Tuesday, September 30, 2008

Good news for IL smokers

Judge rules circuit courts have no jurisdiction in smoking-ban cases



A Bureau County judge essentially made the Smoke Free Illinois Act unenforceable Tuesday by ruling that circuit courts had no jurisdiction to handle violations of the act.

The decision by Associate Judge Cornelius Hollerich, combined with the rejection of proposed regulations for the statute by the state earlier this year, appears to leave no recourse for the prosecution of smokers cited for lighting up indoors in public places.

The ruling came in the long-delayed case against Duane Alexander, who was ticketed for allegedly smoking in a Spring Valley tavern in February.

Alexander’s lawyer, Peoria attorney Dan O’Day, said the ruling has immediate, far-reaching implications for the smoking ban.

"This ruling, if it’s correct — and we think it is — is that there’s no way to enforce the Smoke Free Illinois Act right now," O’Day said. "There should be no more arrests for smoking."

Bureau County State’s Attorney Pat Herrmann declined to comment after the ruling Tuesday, though he could appeal the decision to the Third District Appellate Court.

A charge against a bartender at the tavern at the same time as Alexander was dropped earlier this year because Herrmann said he didn’t believe the statute required business owners or employees to prohibit smoking.

Illinois Department of Public Health spokeswoman Melaney Arnold said the department disagreed with Herrmann’s decision about the bartender and the judge’s ruling Tuesday. She also said the law remains in effect and that it has been "successfully enforced in other circuit courts," though she could not immediately provide examples.

Hollerich, who called the act "a little clumsy" and "drafted somewhat poorly," largely relied on the state health department’s own proposed rules in his decision that cases brought under the act should be handled administratively by the department and not by courts.

"It does appear to the court, based on the filings here, that the Legislature intended for the assessment of the fines to be imposed by an administrative agency," Hollerich said. "The statute itself does not contain the type of language one would normally find in the criminal code… or motor vehicle code."

Those proposed rules were barred from taking effect by the Legislature’s Joint Committee on Administrative Rules in January because they lacked sufficient due process for people given citations under the act. The health department later voiced its intention to file amended rules for consideration, but never did so.

Arnold said the department has since been attempting to clarify the law through legislation, but none of those attempts have reached successful votes.

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