Is smoking ban a law or a suggestion?

DeWayne Bartels and Marianne Gillespie
Smoking in public places, like taverns, is not hard to find a recent survey of some taverns in Peoria and Peoria Heights has found.

“Are you the police?”

The words emerged slurred from the lips of the man sitting at the end of the bar.

He asked the question of the two strangers — both TimesNewspapers editors — because the woman seated next to him was smoking a cigarette in violation of state law.

The man was seated in the small out-of-the-way Main Street bar called “The Basket Case.”

The woman seated at the bar took a long, leisurely drag on a cigarette and looked up at the two strangers.

She made no effort to hide her illicit activity.

The bartender was nonchalant about the violation.

The bartender took drink orders from the pair of journalists and finally, noticing the two looking at the woman, asked,” Do you mind if she smokes?”

When the answer was “No,” two other patrons lit up.

This was the most blatant violation of the state’s smoking ban found May 21. But, of four bars checked in Peoria that evening, none received a clean legal bill of health.

A survey

The other three bars visited were Tom Cats on Pioneer Parkway, The Silver Dollar in Peoria Heights and Hoops on Main Street.

What would appear to be violations of the law were found in all of the bars.

At Tom Cats, no one was observed smoking in the bar. There was no smell of tobacco in the air.

However, outside, two tables with chairs were set up between the two entrances to the bar.

Neither door had the required signage stating no smoking allowed within 15 feet.

Even if the signs had been posted, the two tables, at which three people were smoking, were less than 5 feet from the doors.

At The Silver Dollar, there was no signage on the door.

The bar has a patio on its north side.

There were four smokers on the patio at about 6 p.m. The door to the bar was wide open.

Two of the smokers were less than 10 feet from the door.

Upon exiting the bar, an elderly man was observed, cigarette in hand, walking into the bar.

He sat at the bar and ordered a drink. He was not asked to extinguish his cigarette.

At Hoops, the required signage was not seen.

Two tables sat in front of the bar on the sidewalk. One table is less than 5 feet from the door.

No one was observed sitting at the table closest to the door smoking.

But, at one point, a man watching the Cubs-Cardinal game   smoked a small cigar.

Peoria Heights police chief Dustin Sutton, upon being informed of the violation observed at The Silver Dollar, said he would be taking action.

“Since this has been brought to my attention, I will meet with my command officers and address it.” Sutton said.

“We do walkthroughs at the bars, but they will now be longer and more frequent. I’ll call the owner, who has always been very cooperative with us, and tell him he better address this or we will.”

A law or a suggestion?

The Smoke Free Illinois Act became law Jan. 1, 2008.

But, it was deemed virtually unenforceable in September by a Bureau County judge. Associate Judge Cornelius Hollerich ruled circuit courts do not have the jurisdiction to handle violations of the act.

Peoria attorney Dan O’Day, told the Journal Star, “This ruling, if it’s correct — and we think it is — is that there’s no way to enforce the Smoke Free Illinois Act right now. There should be no more arrests for smoking.”

Just in the last couple of months, the smoking ban law was rewritten.

It is now in the rules committee to provide clarification as to whether a health department has the enforcement to issue tickets.

“Who is the enforcing body? The legislature did realize there wasn’t enough enforcement going on. It’s been challenged a couple of times. They did make it better and easier to enforce,” Sara Sparkman, community relations manager of the Tazewell County Health Department, said.

“What we’re hearing is the health department may be more actively involved,” Sparkman said.

Health departments, Sparkman said, are hoping any new legislation includes an appeal process for the accused.

They want any new legislation to establish a process in which the accused can go to a hearing officer at the Illinois Department of Public Health’s regional office in North Peoria.

The Peoria County Health Department is charged with enforcement of the law in Peoria County.

To start the enforcement process, someone makes a complaint.

He or she can do that by visiting the Web site www.smoke-free.illinois.gov/complaints/htm and printing out a complaint form to send in to the Illinois Department of Public Health in Springfield.

Or, a resident may call the toll-free complaint line at 866-973-4646, which Sherah Bateman, health educator for the Peoria County Health Department, recommends.

The written form asks for the complainant’s name, phone number and e-mail.

Bateman said the complainant’s name is  confidential.

Once the complaint is made, it then is funneled to the appropriate county health department and is entered into a database.

Bateman said the health department has received about 200 complaints.

A business’ first complaint warrants an education letter, which includes a reminder about the law, and specifically what the complaint was.

A second complaint gives the establishment a warning letter.

The owner is then supposed to send a detailed letter of how he is going to comply with the law within 10 days.

That does not always happen, Bateman said.

Right now, this is where the process ends.

No fines have been issued for Peoria County establishments.

“But, that’s in the future, hopefully sooner rather than later,” said Bateman.

It may not be a surprise, then, that Bateman said there are a lot of repeat offenders, with some places having 10 complaints.

“This is a law that was implemented too soon,” said Bateman.

“The kinks had to be worked out and changes needed to be made.”

Though the law began in 2008, it was not until March 2009 when Gov. Pat Quinn enacted changes to the law.

One of the main things the law changed, Bateman said, was to define the fines. Previously, the law stated “not more than” various figures.

Now, a first offense is $100 for an individual smoking and a second offense of $250.

An owner will pay $250 for the first incident and $500 for the second.

A third offense, and additional ones, within one year, is $2,500 per offense.

Bateman did not have a timetable for when the fines would begin as the health department is waiting for information from the state.

“I think that will make people start obeying the law,” she said about the fines.

“Some people think it’s a joke. It’s not a joke, but it’s a very long process. Soon we’ll be able to write citations, and that should clear it up.”

Sutton said the grayness of the law and the other issues that police officers deal with make this issue difficult to address.

“We respond to this issue when we get a complaint. We do not go bar to bar looking for smoking. It’s not that high on my list of priorities,” Sutton said.

“I’ve not had one complaint. I take that back. I had one on a bar where people were outside smoking less than 15 feet from the door. It was addressed by the bar owner.”

Sutton said the incident viewed by the Times Newspapers editors may have been isolated, or it may be a trend.

“The bars may be getting lax on enforcing this since we aren’t doing a lot of walkthroughs,” Sutton said.

“If we see a violation we would write it up and send it downtown to (Peoria County State’s Attorney) Kevin Lyons. This is like the speeding issue. We could go down on Galena Road and write tickets all day. As soon as left it would be ‘Game on.’”

Jeanette Kendall contributed to this story.