Smoke-free Illinois – not free

Who should be penalized, when smokers congregate outside a business? The smokers? Or the owner of the business?

I was surprised to learn from the McHenry County Department of Health that it’s the business owner who gets pounded.

But is it legal to take enforcement action only against a businessowner, if his customers or others stand outside his business, on the public sidewalk, but within 15’ of the entrance to his business?

I say, “No.” And not only No, but “NO!!!”

If a smoker is on a public sidewalk, then enforcement should be against the smoker, not just against the businessowner. Read the following from www.idph.state.il.us/smokefree/index.htm

“How will the act be enforced?
"The owner, manager or operator of an area open to the public covered by the act must make a reasonable effort to prevent smoking. The Illinois Department of Public Health, state-certified local public health departments and local law enforcement agencies will enforce the law.”

What does that mean? If a smoker is inside his business (i.e., in a “area open to the public” in his business), sure, then pound the businessowner, if he allows smoking. If he owns a bar or a bowling alley or a restaurant or a shopping center or a store, etc., and does not prohibit smoking, then he is responsible.

A public sidewalk, the public right-of-way, is not under the control of a businessowner. Anyone can use it, at any time. And if the health department or a local cop writes him a ticket, it ought to take his lawyer about three seconds in court to have the ticket thrown out.

But look what our Illinois legislators, in their infinite wisdom, passed as part of the Smokefree Illinois Act. They defined a “place of employment as any area under the control of a public or private employer … including a minimum distance … of 15 feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited."

So, even though the sidewalk is public, the businessowner is tasked with keeping it smoke-free and is subject to huge fines if his customers, or a passerby, smokes in that 15-foot radius from his door.

Fair?

“What are the penalties?
"A person who smokes in an area where smoking is prohibited can fined between $100 and $250. A person who owns, operates or otherwise controls a public place or place of employment who violates the act can be fined not less than $250 for the first violation, not less than $500 for the second violation within one year after the first violation and not less than $2,500 for each additional violation within one year after the first violation.”

Right! Read these penalties again. So, shouldn’t a business owner take serious note of smokers in front of his business? Well, only if he is concerned about fines of $250, $500 and $2,500!!! Plus those pesky court costs and lawyers’ fees.