By DENNIS GRUBAUGH
Seven years after the Smoke Free Illinois Act went into effect, rules of implementation are still in the works, stymied amid procedural delays that have kept the law from being fully enforced.
Particularly thorny is how the law is to be applied in outdoor venues, mainly bars.
“Like many people throughout the state, I’m frustrated that the Department of Public Health has taken so long to get rules approved for beer gardens” state Sen. David Koehler told the Illinois Business Journal recently. “Hopefully, we’ll have rules in place soon. If they end up being problematic, I may consider further legislation.”
Koehler, a Peoria Democrat, called a hearing of the Senate Labor Subcommittee on Employment Issues in August 2012 to inquire why rules weren’t in place. The hearing was prompted by an incident in which many Peoria-area bars and patrons received smoking tickets for violating the Smoke Free Illinois Act when they thought they were in compliance with the law.
In at least one case, Koehler said, the bar owners had explicitly sought the advice of the public health department before they started construction on their beer garden.
The Senate committee directed the department to write official rules about smoking in outdoor restaurant patios and bar beer gardens.
“We really need to clarify rules for the police, as well as restaurant and bar owners,” Koehler said in a constituent letter on his website. “We can’t have Public Health telling bar owners one thing and the police enforcing another. That’s just not fair for anyone.”
Koehler joined Sens. Darin LaHood, Linda Holmes, Pam Althoff and Ed Maloney to write a letter to the Department of Public Health, asking it to address the issue. The letter also included a copy of Senate Bill 842, which Koehler drafted with the help of Peoria State’s Attorney Jerry Brady. The legislation lays out what Koehler and Brady believe is a reasonable framework for enforcing the act in outdoor areas.
“The purpose of the smoking ban was to protect people — especially employees — from second-hand smoke,” Koehler said earlier. “When people are outside, there’s enough ventilation that second-hand smoke isn’t nearly as big an issue, so patios and beer gardens give restaurants and bars a way to cater to smoking patrons without inconveniencing others.”
The proposed framework clarifies that smoking is allowed outdoors as long as smokers stay at least 15 feet away from doors and open windows and either the roof or one or more walls are open to fresh air. It also requires employers to allow their workers to opt out of working in areas where people might be smoking.
A spokeswoman for Illinois Department of Public Health is advising patience — the rules are in the works.
“The proposed rules for implementation of the Smoke-Free Illinois Act, published in the Aug. 15, 2014, Illinois Register, have been through first notice – the public comment period. The Illinois Department of Public Health is reviewing and drafting responses to those comments before submitting proposed rules for second notice to the Joint Committee on Administrative Review,” said Melaney Arnold, public information officer.
The Joint Committee, called JCAR, is a service agency of the General Assembly. It has 45 more days to approve or reject the rules once the department forwards them.
“It is not uncommon for the rules process to take nine months or longer,” Arnold said.
The proposed rules take up 10 pages in the register.
An earlier attempt at formulating the rules was rejected by JCAR as incomplete, Koehler said, thus prompting his follow-up legislation.
The law has been in effect since January 2008, and even the dourest of smoking critics agrees that the measure has had noticeable impact. Many bar owners have spent thousands of dollars on additions or changes to comply with requirements.
The biggest concern is the “renegade bars” that do not enforce the smoking law, said Kathy Drea, vice president of advocacy for the American Lung Association of the Upper Midwest, based in Springfield.
“But as the years have passed, we’ve seen many of those bars change hands and now they’ve become smoke-free.”
She added: “We’ve had issues with local state’s attorneys refusing to uphold the law, not backing up their local health departments — particularly in smaller counties, where the state’s attorney is the legal counsel for the local health unit.”
The Department of Public Health gets smoking complaints and disperses them to local health departments, which also get complaints sent directly to them by the public. Law enforcement also receives them. Because of that, an exact number of complaints is difficult to pin down.
Winter brings out some of the problem, especially on outside decking and patios that are wrapped with plastic or somehow enclosed when the cold weather sets in — allowing smoking areas to filter into the nonsmoking ones.
“If you can smell the smoke it is affecting you, and many of those outdoor bar areas do not have the kind of ventilation you would need to remove the smoke completely. It requires a tornado force wind to completely remove that second-hand smoke,” Drea said.
The Lung Association wants to see the rules of implementation, but it is happy with the fact that the law was passed.
“Obviously, over time, things do need to be changed,” Drea said. “We’ve always advocated for those (beer garden) rules to be written from the very beginning and be adopted by JCAR. But with or without the rules, I think it’s been extremely successful.
“We’ve said from the very beginning that Smoke Free Illinois is not about writing tickets. Right after the law passed, everybody thought there was going to be big money in these tickets. But we said all along this is not about making money. It’s all about social change, and we’ve certainly seen that social change in Illinois. Our whole goal is for our children to grow up expecting public places to be smoke free.”