been left to decipher.

In Marion County, Maurice Walker was charged in late February with violating the act after hosting a protest of the smoking ban at his tavern, Fat's Rendezvous, in Sandoval. That case continues, but no one who smoked in the bar during the protest was charged.

Will County's cases against smokers reverse that scenario. Joliet police earlier this month checked two bars, Paulie's Pub and Woody's, and ticketed five patrons for allegedly violating the act.

The Will County State's Attorney's Office immediately followed through with charges against the smokers, but has so far hesitated to charge bar owners or employees. A spokesman for the office said police reports of the incidents remain under review.

But the smoking violations issued in Bureau County in February stand out because one of the cases there is the first to reach a conclusion, one that squarely contradicts the act as it had been advertised leading up to Jan. 1.

Spring Valley police in early February staged an undercover sting at The Family Tavern and cited two people, patron Duane Alexander for smoking and bartender Karla Carrington for allowing it.

The cases initially were met in Bureau County court with confusion as the City of Spring Valley attempted to file the formal charges on its own, but later admitted it had no authority to do so because it does not have its own smoking ordinance to mirror the state's ban.

Once the cases were turned over to the Bureau County State's Attorney's Office for prosecution, one was instantly dismissed. The county's top prosecutor, Pat Herrmann, said he didn't feel the statute forced bartenders like Carrington to prohibit smoking. The case against Alexander continues.

The common thread between all but two of the cases on opposite sides of the state is Peoria attorney Dan O'Day, who challenged the state ban in Carrington's case and has adapted the same constitutional questions to the smokers' violations in Bureau County and four of five cases in Will County.

And if you ask him, the Bureau County prosecutor's decision and the unusually vague and peculiar language in the act have stripped the law of all but its basic intent: to snuff out cigarettes.

"The only part that's left of the whole thing is that the smokers themselves still have liability, if you believe what the act still says," he said.

Not as advertised

In the months after the Smoke Free Illinois Act was signed by the governor and before it took effect, media outlets around the state hammered home the consequences for offenders come New Year's Day.

Smokers could be fined $100 to $250. Business owners had to post conspicuous "No Smoking" signs, remove ash trays and prohibit smoking in their establishments or face fines more serious than those for smokers.

The Web sites for the Illinois Department of Public Health and other organizations that co-opt the "Smoke Free Illinois" slogan continue to warn that business owners who fail to comply with the act by not posting signs or removing ash trays will face fines.

Because of the broad wording of the law - the act applies to enclosed public places and places of employment - the ash tray provision would effectively outlaw the sale of such receptacles throughout the state, and any store that put ash trays on its shelves could potentially be fined for keeping those items in stock.

But it turns out the so-called requirements regarding signs and ash trays are what's referred to in legal lingo as "nullities" - hollow provisions with no legal force or validity.

The IDPH admitted in response to a series of questions from the Journal Star over the last few weeks that assertions of penalties over the presence of signs or ash trays are erroneous.

"There are no financial penalties," an unidentified representative of the IDPH's legal department wrote. "Complaints may be submitted regarding missing signage or inappropriately stored ash trays. . . . Multiple complaints regarding these issues could initiate an investigation on the part of the enforcing agency(ies)."

That late-stage correction of misinformation - and a total lack of direction in other gray areas - continues to frustrate authorities who are obligated to enforce the law and have been attempting to determine an appropriate avenue to process violations.

"I wish there was a bit more direction before it was enacted and the rules were a little more clear, because right now it's about as clear as mud," said Washington Police Chief Jim Kuchenbecker. "We should not be guessing when it comes to basic rights of our citizens."

Conundrums

Washington, like other municipalities around the state, passed its own smoking ordinance adopting the state ban's language to streamline the city's enforcement activity.

The move became almost a necessity after the IDPH's proposed rules for enforcement of the ban were rejected by the Legislature's Joint Committee on Administrative Rules in January.

The members of JCAR held that the proposed rules - that the IDPH, local health departments or local law enforcement agencies would issue fines that could only be appealed to the local circuit court - lacked due process that similar offenses receive in court.

By adopting its own ordinance, Washington spelled out that police would be in charge of issuing citations similar to parking tickets that could then be paid through the mail or contested in Tazewell County court. The city had yet to issue such a ticket by March 20.

But the city also copied verbatim a penalty provision that appears to be unique among Illinois statutes and, possibly, unconstitutional.

The state act defines penalties for business owners and employees who violate the act as fines of "not less than $250 for the first violation, . . . not less than $500 for the second violation within one year after the first violation, and . . . not less than $2,500 for each additional violation within one year after the first violation."

Those "not less than" prefixes are unlike any other penalties in state statutes, which provide minimum and maximum amounts, and are unconstitutional, according to Beckett, the U of I law professor.

"There's no question in my mind that it is unconstitutional," he said. "No ordinary human being would know what (penalty) they're going to face."

And the inclusion of "not less than" before each dollar amount in that penalty provision could prove to be a double-edged sword for the state act - indirectly quashing other municipal smoking ordinances.

The state act allows municipalities to craft their own ordinances to regulate smoking, as long as they are "no less restrictive" than the state ban.

The same provisions in ordinances in Normal and Bloomington, which were established a year before the state ban, not only provide caps to the fines, but also provide smaller fines for the violations.

City Manager Mark Peterson said Normal's ordinance was amended in December to comply with state law, but that the amended version still appears "somewhat inconsistent with state statute."

While the Normal ordinance puts the minimum fine for business owners at $100 - less than the $250 conceivably required by the state - nothing in the Normal provision prohibits seeking a $250 fine for first-time offenders.

"Although it's not identical to state statute, it could be changed and it may," Peterson said. "The state statute in this instance is very unusual."

Indeed, municipalities apparently face a bewildering choice: put a cap on the penalties in their own provisions and face invalidation under the "no-less-restrictive" clause, or include potentially unconstitutional language in their ordinances.

For chief Kuchenbecker, that puzzling possibility is just another reason to review the state law and his own ordinance, which includes fines without caps.

"That's something that we'd have to explore to clean up," he said. "The state statute needs to be cleaned up."

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