Sunday, September 11, 2011

great IL smoking ban loopholes letter I just found now, albeit late

Just caught this from the Illinois Smokers Alliance Yahoo group(Daniel O'Day, is the same person btw who represented several Will County bars, in an unsuccessful 2008(?, let me know if I have the year this lawsuit was filed in a state court incorrect) lawsuit against the Illinois state smoking ban):

We have been fighting the forces of evil, in the courts and elsewhere, so I thought I'd prepare an update.
We figured out some time ago that the anti-smoking groups do not have access to as much cash as they previously had available, nor do they have the same goodwill with the legislature in Illinois that they once had. Everyone in the General Assembly knows that the Smoke Free Illinois Act was very poorly drafted. Then, when the anti-smoking forces promised lawmakers that only one fix was needed to correct errorsd in the law, the Legislature okayed those changes only to learn later that there are still many other technical problems with this law that could have been avoided had the law been drafted properly in the first place.
There are still many loopholes in the Act.
First, under section 20 public places and places of employment are supposed to remove ashtrays and display signs at entrances; but there is no penalty in the law for not doing so, in that the penalties are for violations of section 15, not section 20.
Second, they tried to fix section 15 by requiring an owner to "reasonably assure" that smoking is prohibited in an indoor public place or place of employment. This duty is imposed only on an owner, not on a person who operates or controls a public place. So only an owner can be charged with a violation based on a customer's or employee's smoking. In short, a bartender who is not an owner cannot be charged with letting customers smoke. As to an owner, there is no guidance on what it means to "reasonably assure" that smoking is prohibited. What this likely means is that, if an owner has posted signs and removed ashtrays, the owner just about has to be observed watching someone smoking before a violation can be found. Also, note that section 15 imposes duties on an owner only with respect to "indoor" public places. So if smoking is occurring in an outdoor area in violation of other parts of Section 15 or in violation of section 70 (which has no penalty section), the owner cannot be blamed for it.
Third, owners' fines are totally messed up -- in a good way. Recall that section 45(b) provides for fines of $250 for the first violation, $500 for the second violation within one year after the first violation, and $2500 for each additional violation within one year after the first violation. The first problem with this language is that an owner can be fined only over a period of one year. Once the first violation occurs, for a period of one year, there can be fines of $250, $500, or even $2500, but once the first year is up following the first violation, no fines are provided for owners. During that period of one year, the Illinois Department of Public Health has ruled that fines do not escalate until there is finality for a prior violation. So suppose an owner fights his first ticket for 6 months; during that time, if he gets more citations, the most that can be charged for any of them is $250. Only after the owner pays the ticket or loses his case can the next level of fine ($500) be imposed. And so on.
Fourth, the power of municipalities to draft their own ordinances is very much in dispute. Under section 65(a) non-home rule units and home-rule units are granted authority to regulate smoking in public places. The regulation must be at least as restrictive as the state law. If a municipality decides to draft an ordinance to reach taverns, that ordinance is probably illegal because it is not as restrictive as the state law, which applies to many types of public places in addition to taverns. If there is any variation between how the state law deals with a public place and how the state law deals with one, that is a fertile ground for objecting to the local ordinance. Moreover, under Section 10 of the state law, a place might be defined as both a "public place" and a "place of employment." Notably, Section 65 of the state law does not allow for this sort of treatment under a local ordinance, because the term "place of employment" appears nowhere in Section 65. Section 65(b) refers to any enclosed indoor area used by the public or serving as a place of work if the area does not fall within the definition of a "public place." So if an area is a public place, it cannot be regulated by a municipality or county pursuant to section 65(b) but rather an ordinance must meet all the criteria applicable due to Section 65(a).
Fifth, there is no provision for search warrants or other forms of investigative tools. Administrative search warrants or inspection systems are allowable under the 4th amendment if there is carefully-drafted legislation. Here there is none. Thus, out of all the places that are listed as public places, only bars are being watched closely because police can pretty much enter them at any time under various liquor control laws. More specifically, suppose a place of business allows its employees to smoke indoors in violation of the Smoke Free Illinois Act. The police and health departments have no right to come into any non-public parts of the business without a search warrant and here no warrant is even possible.
Sixth, there is a lot of discussion about whether smoking should be allowed in beer gardens and outdoor eating areas. Notably, an owner has no duty to stop people from smoking in these outdoor areas, under section 15 of the Act, because section 15 only requires an owner to reasonably assure that smoking is prohibited in INDOOR public places and work areas.

Finally, here's the original link to this letter from the IL Smokers Alliance Yahoo group:

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