The newsletter of the ISBA’s Standing Committee on Government Lawyers
Clearing the air on the State’s new smoking ban
Introduction and background
In the legislative drafting process, it is common to include in a piece of legislation a provision setting forth the purpose of the bill in order to establish the general tone and intention of the legislative body. As one reads the new Smoke Free Illinois Act,1 there is no doubt what the Illinois General Assembly was trying to accomplish. Citing the findings of the United States Surgeon General, the Environmental Protection Agency, and the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Illinois lawmakers were concerned with protecting the public from the health risks associated with indoor exposure to secondhand smoke.2 Reports from these organizations indicate that some 2,900 Illinois citizens lose their lives each year from exposure to the hazard of secondhand smoke and that the problem cannot be eliminated or reduced to safe levels through ventilation or air cleaning filtration systems. This left the General Assembly with just one option—to eliminate all indoor smoking activities in public places wherever practicable.
Senate Bill 500 (Cullerton, D-Chicago) had 18 sponsors in the Senate and 34 in the House. Although popular in both legislative chambers, to no one’s surprise, the measure faced stiff opposition from the tobacco companies, bar owners, restaurateurs, and those in the hospitality industry.3 In the end, the bill prevailed in the Senate with a vote of 34-23-1 and cleared the House by a margin of 73-42-1. The Governor signed the bill on July 23, 2007, and it became effective as Public Act 95-017 on January 1, 2008.
Illinois became the 26th state, in addition to Washington, D.C. and Puerto Rico, to pass some form of a smoke free law. On the international scene, Ireland became the first country to enact a nationwide smoking ban in 2004. A number of other countries have since followed suit.4
Requirements of the Act
The new law protects the public from exposure to secondhand smoke by prohibiting smoking in public places and places of employment and within 15 feet of any entrance to a public place or place of employment.5 A “place of employment” is defined as “any area under the control of a public or private employer that employees are required to enter, leave or pass through during the course of employment.”6 These areas include offices and work areas, restrooms, conference and classrooms, break rooms and cafeterias and other common areas.7 The 15-foot ban also applies to windows that open and ventilation intakes that serve an enclosed area.8 There is no requirement for an employer to provide an outdoor shelter for smokers. In fact, an employer may designate additional areas in the workplace as smoke free, such as a non-enclosed area.9
The term “public place” is broadly defined to include “that portion of any building or vehicle used by and open to the public,”10 including those owned or leased by the government.11 One interesting government venue where the ban could have a dramatic adverse effect is the State’s 28 prisons, which until the ban went into effect, still sold cigarettes in prison commissaries and allowed inmates to light up in cells and elsewhere. Regardless of how many of the approximately 44,000 prisoners in Illinois smoke, the new law means no more cigarettes anywhere in the facilities at any time.
Under the Act, smoking is still permitted outdoors, but it must take place 15 feet away from an exit, entrance, open window, or ventilation intake that serves an enclosed area where the activity is prohibited. Thus, patrons at beer gardens, tents, and outdoor patios can light up as long as the areas are not enclosed12 or unless a local ordinance bans it.13
Signage and ashtrays
Beginning on January 1, 2008, “No Smoking” signs that meet certain specifications in the Act must be posted at each entrance to the place of employment or public place where smoking is prohibited by the person in control of the place.14 The required signs may be downloaded from the Illinois Department of Public Health’s (Department) Web site (www.smoke-free.illinois.gov/Smoke-FreeSign.pdf). Ashtrays must be removed from areas where smoking is prohibited.15
Only four specific areas are exempt from the requirements of the Act.16 Section 35 allows smoking to take place in private residences or other dwelling places unless these areas are used as a child care, adult day care, or healthcare facility, or any other home-based business open to the public.17
Retail tobacco stores in operation before January 1, 2008, that derive more than 80 percent of their gross revenue from the sale of loose tobacco, plants, or herbs and cigars, cigarettes, pipes, and other smoking devices for burning tobacco and related smoking accessories are also exempt.18 A retail tobacco store that begins operation after January 1, 2008, may qualify for an exemption only if it is located in a freestanding structure occupied solely by the business and smoke from the business does not reach an enclosed area where smoking is banned.19 A tobacco department or section of a larger commercial establishment or an establishment with any type of liquor, food, or restaurant license is not considered a retail tobacco store and must comply with the Act.20 A retail tobacco store is required to provide an affidavit by January 31 of each year to the Department stating the percentage of its gross income that was derived from the sale of tobacco products.21
Smoking is also permitted in private and semi-private rooms in nursing homes and long-term care facilities where one or more of the occupants smoke and they have agreed in writing to stay in a smoking room.22 Under proposed rulemaking by the Department, which is discussed below at length, these facilities must comply with statutes and administrative rules under which the facility is licensed and the fire protection and life safety codes included in those rules.23
Last, hotel and motel guest rooms that are designated as smoking rooms are exempt from the law, provided that the rooms on the same floor are contiguous and smoke from these rooms does not infiltrate into other areas where smoking is prohibited.24 Another important requirement is that no more than 25 percent of the rooms in a hotel or motel may be designated as smoking rooms.25 The number of smoking and nonsmoking rooms may not be changed, except to permanently add additional nonsmoking rooms.26
Complaints, enforcement, and violations
Any person, such as an employee or patron, may file a complaint with the Department, a State certified local public health department, or a local law enforcement agency against an individual or employer.27 Individuals can also file a complaint by calling the Department’s toll-free complaint line at (866) 973-4646 or by filing a written complaint. Complaint forms may be accessed online at <www.smoke-free.illinois.gov/Smoke-free_PrintableComplaintForm.pdf>.
Businesses that violate the law are fined on a progressive scale.28 Fines range from $250 for a first offense29 to $2,500 for multiple infractions within one year of the first violation.30 An individual violator may be fined from $100 to $250.31 The question of how a violator can appeal or challenge a citation is one of several hot button issues that has not yet been resolved.
Home rule regulation
The state law still permits local control, as long as the local ordinance is more stringent than the Act.32 Local authorities may also increase fine structures for violations, add enforcement agencies and protocols, and prohibit smoking in other areas.33 Currently, there are 45 city and county ordinances in Illinois banning smoking that were either already in effect or were passed after the statewide ban became law.34
Rulemaking attempts—up in smoke?
As background, Illinois law authorizes and requires administrative agencies to promulgate rules to implement the purpose of any specific statute affecting its operations. The Illinois Administrative Procedure Act (IAPA)35 sets forth the steps to be followed in order for an agency to properly promulgate rules.
The procedures include two notice periods. The public comment or first notice stage begins when an agency files a notice with the Secretary of State for publication in the Illinois Register.36 The public is entitled to at least 45 days notice so comments may be filed with the agency on the proposed rulemaking.37
The next stage, the legislative review or second notice period, commences when the agency serves written notice on the Joint Committee on Administrative Rules (JCAR),38 a bi-partisan agency composed of 12 members of the General Assembly. After various reviews of the proposed rule changes are conducted internally by the JCAR staff, the matter is scheduled to be heard by the JCAR at a monthly meeting in either Springfield or Chicago. The JCAR can approve, object, or recommend changes to the proposals.39
The final stage in the rulemaking process is adoption.40 In order to implement the changes, the agency must file certain documentation with the Secretary of State after the expiration of the second notice period.41
The Department’s proposed rules on the Smoke Free Illinois Act first appeared in the Illinois Register on October 5, 2007.42 The rules, which may be accessed at <www.ilsos.net/departments/index/register/register_volume31_issue40.pdf>, define 65 words and terms.43 Elsewhere in the rulemaking, there are three main areas of focus: proprietor responsibilities, outdoor patios, and complaints.44 Proprietors are obligated to insure that smoking does not occur in areas where it is banned, stop smoke from infiltrating into areas covered by the Act, post signs, remove ashtrays, inform employees and applicants for employment of the prohibition, and not retaliate against an individual who has exercised any right under the law.45 Second, smoking is permitted in an outdoor patio area provided the space is not entirely enclosed and is controlled by the proprietor.46 Finally, the rules set out the procedure under which a complaint may be lodged with either the Department or other designated officials and the factors these agencies may consider in determining whether a violation has occurred.47
After the 45-day first notice period expired, the rules were scheduled to be heard by JCAR at its December 11, 2007, meeting. Committee members postponed the matter until the January meeting after citing six problems with the proposed rules.
At the meeting on January 9, 2008, JCAR voted 9-1 to object to the proposed rulemaking and prohibit its filing with the Secretary of State. The Committee found that the adoption of this rulemaking would constitute a serious threat to the public interest and welfare. The reasons for the objection and prohibition were as follows:
JCAR objected to and prohibited filing of the rulemaking because it contains no process by which an accused violator can argue that no violation occurred, appeal a finding of a violation, or appeal the amount of the imposed fine. An alleged violator’s only options are to pay the fine or challenge enforcement action through the circuit court. Lack of due process threatens the public interest and welfare. The proposed rulemaking may not be filed with the Secretary of State or enforced by the Department of Public Health for any reason following receipt of this certification and statement by the Secretary of State for as long as the Filing Prohibition remains in effect.48
Smoldering questions and possible legislative fixes
JCAR’s latest action means the controversy over the smoking ban rules has only just begun. Under the IAPA, a prohibition is permanent unless: (1) the agency agrees to satisfactorily modify the proposed rulemaking;49 (2) JCAR withdraws the prohibition within 180 days;50 or (3) the General Assembly passes a joint resolution within 180 days stating that it desires to discontinue the prohibition.51 While Department officials were urged to redraft the proposals for the next scheduled meeting of JCAR on February 14, 2008, the Department’s position was not known when this edition of the newsletter was submitted to print.
In the meantime, with no workable administrative rules yet in place and no time frame for their implementation, some legislators have taken matters into their own hands and introduced bills to amend the month-old law. Representative Mike Boland (D-East Moline), who voted against the ban, is sponsoring House Bill 4333. The proposal would add veterans’ halls and clubs, like the American Legion and Veterans of Foreign Wars, to the list of exempted places where smoking can occur. Representative Boland believes the amendment is a way of rewarding veterans for their past military service to the country.
Representative Randy Ramey ®-West Chicago), who also opposed the law, is backing legislation that goes one step further. Under House Bill 4184, certain businesses, including riverboat casinos, horse racing tracks, adult entertainment facilities, private clubs that can document that three-fifths of its membership approves of smoking on the premises, some taverns that can prove that less than 10 percent of its revenue comes from food sales, and establishments hosting a tobacco convention, could seek a special smoking license, just like a liquor license, from their local municipality.
Both bills have been assigned to the House Environmental Health Committee.
Other issues that need to be addressed include whether universities can legally conduct smoking-related research in state facilities and to what extent businesses, with outdoor premises that otherwise meet the requirements of the law, are liable for smoke that migrates into areas where the activity is banned.
A fast and easy solution? - Don’t hold your breath
Several lawmakers tried to expand the exemption language last year when Senate Bill 500 was being debated, but those efforts failed. Public interest groups and private organizations will no doubt fight attempts in the current legislative session to erode the statewide ban or amend other existing provisions. Therefore, the JCAR would appear to be the best venue for solving the Act’s more pressing problems, such as the due process concern. The rulemaking process is designed to allow participation from all interested parties—the public, lawmakers, and special interest groups. The forging of a consensus on a comprehensive set of rules will take time and effort but ultimately it should eliminate the need for legislative action where opponents would have another opportunity to rewrite the law.