A proposed modification to the Smoke Free Illinois Act is coming up for vote on September 24th.  The proposed changes, which can be found in detail here on the Illinois Department of Public Health's website, contain some key changes that would impact many Illinois businesses.  Among them, the proposal essentially redefines what constitutes a workplace, where people may smoke in regards to these new "work areas", and makes businesses liable for which way the smell of smoke actually drifts. 

Let's untangle some of the proposed changes:

Place of Employment & Self-Service Areas 

A place of employment is now defined as "any area under the control of a public or private employer that employees are required to enter, leave, or pass through during the course of employment." In short, this seeks to bring outdoor areas such as beer gardens, decks, and patios under the Smoke Free Act, as employees still must pass by or through them in the course of their employee and would therefore be exposed to second-hand smoke.

The only exceptions of note to most of our clientele is the exclusion of "self-service outdoor areas".  This is defined in the proposal as, "an area or location where no employees are present and customers may serve themselves food or beverages or both and clean up the area after consuming their food and beverages."  If an employee is not required to service the area - running drinks or food, bussing and cleaning tables - or enter, leave or pass through the area in the course of their employment, then it meets the definition of a self-service area. But obviously, many guests prefer these areas for the ability to smoke while still being serviced.

The 15 Foot Rule

This remains in effect, with a twist. The definition remains: "No person shall smoke in a public place or in any place of employment or within 15 feet of any entrance to a public place or place of employment."  This would now include serviced outdoor areas such as patios, beer gardens, decks or rooftops and concession areas.

The amendment here, potentially dangerous, depending on how strictly it may be enforced, involves the drifting of smoke. The amendment contains language that reads, "Smoke shall not be allowed to drift through entrances, windows or ventilation systems, or by other means enter into indoor and outdoor areas where smoking is prohibited." It specifically spells out that the owner and/or employer shall "reasonably" assure that "smoking" - now including drifting smoke - shall remain prohibited in specified areas.  It continues later on, "No person may smoke in any vehicle owned, leased or operated by the State or a political subdivision of the State."

So if someone waiting in the lobby or just inside the door of your business catches a whiff of drifting smoke, regardless of how far away the smokers are, and wants to be vindictive enough, they could call the Public Health Department's toll-free number and report you. If a police officer smells your smoke drifting into his car - owned, leased or operated by the State or a political subdivision and that officer's "work area" - and is spiteful enough, he can cite you for a violation of the Smoke Free Illinois Act.

Handling of Complaints and Enforcement

Complaints can still be made via the Health Department's toll-free number or through their website, as well as with a local public health department or local law enforcement. Complaints can also still be filed anonymously against the businesses accused of the violations.

Although the local branch of the Health Department may respond, it seems likely that the majority of these complaints will be referred to, responded to and investigated by local law enforcement. The Act states that they should consider, but not be limited to, the following:

• the presence of a used ash tray or containers with ashes or cigarette butts in an area where smoking is prohibited
• the presence of ashes, cigarette butts or filters, or cigar stubs in an area where smoking is prohibited
• the lack of signage as required by the Act
• the presence of smoking
• the presence of smoke that drifts into prohibited areas or within 15 feet of entrances or open windows
• the presence of employees in self-service outdoor areas

Of note in that list of criteria is that they don't have to observe someone smoking in a prohibited area to issue a citation, they basically just have observe residual evidence that someone may have smoked in or near the area. Cigarette butts driven by wind or rain runoff near the entrance to your business may be sufficient to earn you a citation. There seems to be the potential for a rather large "gray area" here, depending on how literally law enforcement chooses to interpret the language of the Act.

The proposed rules go on to indicate that, once the owner/employer is advised of a complaint it is their responsibility to clear out any smoke and smokers from prohibited areas and, if they're unable to, they have the obligation to self-report themselves to local law enforcement. There is still a process for an administrative hearing should a business be cited, but of course you're then tied up in hearing dates and paperwork instead of fully focused on operating a profitable business.

What to Do?

The PDF document linked to above instructs interested persons to present their comments to:

Susan Meister

Division of Legal Services

Illinois Department of Public Health

535 W. Jefferson Street, 5th floor

Springfield, IL 62761

Telephone: 217-782-2043 | Email: dph.rules@illinois.gov

We will also direct you to the names and contact info for the members of JCAR (Joint Committee on Administrative Rules), the 12-person committee that will be deciding whether or not to approve the proposed rule changes.  Again, the vote is coming up soon - September 24th. If you feel that these proposed changes would unfairly target or burden your business, contact any and all of the members listed above.  As with the original Smoke Free Illinois Act, there still seems to be the potential for the Act to be enforced in an uneven and inconsistent manner.

Have thoughts on the proposed changes to the Smoke Free Illinois Act?  Please share your thoughts on our Facebook page.