Local: City police still officially enforcing an unenforceable smoking ban (UPDATED)
I visited a certain drinking establishment near my home the other night and was surprised when I noticed that come folks were openly lighting up cigarettes.
A recent court cause ended with a judge’s ruling that the state law banning smoking inside buildings doesn’t empower circuit courts to hear cases stemming from the tickets being issued. I dashed off an email to Peoria Police Chief Steve Settingsgaard to see if his officers are doing anything differently. His reply:
Bill, our instructions have not changed. In a case where people are smoking in a licensed premise, we will bring enforcement action upon the business, not the individuals smoking. I have checked with Legal and they advise the recent Court ruling does not impact our approach.
Hmmm … the Journal Star article says that the law is essentially unenforceable. If the tickets that would be issued by police cannot be enforced in court, how are they any kind of deterrent to bars that want that let patrons smoke?
I just now emailed Randy Ray, city attorney for the Peoria, to ask how this could be the case. Just last night, the council voted to rescind its prohibition on handbilling because of a court decision that such laws were unconstitutional. Wouldn’t the city also face some liability if there are police officers out there giving tickets that cannot be enforced?
If I had a liquor license, I would have to ask my patrons to PLEASE take it outside. At least until there’s some clarity on this.
UPDATE: City Attorney Randy Ray replied to my letter. It looks like my commenters are correct, a circuit court decision isn’t binding throughout the state (although I suspect any attorney defending someone so charged would make a similar argument as the one that succeeded in Bureau County, and cite that judge’s decision). But something Ray said troubles me:
Seriously, it remains illegal to smoke in a licensed establishment. Our liquor ordinance provides that a licensee may not allow illegal activities on the premises. Liquor license actions are not commenced with a ticket. Liquor licensees who allow smoking in their establishments face potential action against their licenses.
I take this to mean that even if they can’t hand out tickets to patrons, the police CAN take steps that might culminate in some bar loosing it’s liquor license.
Yet there are bars — I am assured more than the one I visited the other day — where indoor smoking is openly taking place. Folks, it doesn’t bother me a bit. But all it takes it one morally superior soul to drop a dime. Either some folks don’t mind losing their liquor license, or someone out there knows something I don’t about whether there’s an unofficial policy to not really give a rat’s behind about this.
October 15th, 2008 at 2:03 pm
there is still a penalty: even if one goes to court, fights the ticket and wins, well, that is X amount of time and hassle.
October 15th, 2008 at 2:09 pm
Are you serious? The Journal Star says the law is unenforceable. That a a couple of bucks will get you a cup of coffee at Starbucks. The decision of the Associate Judge in Bureau County has no effect outside Bureau County (maybe not even there). Until the Applellate Court rules on whether the Bureau County court was correct, there is no law on the issue, and the cops in Peoria City are well within their authority to enforce the statute. Take civics 101, if they still teach it anywhere.
October 15th, 2008 at 2:15 pm
Since this hasn’t garnered substantial compliance in bars, they ought to limit the smoking ban to restaurants, where bars are defined as establishments with over 50% of their income comes from alcohol, and restaurants as establishments with over 50% of their income coming from food or non-alcoholic beverages.
If people aren’t complying on a wide scale, it ought to be repealed, as it was with prohibition.
October 15th, 2008 at 2:41 pm
If it’s ruled unconstitutional in Bureau, it creates a precedent because it’s a ruling against a state law, and therefore can be cited in any case in the state.
October 15th, 2008 at 2:43 pm
Morton, Sorry, but your wrong. The decision of a circuit court has no binding authority.
October 15th, 2008 at 4:58 pm
dd is right,that decision is not even binding in its own circuit on another judge. Only Appellate Court decisions have any binding authority on other circuit courts. I learned this at Manual in my shop courses, which they no longer teach.
October 15th, 2008 at 5:17 pm
Didn’t the court just rule that the courts can’t enforce the ban? Couldn’t, if a city council would pass an oridnance, it still be enforced as an ordinance violation? The way I understood the ruling, the courts can’t rule on it because JCAR hasn’t gotten their thumbs out of their asses and wrote the rules on enforcement.
If I remember the Bureau County case correctly, the Spring Valley police department basically made up their own offense. There is no box to check on the PD’s citation for smoking ban violation, so theymade up their own ticket. In essence, they created their own rules for enforcement when the PD is only supposed to enforce the law. If they aren’t given the tools to enforce, then they can’t arbitrarily (sp?) make up their own tools.
I don’t live in Illinois anymore and I miss it everytime I go out to dinner. The state I moved to is trying to pass a smoking ban and I’m hoping they do it soon and do it right. Don’t exempt bars. Keep it how it is. It’s tough on the older people, but in the long run, it’s the right move.
October 16th, 2008 at 6:28 am
Like you, Billy, I don’t care one way or the other. I’m curious about Randy Ray’s comments though. I can’t imagine a smoking ticket as grounds to lose your liquor license. That sounds like a lawsuit waiting to happen.
What about businesses that don’t have liquor licenses…say a regular old factory? If they are caught with people smoking, what will happen? Will the city threaten to change their zoning?
I think Ray’s statement needs some reconsideration. Does anybody know how many, if any, tickets have been issued in Peoria thus far?
October 16th, 2008 at 9:50 am
The really weird story is in Macomb, Bushnell and McDonough County where the State’s Atty has allowed $50 contributions to the DARE program (proven to be ineffective) substitute for prosecution for smoking violations. How is any of this legal? If I rob a bank and contribute $100 to a medical charity I won’t be prosecuted? Amazing!