Legal Q & A

Statewide Ban

By Roger Huebner, General Counsel, IML Jerry Zarley, Paralegal, IML

(June 2007)

This monthly column examines issues of general concern to municipal officers. It is not meant to provide legal advice and is not a substitute for consulting with your municipal attorney. As always, when confronted with a legal question, contact your municipal attorney as certain unique circumstances may alter any conclusions reached herein.

In the April 2006 edition of the Municipal Review,1 we examined how some municipalities in Illinois were regulating smoking in public places as a result of the amendment to the Illinois Clean Indoor Air Act,2 which allowed municipalities to regulate smoking in public places.3 In that column, we explained the varying degrees of smoking regulation throughout the State. Some municipalities, like Springfield, completely banned smoking in all public indoor places; some, like Chicago, had exceptions or extensions for certain public facilities such as bars; some, like Deerfield, banned smoking in all indoor and outdoor public places; and, many municipalities had no at all, except for what was already required by State law (e.g. smoking prohibited near gas pumps, and non-smoking accommodations at ). However, both Chambers of the Illinois General Assembly recently approved a statewide smoking ban, known as the Smoke Free Illinois Act, that the Governor is expected to sign.

Q: What’s the difference between the Smoke Free Illinois Act and the Illinois Clean Indoor Air Act?

A: The Smoke Free Illinois Act (SB 500) if signed into law by the Governor as expected, will repeal the Illinois Clean Indoor Air Act, and take smoking regulations out of the hands of local governments and put them in the hands of the State government.

The Smoke Free Illinois Act is a lot larger and more restrictive than its predecessor, the Illinois Clean Indoor Air Act. Section 15 of the Smoke Free Illinois Act provides:

Section 15. Smoking in public places, places of employment, and governmental vehicles prohibited. No person shall smoke in a public place or in any place of employment or within 15 feet of any entrance to a public place or place of employment. No person may smoke in any vehicle owned, leased, or operated by the State or a political subdivision of the State. Smoking is prohibited in indoor public places and workplaces unless specifically exempted by Section 35 of this Act.

Section 35 allows people to smoke in “[p]rivate residences or dwelling places, except when used as a child care, adult day care, or healthcare facility or any other -based business open to the public.” With some exceptions, people will still be able to smoke in stores, private and semi-private rooms in nursing and long-term care facilities, and hotel and motel sleeping rooms that are designated as smoking rooms.

The definitions have also expanded considerably under the Smoke Free Illinois Act. For example, In the Clean Indoor Air Act, “smoking” was defined as “the act of inhaling the smoke from or possessing a lighted cigarette, cigar, pipe, or any other form of tobacco or similar substance used for smoking.” The Smoke Free Illinois Act, on the other hand, will define “smoking” as “the carrying, smoking, burning, inhaling, or exhaling of any kind of lighted pipe, cigar, cigarette, hookah, weed, herbs, or any other lighted smoking equipment.”

The definition of a “public place” was also expanded. Section 10 of the Smoke Free Illinois Act defines “public place” as:

. . . that portion of any building or vehicle used by and open to the public, regardless of of whether the building or vehicle is owned in whole or in part by private persons or entities, the State of Illinois, or any other public entity and regardless of whether a fee is charged for admission, included a minimum distance, as set forth in Section 70 of this Act, of 15 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited. A “public place” does not include a private residence unless the private residence is used to provide licensed child care, foster care, or other similar social service care on the premises. . . .

The definition of “public place” in Section 10 goes on to explain, yet not limit, a variety of specific places.

The Smoke Free Illinois Act added a definition for “place of employment.”

“Place of employment” means 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, including, but not limited to entrances and exits to places of employment, including a minimum distance, as set forth in Section 70 of this Act, of 15 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited; offices and work areas; restrooms; conference and classrooms; break rooms and cafeterias; and other common areas. A private residence or home-based business, unless used to provide licensed child care, foster care, adult care, or other similar social service care on the premises, is not a “place of employment.”

Section 70 of the Smoke Free Illinois Act includes other smoking prohibitions.

Section 70. Entrances, exits, windows, and ventilation intakes. Smoking is prohibited within a minimum distance of 15 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited under this Act so as to ensure that tobacco smoke does not enter the area through entrances, exits, open windows, or other means.

Section 20 of the Smoke Free Illinois Act requires the posting of no smoking signs and the removal of all ashtrays.

(a) “No Smoking” signs or the international “No Smoking” symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it, shall be clearly and conspicuously posted in each public place and place of employment where smoking is prohibited by this Act by the owner, operator, manager, or other person in control of that place. (b) Each public place and place of employment where smoking is prohibited by this Act shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited. (c) All ashtrays shall be removed from any area where smoking is prohibited by this Act by the owner, operator, manager, or other person having control of the area.

Finally, while violations of the Clean Indoor Air Act where considered a petty offense,4 a violation of the Smoke Free Illinois Act can result in some substantial fines. Paragraph (b) of Section 45 provides:

(b) A person who smokes in an area where smoking is prohibited under Section 15 of this Act shall be fined in an amount that is not less that $100 and not more than $250. A person who owns, operates, or otherwise controls a public place or place of employment that violates Section 15 of this Act shall be fined (i) not less than $250 for the first violation, (ii) not less than $500 for the second violation within one year after the first violation, and (iii) not less than $2,500 for each additional violation within one year after the first violation.

Please note that while SB 500 has been approved by the State legislature, the General Assembly is still in session and some additional bills are pending that would affect the provisions of SB 500. For instance, an exemption for some riverboat casinos in Illinois has been proposed in HB 25. If included, gambling facilities conducted pursuant to the Riverboat Gambling Act located within five miles of the Illinois border will be exempt from the provisions of the Smoke Free Illinois Act for five years (until January 1, 2013).

According to the legislative findings in Section 5 of the Smoke Free Illinois Act, the purpose of SB 500 is a public health and welfare issue. According to a variety of media reports since the amendment to the Clean Indoor Air Act took effect on January 1, 2006, several Illinois municipalities began enacting their various smoking bans, SB 500 will level the playing field for all businesses, such as bars, that cater to smokers, because smoking won’t be allowed in any place open to the general public throughout the State.

1 See 85 ILLINOIS MUNICIPAL REVIEW 21, No. 4 (April 2006). 2 410 ILCS 80/1 et. seq. 3 P.A. 94-517, eff. 1-1-06. 4 410 ILCS 80/7

© 2007 Illinois Municipal League