Monday, June 30, 2008

Smoking ban most often defied in downstate IL (article)

It's almost like thee are two states in one as far as IL is concerned. But it ain't a surprised that the smoking ban is being defied the most in downstate IL where more people are not under the spell of antismoking poisonanda.


Smoke ban often defied Downstate

Rural authorities say state's law is too ambiguous

"I told the health department weeks ago, 'Go ahead and fine me,' " said owner Gary McWard, flicking an ash from his cigarette into an empty beer can on the bar top. "And I'm still waiting."

Enforcement could be a long time coming. Light up indoors in Chicago and the suburbs and get caught, and it's virtually certain the law will try to snuff it out. But in Downstate Illinois, where state smoking rates are the highest and opposition to the smoking ban is most vociferous, some communities are refusing to halt indoor smoking or levy fines.

Six months after the state's blanket ban on smoking in indoor public places took effect, Downstate smokers can easily be found either breaking the law or craftily skirting it except in urban areas such as Springfield, Bloomington and Champaign.

In and around Taylorville, a cozy community just 27 miles south of the Capitol building where the law was passed, more than half of the county's 17 major drinking establishments are filled with smokers, county officials said. Complaints pile into the Christian County Health Department, where officials fume they can do nothing more than issue warning letters and threats of fines to violators.

'A legal vacuum'

Some rural prosecutors and county health departments say they are in a legal bind: The law that took effect Jan. 1 is not specific in how it should be enforced.

Though the law spells out fines from $100 to $250 for smokers and from $250 on up for business owners, it does not detail a due process to enforce it, they say.

And it leaves it up to local authorities to wrestle with the ambiguity. Officials in Chicago and the suburbs are enforcing the ban despite the lack of certain guidelines, but some Downstate prosecutors are reluctant to—especially with strong pockets of public sentiment against the ban.

The Tribune contacted officials from more than a dozen Downstate counties who say they are doing nothing to enforce the law.

"We have been forced into a legal vacuum," said State's Atty. Tom Finks of Christian County, one of many Downstate counties that have not prosecuted a single violator. "Legally, the legislature has not given us the proper tools of enforcement. Our job is not to fill in the blanks."

Asked why he did not adopt Chicago-like enforcement standards, Finks said, "It's a classic difference in government philosophy between us down here and the folks up there."

Peoria attorney Daniel O'Day, who believes the ban infringes on personal liberty, travels across the state working for free to represent smokers cited under the law. He said the ban has a number of flaws, including no specific requirements for bartenders to enforce the law; no penalty for failing to remove ashtrays; and no legal limit on the dollar amount of fines for bar owners.

"This is Lawmaking 101," said O'Day, who is himself trying to give up smoking.

O'Day is confident the state smoking ban will be ruled unconstitutional. His attempt in Will County was rebuffed last month when a judge upheld the ban as well as the police citation process in which five bar smokers in Joliet were fined. A Bureau County judge is expected to rule on O'Day's arguments next month.

Legislators in the last session tried to close the legal loopholes, but the bill was tabled. Backers vow to readdress the issue in the next session. Ultimately, prosecutor Finks said, the revised law will likely provide for an administrative hearing process that will not involve county legal systems.

"In the meantime, there's nothing much that can be done about it," said Kathy Drea, director of public policy for the American Lung Association.

"We get calls all the time about violations, but for now people can get away with it," said Drea, who lives in Taylorville and knows of the rampant smoking in bars here. "It's frustrating. "

Michael Grady, who helped craft the law for the American Cancer Society, said most communities have no problems upholding the law.

"The law is sufficient," he said. "If there is a situation, it is in people choosing not to follow it, not in legislative flaw."

Ban proponents are seeing more than 90 percent compliance statewide, Grady said. And the violations seem confined mostly to small bars, officials said.

The state's public health agency has gotten more than 3,700 smoking complaints this year. Complaints are forwarded to counties for investigation, but state officials said they have no idea how they are handled.

Creative strategies

Some tavern owners say they are following the letter of the law while creatively getting around the spirit of it.

Outside Decatur, Frank Conaway, owner of the tavern Timbuktu, erected a corrugated metal wall around a patio and stone bar. He installed heaters and television screens while leaving a few inches of open air between the walls and the roof. That, he said, makes his "Butt Hut" comply with state law, a claim that ban proponents doubt.

"People can smoke out there all they want, and we'll serve them food and drink," said Conaway, who removed the wall for the summer to create a beer garden.

To the west in Alton, owners of the Alton Sports Tap built a Caribbean-themed addition to accommodate smokers. The walls and roof are separated by a small space enclosed with mesh screening—a construction that bar owners said keeps them in compliance with the state ban. But proponents who helped design the law said it clearly prohibits serving food and drink in a smoking area with a roof.

"It cost us a bundle to build it, and we think it is within the law," said owner Star Diserens. "If we didn't do it, we'd lose our core customers, who all smoke."

Across the state, tavern owners are building beer gardens next to their establishments so customers can smoke outdoors.

At Fast Eddie's Bon Air in Alton, one of the state's busiest bars, the owners spent some $800,000 to build an outdoor facility resembling an old-time ballpark. The serving bar sits beneath an overhang. In winter, massive heaters blow warm air on the patrons, many of them smokers.

"I would never credit this stupid smoking law, but it certainly has helped our business," said Ed Sholar Jr., whose family owns the bar.

But in Taylorville, a town of 12,000, some bar patrons brazenly smoke indoors.

On a recent Thursday night at the American Tap, seven of the 12 patrons sitting at the bar puffed away while sipping beers. Owner McWard acknowledged making a feeble attempt at deterrence by placing a sign outside the front door advising of the smoking ban and not putting out any ashtrays.

So regulars like David Martinez bring their own ashtrays, a makeshift cup he called a "butt basket." Others dump their ashes into empty beer cans. As they smoke, the fumes waft past a picture of smoking ban proponent Drea, who McWard said is not welcome in his establishment.

McWard has gotten several violation notices from the county and knows of at least 65 complaints filed against the tap. But until enforcement happens, McWard figures his customers can smoke at will.

"We would like to get this stopped, but we can't," said Gerry Grigsby, administrator for the Christian County Health Department. "We're stuck with a bad law, and it's a health hazard."

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