Smoking ban not being enforced

Bruce Rushton

Smoke 'em if you got 'em - and go ahead and light up with copies of the smoking bans passed by city, county and state authorities, which aren't being enforced in Sangamon County.

Ten months after a statewide smoking ban was supposed to go into effect and more than two years after Sangamon County and Springfield barred smoking in public places, the Sangamon County Department of Public Health isn't writing citations.

Jim Stone, health department director, said his agency hasn't been getting complaints under the county or city smoking bans, and complaints filed by citizens and forwarded by the state health department aren't being followed up on because the state law isn't enforceable.

Stone allowed that his agency, which has jurisdiction under city and county laws, could enforce local bans. He declined to say what his department would do if someone called the health department to report someone smoking in a bar in the middle of the day, saying that's a hypothetical situation that hasn't happened.

"I don't want to deal with hypotheticals," Stone said.

The number of complaints has dwindled this year to the point where a week or more can pass without the health department being alerted to any alleged violations, Stone said. So far this year, the department has received 74 complaints, with 32 of those coming in January, when the statewide law took effect, Stone said.

But that doesn't mean people aren't smoking.

"There are speed limits out there, and I'm sure people are speeding," Stone said when asked whether he thinks people are smoking in bars. "I'm confident there are a lot of laws we have on the books that are not being followed."

That's for sure.

A spot check of 10 bars this past weekend by The State Journal-Register showed plenty of smoking, and not just in the boy's room. Six bars played by the rules, but people were smoking in the other four -- including the bartenders in some cases.

But then there are establishments like Freebirds Tavern at Amos Avenue and Jefferson Street, which once allowed smoking, but no longer.

Bartender Nova Mizeur, who has worked at Freebirds for five years, said business dropped immediately after the city of Springfield passed its smoking ban, but picked up after a month or so. She said she isn't concerned about competition from bars that allow smoking.

"The crowd that comes here is a totally different crowd," she said.

No one was smoking at Chantilly Lace on Friday night, but there were fewer than a dozen patrons at 1 a.m., when other bars closed and the opportunity for late-night revelry narrowed. Owner Kevin Davlin, who also owns the Barrel Head in Jerome, where smoking is allowed in a beer garden, said he doesn't agree with the smoking ban, but he will obey the law, even if it isn't enforced.

"It may be news to you (that bars allow smoking), but it sure as hell ain't news to me in the industry," Davlin said. "I'm not going to violate the law. The law is the law. I will follow the law. But it is a bad law."

The county health department once sent inspectors out to check bars - Stone himself recalls writing a citation in August 2007 - but that approach has ended.

"First of all, it's a cost issue," said Stone, who wouldn't rule out a sting in the future. "You're sending out someone after hours."

Under local prohibitions, it's up to the health department, not police, to enforce smoking bans. Under state law, police officers, who are available at all hours, have the power to write citations, but there is no legal avenue of appeal, critics of the law say. That's why some judges have ruled the state ban unenforceable.

In Bureau County, a judge last month threw out a case against Duane Alexander, who had challenged his citation for smoking in a tavern. The judge said legislators didn't make it clear whether challenges to citations should be heard by circuit courts or administrative law judges.

"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," Dan O'Day, Alexander's attorney, told the Peoria Journal Star.

A bill aimed at clarifying due process so that violators of the ban can be punished is before the state Senate. Stone called on legislators to take action so that the statewide ban can be enforced instead of a patchwork of laws with one set of rules for unincorporated Sangamon County, another for the city of Springfield and none at all for municipalities such as Jerome and Southern View.

"We want the state law to be clarified so we can enforce things evenly," Stone said.

Bruce Rushton can be reached at (217) 788-1542