In Illinois, Sidewalk Smoking Is Against the Law

By Mike Fak

[March 10, 2008]  Well, we are getting into our third month of a statewide ban on smoking in every public place, and the effects will soon be coming down the pike. The effects I'm talking about are what the ban will do to sales tax revenues to already badly strapped cities and counties that rely on sales tax dollars generated to fill the gap that dwindling state support has created.

To be sure, proponents of the smoking ban say there will be little effect, but the reports that fill over 456,000 Google hits beg to differ. Businesses that were heavily dependent on smokers -- such as casinos, bars and taverns, hotels with hospitality centers, and convention centers -- in other states that instituted a ban show significant drops in clientele. Already in Illinois, casino profits are off 17 percent, and the warm weather that will allow gamblers to drive a few hours' distance has yet to come.

But that's the way it is, and we have to live with it. The problem is that the law we have isn't defined enough and has flaws that make it unfair to business owners.

Now this isn't another rehash as to whether we should be a nonsmoking state or not. That issue is settled. Surely no one can say that cigarette smoke is healthy for a person. The question is: Has Illinois created a law that is draconian in measure and just begs to be challenged or not enforced due to vagueness? The Illinois Joint Committee on Administrative Rules believes the law is flawed to the extent it should not be enforced. Currently in Illinois, if an individual or business is cited, the only alternatives are to pay the fine or go to circuit court. The JCAR states that not having a system of ready appeal flaws the law to the extent it should not be enforced at all.

There is also a great debate over who should enforce the new law. County health departments across the state championed this new law. They should have, of course. Smoking is the second-leading cause of health problems in our nation, right behind obesity and the illnesses caused by being overweight. If anyone should be a proponent of a smoking ban, it should be health departments, but many want their influence to end with their endorsement.

The problem is that with budgets wrung ever tighter, health departments want police and sheriff's departments to enforce the law, but that isn't sitting well with many law enforcement agencies, also with manpower restrictions, and so the debate of who writes the tickets is raging in communities across the state.

To make things even less clear, the Illinois law specifically states that a person cannot smoke within 15 feet of a business entrance or window or ventilation system. I ask you to take a walk downtown in Lincoln to see what this "letter of the law" encompasses. In effect, according to the Illinois law, any person walking down the street, smoking a cigarette can not only be fined, but so can all the businesses this person walks past, since they will have a smoker within 15 feet of their door.

You ask that surely these businesses either won't get fined or can appeal the citation. But there currently is no appeal process. If the letter of the law is followed, businesses could be fined for simply having non-patrons outside their doors smoking. Every day we read in the news of someone spending years in prison for a crime they didn't commit. Can you honestly believe that as time goes on there won't be instances where business owners won't start getting fined for something they had no control over? What are businesses supposed to do? Hire someone to stand outside their establishments to make sure no smoker gets within 15 feet of their doors? Then again, if a business operator chases someone down the block, could they be then cited for aiding and abetting since they will be causing the smoker to make the next business in violation of the law?

To make the matter all the more ridiculous, businesses that currently have an ashtray outside their doors are not in compliance with the law, as ashtrays in smoke-free areas are not permitted. One would think that someone with a truckload of citations could probably collect enough in fines to even get a Rod Blagojevich-run state out of debt. After all, if the ashtrays disappear, a smoker can be fined for littering, so it's a win-win for the state.

The issue is simple. The Illinois Legislature and governor have created a smoke-free Illinois. It also should be required that they set up a system for enforcement and practicality of implementation. My observations show that a great majority of Illinoisans are following the law whether they like it or not. The problem is that no one has defined the law to the point that it makes sense, is reasonable and allows people to defend themselves without spending huge amounts of time and money to show they were innocent.

I'm not asking for the law to be dropped. I'm asking that it be changed and corrected so it makes sense and puts to bed once and for all that there will be no exceptions coming later. Only then can Illinois businesses prepare for making a living in a smoke-free Illinois.

[By MIKE FAK]

Readers can find more of Mike Fak's writing at www.searchwarp.com and www.problogs.com.=