March 2008, vol. 9, no. 3 Standing Committee on Government Lawyers
The newsletter of the ISBA’s Standing Committee on Government Lawyers
• FINAL PRINTED ISSUE • This newsletter will be sent exclusively via e-mail from now on. See page 8 of this newsletter to learn how you can be sure you don’t miss any future issues!
Clearing the air on the State’s new smoking ban
By James W. Chipman*
Introduction and background Illinois citizens lose their lives each since followed suit.4 n the legislative drafting process, year from exposure to the hazard of it is common to include in a piece secondhand smoke and that the prob- Requirements of the Act of legislation a provision setting lem cannot be eliminated or reduced The new law protects the public I to safe levels through ventilation or forth the purpose of the bill in order to from exposure to secondhand smoke establish the general tone and intention air cleaning filtration systems. This left by prohibiting smoking in public places of the legislative body. As one reads the General Assembly with just one and places of employment and within the new Smoke Free Illinois Act,1 there option—to eliminate all indoor smok- 15 feet of any entrance to a public is no doubt what the Illinois General ing activities in public places wherever place or place of employment.5 A Assembly was trying to accomplish. practicable. “place of employment” is defined as Citing the findings of the United States Senate Bill 500 (Cullerton, D- “any area under the control of a public Surgeon General, the Environmental Chicago) had 18 sponsors in the Senate or private employer that employees Protection Agency, and the American and 34 in the House. Although popular are required to enter, leave or pass Society of Heating, Refrigerating, and in both legislative chambers, to no one’s through during the course of employ- Air-Conditioning Engineers, Illinois surprise, the measure faced stiff oppo- ment.”6 These areas include offices and lawmakers were concerned with pro- sition from the tobacco companies, work areas, restrooms, conference and tecting the public from the health risks bar owners, restaurateurs, and those classrooms, break rooms and cafeterias 3 associated with indoor exposure to in the hospitality industry. In the end, and other common areas.7 The 15-foot secondhand smoke.2 Reports from these the bill prevailed in the Senate with a ban also applies to windows that open organizations indicate that some 2,900 vote of 34-23-1 and cleared the House and ventilation intakes that serve an by a margin of 73-42-1. The Governor enclosed area.8 There is no requirement signed the bill on July 23, 2007, and it for an employer to provide an outdoor In this issue became effective as Public Act 95-017 shelter for smokers. In fact, an employer on January 1, 2008. may designate additional areas in the Illinois became the 26th state, in workplace as smoke free, such as a • Clearing the air on the State’s addition to Washington, D.C. and non-enclosed area.9 1 new smoking ban ...... Puerto Rico, to pass some form of a The term “public place” is broadly • In-sites ...... 5 smoke free law. On the international defined to include “that portion of any • Attorney General issues scene, Ireland became the first country building or vehicle used by and open opinions ...... 5 to enact a nationwide smoking ban in to the public,”10 including those owned 2004. A number of other countries have or leased by the government.11 One Standing Committee on Government Lawyers interesting government venue where larger commercial establishment or an not yet been resolved. the ban could have a dramatic adverse establishment with any type of liquor, effect is the State’s 28 prisons, which food, or restaurant license is not con- Home rule regulation until the ban went into effect, still sold sidered a retail tobacco store and must The state law still permits local cigarettes in prison commissaries and comply with the Act.20 A retail tobacco control, as long as the local ordinance allowed inmates to light up in cells and store is required to provide an affida- is more stringent than the Act.32 Local elsewhere. Regardless of how many of vit by January 31 of each year to the authorities may also increase fine struc- the approximately 44,000 prisoners in Department stating the percentage of its tures for violations, add enforcement Illinois smoke, the new law means no gross income that was derived from the agencies and protocols, and prohibit more cigarettes anywhere in the facili- sale of tobacco products.21 smoking in other areas.33 Currently, ties at any time. Smoking is also permitted in private there are 45 city and county ordinances Under the Act, smoking is still per- and semi-private rooms in nursing in Illinois banning smoking that were mitted outdoors, but it must take place homes and long-term care facilities either already in effect or were passed 15 feet away from an exit, entrance, where one or more of the occupants after the statewide ban became law.34 open window, or ventilation intake smoke and they have agreed in writing that serves an enclosed area where the to stay in a smoking room.22 Under pro- Rulemaking attempts—up in activity is prohibited. Thus, patrons at posed rulemaking by the Department, smoke? beer gardens, tents, and outdoor patios which is discussed below at length, As background, Illinois law autho- can light up as long as the areas are not these facilities must comply with stat- rizes and requires administrative agen- 12 enclosed or unless a local ordinance utes and administrative rules under cies to promulgate rules to implement 13 bans it. which the facility is licensed and the the purpose of any specific statute fire protection and life safety codes affecting its operations. The Illinois Signage and ashtrays 23 included in those rules. Administrative Procedure Act (IAPA)35 Beginning on January 1, 2008, Last, hotel and motel guest rooms sets forth the steps to be followed in “No Smoking” signs that meet cer- that are designated as smoking rooms order for an agency to properly promul- tain specifications in the Act must be are exempt from the law, provided that gate rules. posted at each entrance to the place the rooms on the same floor are con- The procedures include two notice of employment or public place where tiguous and smoke from these rooms periods. The public comment or first smoking is prohibited by the person does not infiltrate into other areas notice stage begins when an agency 14 24 in control of the place. The required where smoking is prohibited. Another files a notice with the Secretary of State signs may be downloaded from the important requirement is that no more for publication in the Illinois Register.36 Illinois Department of Public Health’s than 25 percent of the rooms in a hotel The public is entitled to at least 45 days (Department) Web site (www.smoke- or motel may be designated as smok- notice so comments may be filed with 25 free.illinois.gov/Smoke-FreeSign.pdf). ing rooms. The number of smoking the agency on the proposed rulemak- Ashtrays must be removed from areas and nonsmoking rooms may not be ing.37 15 where smoking is prohibited. changed, except to permanently add The next stage, the legislative 26 additional nonsmoking rooms. review or second notice period, com- Exemptions Complaints, enforcement, mences when the agency serves writ- Only four specific areas are exempt ten notice on the Joint Committee on from the requirements of the Act.16 and violations Administrative Rules (JCAR),38 a bi-par- Section 35 allows smoking to take Any person, such as an employee tisan agency composed of 12 members place in private residences or other or patron, may file a complaint with of the General Assembly. After various dwelling places unless these areas are the Department, a State certified local reviews of the proposed rule changes used as a child care, adult day care, or public health department, or a local are conducted internally by the JCAR healthcare facility, or any other home- law enforcement agency against an staff, the matter is scheduled to be based business open to the public.17 individual or employer.27 Individuals heard by the JCAR at a monthly meet- Retail tobacco stores in operation can also file a complaint by calling ing in either Springfield or Chicago. The before January 1, 2008, that derive the Department’s toll-free complaint JCAR can approve, object, or recom- more than 80 percent of their gross line at (866) 973-4646 or by filing a mend changes to the proposals.39 revenue from the sale of loose tobacco, written complaint. Complaint forms The final stage in the rulemaking plants, or herbs and cigars, cigarettes, may be accessed online at
Vol. 9, No. 3, March 2008 Standing Committee on Government Lawyers and terms.43 Elsewhere in the rulemak- prohibition is permanent unless: (1) the ing, there are three main areas of focus: agency agrees to satisfactorily modify proprietor responsibilities, outdoor pati- the proposed rulemaking;49 (2) JCAR Standing Committee os, and complaints.44 Proprietors are withdraws the prohibition within 180 on Government obligated to insure that smoking does days;50 or (3) the General Assembly not occur in areas where it is banned, passes a joint resolution within 180 Lawyers stop smoke from infiltrating into days stating that it desires to discontin- Published at least four times per year. areas covered by the Act, post signs, ue the prohibition.51 While Department remove ashtrays, inform employees officials were urged to redraft the Annual subscription rate for ISBA and applicants for employment of the proposals for the next scheduled meet- members: $20. prohibition, and not retaliate against an ing of JCAR on February 14, 2008, the To subscribe, visit www.isba.org or individual who has exercised any right Department’s position was not known call (217)525-1760 under the law.45 Second, smoking is when this edition of the newsletter was permitted in an outdoor patio area pro- submitted to print. OFFICE vided the space is not entirely enclosed In the meantime, with no workable Illinois Bar Center and is controlled by the proprietor.46 administrative rules yet in place and no 424 S. 2nd Street Finally, the rules set out the procedure time frame for their implementation, Springfield, IL 62701 under which a complaint may be some legislators have taken matters Phones: (217) 525-1760 OR 800-252-8908 lodged with either the Department or into their own hands and introduced Web site: www.isba.org other designated officials and the fac- bills to amend the month-old law. Co-Editors tors these agencies may consider in Representative Mike Boland (D-East Kathryn A. Kelly determining whether a violation has Moline), who voted against the ban, 219 S. Dearborn St., Ste. 500 47 occurred. is sponsoring House Bill 4333. The Chicago, IL 60604 After the 45-day first notice period proposal would add veterans’ halls and expired, the rules were scheduled to clubs, like the American Legion and Lynn E. Patton 500 S. Second St. be heard by JCAR at its December 11, Veterans of Foreign Wars, to the list of Springfield, IL 62706 2007, meeting. Committee members exempted places where smoking can postponed the matter until the January occur. Representative Boland believes Managing Editor/Production meeting after citing six problems with the amendment is a way of rewarding Katie Underwood the proposed rules. veterans for their past military service to [email protected] At the meeting on January 9, 2008, the country. Standing Committee on JCAR voted 9-1 to object to the pro- Representative Randy Ramey ®- Government Lawyers posed rulemaking and prohibit its West Chicago), who also opposed the Paul A. Logli, Chair filing with the Secretary of State. The law, is backing legislation that goes one Patrick T. Driscoll, Vice Chair Committee found that the adoption step further. Under House Bill 4184, Lisle A. Stalter, Secretary of this rulemaking would constitute a certain businesses, including riverboat Nancy G. Easum, Ex-Officio serious threat to the public interest and casinos, horse racing tracks, adult Sherri L. Caldwell Hale welfare. The reasons for the objection entertainment facilities, private clubs Galen T. Caldwell and prohibition were as follows: that can document that three-fifths of Francis T. Cermak JCAR objected to and prohibited its membership approves of smoking Tate Chambers filing of the rulemaking because it con- on the premises, some taverns that can James W. Chipman tains no process by which an accused prove that less than 10 percent of its Kathleen M. deGrasse violator can argue that no violation revenue comes from food sales, and Eileen M. Geary Rosalyn B. Kaplan occurred, appeal a finding of a vio- establishments hosting a tobacco con- Kathryn A. Kelly lation, or appeal the amount of the vention, could seek a special smoking Richard J. Krakowski imposed fine. An alleged violator’s only license, just like a liquor license, from Jane E. McBride options are to pay the fine or challenge their local municipality. Mary L. Milano enforcement action through the circuit Both bills have been assigned to William D. Nagel court. Lack of due process threatens the House Environmental Health Elizabeth L. Jensen, Board Liaison the public interest and welfare. The Committee. Janet M. Sosin, Staff Liaison proposed rulemaking may not be filed Other issues that need to be Disclaimer: This newsletter is for subscribers’ personal with the Secretary of State or enforced addressed include whether universities use only; redistribution is prohibited. Copyright Illinois State Bar Association. Statements or expressions of by the Department of Public Health can legally conduct smoking-related opinion appearing herein are those of the authors and for any reason following receipt of research in state facilities and to what not necessarily those of the Association or Editors, and this certification and statement by the extent businesses, with outdoor premis- likewise the publication of any advertisement is not to be construed as an endorsement of the product or ser- Secretary of State for as long as the es that otherwise meet the requirements vice offered unless it is specifically stated in the ad that 48 Filing Prohibition remains in effect. of the law, are liable for smoke that there is such approval or endorsement. migrates into areas where the activity is Articles are prepared as an educational service to mem- Smoldering questions and possible banned. bers of ISBA. They should not be relied upon as a substi- legislative fixes tute for individual legal research. A fast and easy solution? - Don’t The articles in this newsletter are not intended to be used JCAR’s latest action means the con- and may not be relied on for penalty avoidance. troversy over the smoking ban rules hold your breath Postmaster: Please send address changes to the Illinois has only just begun. Under the IAPA, a Several lawmakers tried to expand State Bar Association, 424 S. 2nd St., Springfield, IL 62701-1779.
Vol. 9, No. 3, March 2008 Standing Committee on Government Lawyers the exemption language last year when places, private clubs, gaming facilities, col- 34. According to the Smoke Free Senate Bill 500 was being debated, lege dormitories, healthcare facilities or clin- Illinois Web site (www.smokefreeillinois. but those efforts failed. Public interest ics, enclosed shopping centers, retail service org), the Illinois counties and cities are groups and private organizations will establishments, government facilities, finan- Arlington Heights, Barrington, Bedford no doubt fight attempts in the cur- cial institutions, ticket areas, public hearing Park, Bloomington, Buffalo Grove, Burr facilities, public restrooms, nursing homes, Ridge, Carbondale, Champaign, Chicago, rent legislative session to erode the waiting areas, lobbies, bowling alleys, skat- Cook County, Deerfield, DeKalb, Elk Grove statewide ban or amend other existing ing rinks, reception areas, public convey- Village, Evanston, Hawthorn Woods, provisions. Therefore, the JCAR would ances, like taxi cabs, buses, and shuttles, Highland Park, Hinsdale, Hoffman Estates, appear to be the best venue for solv- and no less than 75 percent of the sleeping Lake County, Lake Forest, Libertyville, ing the Act’s more pressing problems, quarters within a hotel, motel, resort, inn, Lincolnshire, Lindenhurst, Long Grove, such as the due process concern. The lodge, bed and breakfast or other similar McLean County, Mt. Prospect, Naperville, rulemaking process is designed to public accommodation rented to guests. Normal, Northbrook, Oak Park, Orland allow participation from all interested 11. Id. Park, Palatine, Park Forest, Park Ridge, parties—the public, lawmakers, and 12. Id. See definition of “enclosed area”. Riverside, Rolling Meadows, Sangamon special interest groups. The forging of 13. Some municipalities are banning County, Schaumburg, Skokie, Springfield, smoking outdoors. For instance, smoking Tinley Park, Urbana, Vernon Hills, Wheaton, a consensus on a comprehensive set at the beach is prohibited in the cities of and Wilmette. of rules will take time and effort but Chicago, Lake Forest, and Wilmette, while 35. 5 ILCS 100/1-1 et seq. (West 2006). ultimately it should eliminate the need Deerfield, Buffalo Grove, and Oak Park have 36. 5 ILCS 100/5-40(b) (West 2006). for legislative action where opponents banned it in parks. Evanston is considering a 37. Id. would have another opportunity to prohibition on beaches and playgrounds. 38. 5 ILCS 100/5-40(c) (West 2006). rewrite the law. 14. To be codified at 410 ILCS 82/20(a). 39. Id. ______15. To be codified at 410 ILCS 82/20(c). 40. 5 ILCS 100/5-40(d) (West 2006). *The author is the Assistant General 16. To be codified at 410 ILCS 82/35. 41. 5 ILCS 100/5-65(a) (West 2006). Counsel of the Illinois Department of 17. To be codified at 410 ILCS 82/35(1). 42. 31 Ill. Reg. 13672 (2007). Revenue and a member of the ISBA’s 18. To be codified at 410 ILCS 82/35(2). 43. Id. Section 975.10 of the Smoke Free Standing Committee on Government 19. Id. Illinois Code (to be codified at 77 Ill. Adm. Lawyers. The opinions expressed herein are 20. To be codified at 410 ILCS 82/10. Code 975). solely his and not those of the Department 21. To be codified at 410 ILCS 82/35(2). 44. Id. Sections 975.40, 80, and 100 of of Revenue. 22. To be codified at 410 ILCS 82/35(3). the Smoke Free Illinois Code (to be codified 23. Smoke Free Illinois Code, 31 Ill. Reg. at 77 Ill. Adm. Code 975). 1. See Public Act 95-017, effective 13672 (2007) (to be codified at 77 Ill. Adm. 45. Id. Section 975.40 (b) and (c) of the January 1, 2008, to be codified at 410 ILCS Code 975, Section 975.90 (c)) (proposed Smoke Free Illinois Code (to be codified at 82/1 et seq. Oct. 5, 2007). 77 Ill. Adm. Code 975). 2. To be codified at 410 ILCS 82/5. 24. To be codified at 410 ILCS 82/35(4). 46. Id. Section 975.80 of the Smoke Free 3. According to the Tobacco Free Kids 25. Id. Illinois Code (to be codified at 77 Ill. Adm. Web site (www.tobaccofreekids.org), 26. Id. Code 975). the other states are Arizona, California, 27. To be codified at 410 ILCS 82/40(b). 47. Id. Section 975.100 of the Smoke Colorado, Connecticut, Delaware, Florida, 28. To be codified at 410 ILCS 82/45(b). Free Illinois Code (to be codified at 77 Ill. Hawaii, Idaho, Louisiana, Maine, Maryland 29. Id. Adm. Code 975). (Feb. 1, 2008), Massachusetts, Minnesota, 30. Id. 48. 32 Ill. Reg. 1169 – 1/25/08. Montana, Nevada, New Hampshire, New 31. Id. 49. 5 ILCS 100/5-115(d) (West 2006). Jersey, New Mexico, New York, Ohio, 32. To be codified at 410 ILCS 82/65(a). 50. 5 ILCS 100/5-115(a) (West 2006). Oregon (Jan. 1, 2009), Rhode Island, Utah, 33. To be codified at 410 ILCS 82/65(b). 51. 5 ILCS 100/5-115(c) (West 2006). Vermont and Washington. 4. Id. Smoke free countries include Bermuda, Bhutan, England, France, Iceland, Italy, Lithuania, New Zealand, Northern Ireland, Norway, Scotland, Sweden, Uruguay and Wales. In addition, most Canadian provinces/territories and Australian states/territories have enacted such laws. Target your message! 5. To be codified at 410 ILCS 82/15. • Reach the exact practice area you need with no wasted circulation 6. To be codified at 410 ILCS 82/10. • Ads cost less 7. Id. • ISBA newsletter readers ranked their newsletters 2nd highest of all 8. Id. Illinois legal publications in terms of usefulness. (Illinois Bar Journal 9. To be codified at 410 ILCS 82/30. was ranked 1st) 10. To be codified at 410 ILCS 82/10. • 72% of newsletter subscribers either save or route each issue, so your Examples of a “public place” under the Act ad will have staying power. include hospitals, restaurants, bars, tav- For more information contact: erns, retail stores, offices, elevators, indoor Nancy Vonnahmen theatres, libraries, museums, concert halls, Advertising Sales Coordinator educational facilities, auditoriums, enclosed Illinois State Bar Association or partially enclosed sports arenas, meeting rooms, schools, exhibition halls, commercial 800-252-8908 or 217-747-1437 establishments, convention facilities, polling
Vol. 9, No. 3, March 2008 Standing Committee on Government Lawyers
In-Sites
o Green! There are many coopamerica.org>,
Better World Shopper,
Attorney General issues opinions
By Lynn Patton
nder section 4 of the ion Nos. 07-001 through 07-003 and illinoisattorneygeneral.gov/opinions/ Attorney General Act (15 informal opinion Nos. I-07-051 through index.html>. UILCS 205/4 (West 2006), as I-07-057 that may be of interest to the amended by Public Act 95-699, effec- government bar. Opinion No. 07-001 tive November 9, 2007), the Attorney Copies of an opinion may be Issued December 24, 2007 General is authorized, upon request, to requested by contacting the Opinions furnish written legal opinions to State Bureau in the Attorney General’s Overage Reports under the State officers and State’s Attorneys on mat- Springfield office at (217) 782-9070. Officials and Employees Ethics Act ters relating to their official duties. The Copies of official opinions may also be Pursuant to section 20-65 of the following is a summary of official opin- found on the internet at Vol. 9, No. 3, March 2008 Standing Committee on Government Lawyers Act, if an Executive Inspector General vided by law, county election commis- is an actual copy of the judgment (EIG) fails to complete an investigation sions are subject to and must comply order, signed and certified as true. within six months after opening an with the Local Records Act if destroying Delinquency percentage rates should investigation, he or she must submit an or otherwise disposing of the public be applied only to the original judg- overage report to both the Commission records in their custody. Nothing in the ment amount and should not be calcu- and the “appropriate ultimate juris- Federal or State election laws exempts lated on a cumulative or compounded dictional authority” setting forth the county election commissions from sat- basis, nor should delinquency rates general nature of the allegation and the isfying the Local Records Act’s require- be applied to restitution that may reason for failing to complete the inves- ments with regard to public records, be ordered by the court. Notice to tigation within six months. Therefore, including election materials, in their those assessed delinquency charges is the EIG for the Agencies of the Illinois possession. 50 ILCS 205/3, 4, 7 (West required, but personal or actual notice Governor (EIGG) is under a statutory 2006); 42 U.S.C. §1974 (2000). is not necessary. At the defendant’s duty to notify the individual board of trustees of the specific State university request, the State’s Attorney should Informal Opinion No. I-07-051 prepare and the clerk should record a or community college whose officer Issued November 1, 2007 or employee is the subject of an inves- release of lien once full payment has been made. Any administrative costs tigation of the general nature of the Conflict of Interest–Firefighter or incurred by the clerk of the court in allegation or information giving rise to Paramedic Serving as Fire Protection collecting unpaid judgment balances the investigation and the reasons for District Trustee may be covered by the additional the EIGG’s failure to complete that par- Section 4 of the Fire Protection amounts collected. 705 ILCS 105/16 ticular investigation within six months. District Act generally prohibits fire pro- Accordingly, the EIGG does not satisfy (West 2006); 725 ILCS 5/102-15, tection district trustees from having a his duty to report overage investigations 124A-5, 124A-10 (West 2006); 730 personal pecuniary interest in any con- to the appropriate ultimate jurisdic- ILCS 5/5-5-6 (West 2006), as amended tract entered into by the fire protection tional authority by simply distributing by Public Act 95-331, effective August district beyond the minimal contract a single overage report to the boards 21, 2007; 735 ILCS 5/12-183 (West amounts set forth therein, including of trustees of all of the State’s universi- 2006). ties and community colleges. 5 ILCS contracts between a fire protection dis- 430/20-65 (West 2006). trict and a firefighter or paramedic for Informal Opinion No. I-07-054 services as such. However, section 12 Issued December 13, 2007 Opinion No. 07-002 of the Local Governmental Employees Issued December 24, 2007 Political Rights Act authorizes mem- “Additional Corporate Tax” Levy by a bers of fire protection districts or fire Park District Subject to the Property Tax Public Access to Search Warrant departments to serve in any elected or Extension Limitation Law Information Prior to the Final appointed public office, including the Park districts that are subject to the Disposition of a Case office of fire protection district trustee. Property Tax Extension Limitation Law Complaints for search warrants, Therefore, construing the two statu- (PTELL) and that have never levied for accompanying affidavits or other evi- tory provisions together, a firefighter or the additional tax authorized by sec- dence in support thereof, and the war- paramedic may serve as a fire protec- tion 5-3 of the Park District Code must rants themselves are subject to public tion district trustee, but he or she must obtain referendum approval in accor- inspection pursuant to section 16 of the abstain from voting on matters relating dance with section 18-190 of PTELL Clerks of Courts Act once the warrants to his or her compensation or benefits in order to levy the additional tax. 35 have been returned to the court. There received from the fire protection dis- ILCS 200/18-190 (West 2006); 70 ILCS is no statutory or other authority that trict. 50 ILCS 135/12 (West 2006), as 1205/5-3 (West 2006). permits a circuit clerk to unilaterally amended by Public Act 95-142, effec- seal or impound complaints for search tive August 13, 2007; 70 ILCS 705/4 Informal Opinion No. I-07-055 warrants, affidavits, or the search war- (West 2006). Issued December 13, 2007 rants themselves. Absent a court order otherwise providing, therefore, circuit Informal Opinion No. I-07-053 Amendment of County Zoning clerks must make these documents Issued December 6, 2007 Ordinance available to the public. 5 ILCS 140/1 (1) A county may not effectuate a et seq. (West 2006); 705 ILCS 105/16 Liens on Property for Fines and Costs of comprehensive rezoning through the (West 2006); 725 ILCS 5/108-4 (West Prosecution adoption of a single map amendment. 2006), as amended by Public Act 95- Section 124A-10 of the Code of (2) A county may use overlay zoning 331, effective August 21, 2007. Criminal Procedure of 1963 applies as long as the restrictions imposed in to all criminal offenses, whether clas- an overlay district do not exceed the Opinion No. 07-003 sified as felonies or misdemeanors county’s general zoning authority. (3) Issued December 26, 2007 but not juvenile court proceedings. A county may use its zoning ordinance For purposes of section 124A-10, a to protect natural areas and wildlife Applicability of the Local Records court-ordered payment schedule is habitat, prevent pollution, conserve Act to the Records of County Election implemented upon entry of the court natural resources, and preserve scenic Commissions order. A certified copy of a judgment beauty without the adoption of a Land Except as may be otherwise pro- Resource Management Plan. (4) A Vol. 9, No. 3, March 2008 Standing Committee on Government Lawyers non-home-rule county’s zoning ordi- Informal Opinion No. I-07-056 unique to each hospital staff member nance may not authorize private par- Issued December 28, 2007 and the surrounding circumstances. ties to convey development rights from Hospital personnel in the circumstances one parcel to another. (5) Although a Immunity and Indemnification of set out above are not entitled to civil full legal description of the property Hospital Personnel Assisting Law immunity under section 107-8 of the included in a map amendment is not Enforcement Officers With Blood Tests Code of Criminal Procedure of 1963. 5 specifically required, it is advisable to of DUI Suspects ILCS 350/0.01 et seq. (West 2006); 625 use the legal description. (6) Although Hospital personnel who draw blood ILCS 5/11-500.1 (West 2006); 725 ILCS a full legal description of the property samples from individuals who are 5/107-8 (West 2006). included in a text amendment is not arrested for or suspected of violating specifically required, it is likewise section 11-501 of the Illinois Vehicle Informal Opinion No. I-07-057 advisable to use the legal description. Code, the statutory provision address- Issued December 28, 2007 (7) Any municipality that has a zon- ing driving while under the influence ing ordinance in effect and shares a of alcohol, other drugs, or intoxicating Validity of a Home Rule Tax on Fountain boundary with the land to be rezoned compounds, may be entitled to civil Soft Drinks by the county has protest rights under immunity under section 11-500.1 of Section 8-11-6b of the Illinois section 5-12014 of the Counties Code, the Illinois Vehicle Code, depending on Municipal Code generally preempts the regardless of whether the municipali- the particular facts and circumstances authority of home rule municipalities to ty’s property is significantly affected by of a given situation. Hospital person- impose a separate, stand-alone tax on a text amendment. (8) Under section nel in the circumstances indicated soft drinks. However, home rule munic- 5-12014 of the Counties Code, acre- above are not entitled to representation ipalities may impose a tax on soft drinks age and perimeters of non-contiguous and indemnification under the State to the extent that soft drinks properly parcels should be considered together Employee Indemnification Act, unless fall within a category of taxes which a in determining protest rights. (9) When they constitute “State employees” as municipality is authorized to levy on property in more than one township is that term is used in the Indemnification a general category of food, beverages, affected by a single map amendment, Act and depending on the particular other goods, or tangible personal prop- a hearing should be held in one town- facts and circumstances of the situation. erty. 65 ILCS 5/8-11-6a (West 2006), as ship, recessed, and then reconvened Whether section 11-501 of the Illinois amended by Public Act 95-544, effec- in the other township. 50 ILCS 805/1, Vehicle Code or the State Employee tive August 28, 2007; 65 ILCS 5/8-11- 2, 4 (West 2006); 55 ILCS 5/5-12014 Indemnification Act applies will require 6b (West 2006). (West 2006). a case-by-case analysis of the facts The Center for CLE Powered by FastCLE What Is FastCLE? LAW ED FastCLE is the most convenient way to obtain MCLE Effective • Convenient • Affordable credits and build your reference library. ISBA LawEd programs are videotaped and available for you to purchase in multiple formats including online delivery, podcast, DVD, audio CD, and video CD-Rom. Watch or listen to the program from your work or home computer or your portable MP3 player. How Do I Use FastCLE? Using FastCLE is so easy! Go to www.isba.org/FastCLE and choose from the list what program and media option you’d like to purchase. All programs include simple instructions for submitting questions to speakers and certifying MCLE. Curious to see what an online program entails? Launch the sample ISBA online program with just one click, no purchase or login required! CLE that won’t tie you up. Start earning ✦ So Fast So Simple MCLE credit today! Illinois has a history of some pretty good lawyers. www.isba.org/ We’re out to keep it that way. anytime anywhere FastCLE Vol. 9, No. 3, March 2008 Standing Committee on Government Lawyers Don’t Miss the Boat! The Standing Committee on Government Lawyers newsletter will be converted to electronic distribution and will no longer be sent via postal mail. This will make for more timely delivery and help keep costs—and dues—down. This will be the last issue of Government Lawyers we deliver in hard copy. And if we don’t have your e-mail address, we can’t send it to you electronically. If you haven’t given us your e-mail address yet and you want to keep getting Government Lawyers, go to information there to ensure you don’t miss a single issue!. Vol. 9 No. 3 No. 9 Vol. Permit No. 820 No. Permit arch 2008 arch M Springfield, Ill. Springfield, AID P Springfield, Illinois 62701-1779 Illinois Springfield, U.S. POSTAGE U.S. Illinois Bar Center Bar Illinois rg. O on-Profit N overnment Lawyers overnment G on Committee Standing