Haze lingers over 2008 smoking ban

Even after recent clarification, problems with enforcement remain

PEORIA —Almost two years since the state’s ban on indoor smoking in public places took effect, the haze surrounding the enforcement of the law appears to still be lingering.

Some aspects of the Smoke Free Illinois Act are now much more clear than at its inception. Enforcing agencies such as police departments and local public health departments now have citations specific to the ban that can be handed to violators.

And smokers or business owners who want to contest those allegations now know with certainty that they will do so in front of an administrative judge for the Illinois

Department of Public Health, rather than a criminal judge at a county courthouse.

Those much-needed clarifications came thanks to an amendment to the state ban signed into law in early February during Gov. Pat Quinn’s first bill signing after Rod Blagojevich’s impeachment.

“It’s an evolution, and over the last two years we’ve seen quite a lot of progress,” said Greg Chance, administrator of the Peoria City/County Health Department.

But nearly eight months since the amendment became law, it appears very few smoking cases throughout the state have gone before an administrative judge under the new process.

The process itself is difficult to track. Every county health department in the state as well as police have the authority to issue citations, but the Illinois Department of Public Health would know only about contested hearings, which are hosted at the state’s regional health centers.

Only seven hearings have been requested in total, according to the state health department. Two of those requests eventually were withdrawn, and two cases are still pending. Two of the remaining cases resulted in violations being upheld, while the final case was overturned.

The state’s official count, however, does not include at least one other known request for a hearing. That case came out of Mason County, where Rod Atterberry, owner of Happy Our Liquor in Havana, was cited for an alleged violation and requested a hearing. The Mason County Health Department declined to continue with the hearing, saying the person who performed the inspection and issued the citation no longer worked in the state.

No hearings have been held at the state’s regional health department office in Peoria, which covers a 24-county region. The first potential round of hearings for that office were scheduled for early September, and another date has been set aside in mid-November.

Chance said the Peoria City/County Health Department, which is separate from the state’s regional office in Peoria, has not issued a smoking citation since receiving state-supplied forms for the violations at the end of June. The department has, however, fielded complaints and issued warnings to some business owners. The department also has performed some on-site investigations since the ban initially took effect in January 2008.

Obstacles remain

Health departments still face a significant obstacle when it comes to enforcing the law themselves. While they have the right to cite people for smoking violations, health department personnel don’t have the authority to demand a suspected violator’s identification to properly fill out a citation form.

Chance said when the Peoria Health Department has performed on-site investigations in the past, it has been in conjunction with city police.

But many city police departments have adopted an alternative approach to regulate smoking instead of relying on what many in the profession have concluded is a flawed state law.

Police in Peoria, East Peoria and Pekin, prior to the change in the state law, resorted to regulating smoking in bars through their cities’ liquor ordinances.

The departments have relied on back-door, “catch-all” provisions that generally require bar owners and bartenders to report or stop criminal behavior in their establishments.

East Peoria police attempted to use the strategy last year but eventually had a case against a bartender thrown out of court. Pekin police announced their intention to pursue the same strategy this year but have yet to issue a violation. And Peoria police at the beginning of this year cited several bars for allegedly allowing smoking, but the cases have been challenged in court and before the liquor commission and are still pending.

Even that approach to smoking enforcement faces a threat.

The 3rd District Appellate Court in Ottawa earlier this month heard arguments in the appeal of a case out of Joliet that could have bearing on whether local liquor ordinances apply to smoking.

The case under consideration began when police checked two bars for smoking in March 2008 and cited smokers, two of whom eventually were convicted in Will County court.

Peoria attorney Dan O’Day, who has fought the ban on constitutional and technical grounds since its inception, represents the defendants and initially argued in those cases that the Smoke Free Illinois Act contradicted a 1914 Illinois Supreme Court decision that barred a municipality from prohibiting smoking and tobacco possession.

Will County Associate Judge Marzell Richardson in June 2008 upheld the constitutionality of the act and denied O’Day’s other assertions that the ban belonged in administrative hearings rather than before a criminal court. Other judges have since disagreed with that view, and the amendment to the state law made it official.

The Will County decisions, as well as the conviction, are currently under appellate review. Even if the panel of appellate judges doesn’t render a decision on the ban’s constitutionality, decisions in favor of the defendant on the other appeals could more clearly define the violations as noncriminal acts.

“I think that if the appellate court rules (smoking ban violations) are not crimes, then we have a good argument that these are not the type of violations that the (local liquor code) ordinances would apply to,” O’Day said.

There is no deadline for a decision from the 3rd District Appellate Court, although decisions usually are rendered within a few months of arguments.

source: http://www.pjstar.com/

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