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Wednesday, April 9, 2008

Enforcement of new smoking ban still unclear

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Enforcement of new smoking ban still unclear


By TOM COMPTON
Daily News

Four months after a new Illinois law made it illegal to light up in public places, the smoke still hasn't cleared.

Bar and restaurant owners say they don't know how far they must go to stop customers from smoking. Police and some local health officials say they're not sure how to enforce the ban.

And prosecutors in some Illinois counties say they won't take up smoking-ban cases until what they call loose ends in the law are tied up.

'Many of the state's attorneys I've discussed this with agree that there are significant problems with the language in the statute,' said St. Clair County State's Attorney Robert Haida, who has told police that he won't prosecute violators until the problems are fixed.

The Smoke-Free Illinois Act outlaws smoking in public places and within 15 feet of their exterior doors and windows. People and establishments that violate the law can be fined up to $250.

But that's as clear as it gets.

Crawford County State's Attorney Tom Wiseman says he has been in contact with other state's attorneys through e-mails and other correspondence about enforcing the smoking ban. He said each county seems to be doing its own thing when it comes to enforcement. He has also talked with local law enforcement, but no formal criteria for issuing a fine has been established here.

Darla Tracy, director of the Crawford County Health Department, said they have had a few complaints but no citations have been issued yet. When a complaint is received it is investigated by the health department, then a "friendly reminder" letter is sent with a checklist of non-compliance.

Former Crawford County State's Attorney Jay Holtzhouser sees lots of problems with the law.

"There is no enforcement procedure dictated," Holtzhouser said. "The language of the law provides nothing in the way of a hearing or appeal."

Holtzhouser explained that the way the law reads, it only "prohibits" smoking and does not make it unlawful. "A criminal statute says 'It shall be unlawful,'" he explained.

He also pointed out that a police officer could walk up to you, say you are within 15 feet of a entrance, and issue you a fine without any due process. Bar and restaurant owners say the law does not spell out how they're supposed to enforce the ban.

'All we can do is say there is no smoking allowed,' said Mary Woodward, owner of Woody's bar in Joliet, where police cited some smokers earlier this month. 'I guess the people who were here that day chose not to go outside. I didn't see them; what do you do?'

Some bar owners mistakenly thought they also had been cited at the same time, Will County State's Attorney's Office spokesman Charles Pelkie said. Smokers who violate the law are given citations, similar to a traffic ticket, while police are writing up longer reports on businesses and sending them to prosecutors, he said.

Adding to the confusion is the fact that the state has not yet adopted rules detailing how the ban is supposed to work.

The General Assembly's Joint Committee on Administrative Rules has rejected draft rules, saying they lacked any means for people who've been cited or fined to appeal. The committee could take up the rules again at its next meeting, April 15.

When some of the smokers cited at Woody's and another Joliet bar, Paulie's Pub, went to court this week - where they protested outside, complaining the law deprives them of the right to smoke - the judge told them to come back next month.

Pelkie said the judge was concerned that citations were being given case numbers identifying them as misdemeanors, which would have made anyone who pleaded guilty appear to have a criminal record.

Nobody knows how many people or businesses around the state have been cited for violating the law.

The Illinois Department of Health isn't tracking the number of violations, and the law, while giving the agency the responsibility to enforce the ban, doesn't require it to track how often it's enforced, department spokeswoman Melaney Arnold said.

The department is only tallying the number of complaints it has received about smoking - more than 2,600 as of Tuesday, Arnold said.

Beyond enforcement issues, though, it's difficult to tell what the economic fallout has been.

Some casinos claim it has taken a significant bite out of their business. Harrah's Metropolis Casino in Metropolis, in far-southern Illinois, reported a 23 percent drop in revenue the first two months of the year, and blamed the smoking ban for 30 layoffs.

But the American Cancer Society, one of the ban's strongest backers, argues that the sluggish economy probably played a role.

'It's a bit silly to assume that a public health law is the driving factor behind a certain sector of the economy doing bad at a rough economic time,' the Cancer Society's Mike Grady said.

Lawmakers who opposed the ban, particularly those whose districts include casinos, say they'd like to create exemptions for service clubs like the Veterans of Foreign Wars, or perhaps allow businesses that want to allow smoking to pay for permits to do so.

Grady says the American Cancer Society would fight any measure to water down the law, and the handful of attempts made so far have gotten nowhere.

State Sen. Mike Jacobs, one of the ban's most vocal opponents, doubts he or any of his colleagues can win exemptions anytime soon.

'I tend to look at those (proposed changes) as what I call feeding and amusing the voters,' said the Moline Democrat, whose district includes a riverboat casino. 'You can't pass an exemption bill through the Legislature. There's just not the will to do that right now. Maybe next year.'

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