Thursday, January 10, 2008

Nine Days Into Badly Written Illinois Smoking Ban Law and State Government Still Can't Agree on Enforcement Rules

By Kevin McDermott
Thursday, Jan. 10 2008

SPRINGFIELD, Ill. — Almost two weeks into Illinois' new indoor smoking ban,
state officials haven't yet cleared the air of lingering questions over how it
is to be enforced — and what recourse business owners have if they think
they've been wrongly cited for violations.

The ban remains in effect, as it has since Jan. 1, making it illegal to smoke
in or near bars, restaurants, casinos and other indoor public venues in
Illinois. But there are still no detailed enforcement standards for that ban. A
legislative panel on Wednesday rejected, for the second time, a proposed set of
specific rules.

As a result, it remains unclear how outdoor beer gardens are to be policed,
whether bar owners are responsible for outdoor smoke that drifts inside, and
whether universities can legally conduct smoking-related research in state

What most concerned lawmakers on the panel Wednesday was that the proposed
rules provided no internal appeals process for businesses that are fined for
violating the law.

"The existence of an ashtray (in a restaurant) could trigger an investigation,"
yet there's no way for the restaurant owner to appeal any findings except to
sue in the court system, said Rep. Lou Lang, D-Skokie, a member of the Joint
Administrative Committee on Rules.

That legislative committee, which oversees how state laws are implemented by
state agencies, voted 9-1 against approving rules that were proposed by the
Illinois Department of Public Health. The agency now will have to revise and
resubmit its proposed rules to lawmakers, probably next month.

It was the second time in the past two months that the legislative panel
rejected the agency's proposed rules. Lawmakers expressed frustration at what
they said was the agency's continued failure to address crucial issues of
enforcement and due process.

"The one thing I've heard from my constituents is they don't know what their
rights are," Rep. David Miller, D-Dolton, said at the hearing.

Miller and others chided Public Health Department officials for their
insistence that the proposed rules should be implemented immediately, and then
updated as needed.

"Even though you know there are problems with the rules as written, you want to
proceed?" Miller asked.

After the hearing, department spokeswoman Melaney Arnold said the agency was
disappointed at the committee's decision, and that it will put together yet
another proposed set of rules for lawmakers to consider next month.

"The law still is in place," she added. "As far as smoking in a bar or
restaurant or bowling alley … that is still against the law."

But within that broad prohibition, there remain numerous detailed questions —
to the frustration of business owners who are trying to find ways to continue
to cater to smokers without violating the new law.

One of them, Fast Eddie's tavern of Alton, has conducted a major renovation to
install a beer garden to allow patrons to legally smoke on the premises. Owner
Eddie Sholar said he's confident the facility adheres to the new law as it's
currently written, but he worries that whatever rules are eventually
implemented from Springfield may change that.

"They say we have to obey the law, but they can't even tell you what it is.
Just tell us what it is and we'll do it," Sholar said Wednesday. "It's
ridiculous how Illinois did this. They don't even know what they're doing."

State officials have received about 300 complaints alleging smoking ban
violations by businesses since the ban started Jan. 1, said Arnold, the Public
Health Department spokeswoman. She said she wasn't aware of any fines being
imposed, and that most violators still were being given warning notices because
the law is so new.