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Dismissal of smoking tickets denied

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By Rich Bauer, Managing Editor

An attempt to dismiss city tickets issued for allowing patrons to smoke in a Vandalia bar has failed.
At a court hearing last Friday in Fayette County Circuit Court, Judge Ericka Sanders denied a motion to dismiss three tickets issued to G&T Holdings last August for alleged smoking violations at the Redwood Inn.
In addition to making that ruling, Sanders tentatively set May 19 as the starting date for a jury trial on the tickets.
The judge ruled on the motion to dismiss after hearing arguments related to the defense contention that the Smoke-Free Illinois Act is unconstitutional. G&T Holdings also questioned the legality of the ordinance violation tickets and the court’s jurisdiction in this matter.
The city initially issued tickets to Lisa Doyle, who owns the Redwood Inn with her husband, Albert, for alleged violations of a city ordinance that was put on the books in January of last year. The city subsequently replaced those tickets with ones issued to G&T Holdings, the corporation whose name appears on the bar’s liquor license.
The tickets allege that patrons were smoking in the bar on Aug. 12, 19 and 21 of last year.
That new ordinance pertains to all issues perceived to be “a menace to the health, safety or welfare of the public, or a disturbance of the peace or comforts of residents.”
At a public meeting last July, city Police Chief Larry Eason said the city was putting this ordinance into effect after being pressured by the state to enforce Illinois’ smoking ban in public places.
At Friday’s hearing, Laura Bautista of the Illinois Attorney General’s Office spoke on the defense’s attempt to challenge the constitutionality of the Smoke Free Illinois Act.
The act, Bautista said, “does not infringe on the powers of the court,” contending that defense attorney Daniel O’Day of Peoria incorrectly interpreted the state law.
In the act, Bautista said, the state legislature did address enforcement and established different levels of fines.
The law states that a person who is cited for breaking the smoking law may pay a fine or object to the ticket, she said. If an objection is filed, an administrative hearing is held.
Any deficiencies in the state law that are claimed by the defense, Bautista said, “simply don’t exist.”
The defense also argued that the state law infringes on individuals’ personal habits, but Bautista also argued that that is not a proper interpretation of the law.
“Smoke Free Illinois does not prohibit smoking in all public places,” she said, specifically mentioning areas such as parks and alleys.
“This is not an overbroad restriction” on a person’s habit, Bautista said.
O’Day contended, however, that the state law does leave plenty of room for interpretation.
“It doesn’t say that it applies to all of these outdoor areas, but, in a deceptive way, it does,” O’Day said.
A farmer’s field, he said, could be interpreted as a place of employment and, thus, smoking would be prohibited in that field.
“The statute is so broad that it applies to government vehicles,” O’Day argued.
“If a police car comes within a couple of feet of your (vehicle) door, it (Smoke Free Illinois Act) would apply to you,” he said.
“The only places that don’t apply are the deepest ravines of Illinois where no employee would go and where there could be no government vehicles,” O’Day argued.
On the constitutionality of the law, O’Day argued that it’s not proper for the Illinois Department of Public Health to deal with violations.
The implementation of the state smoking law, he said, is “sort of backwards.
“It says that the agency can set the rules and can then go to the legislature to get the rules approved. There are all kinds of evidence that this creates issues with the delegation of authority.
“It is confrontational to the legislative branch,” O’Day said.
He contended that Gov. Pat Quinn tried to correct problems with a law that was put on the books during Rod Blagojevich’s tenure as governor, but that the legislature overrode his veto of the law.
In her ruling, Sanders said that ordinance violation tickets are “quasi-criminal” and that they simply state the date of an alleged violation, the name of the person who allegedly violated the ordinance and where the violation allegedly occurred.
“The tickets comport with the law,” Sanders said.
As to issues related to the Smoke Free Illinois Act, Sanders said, “We are not dealing with a violation of Smoke Free Illinois; we are dealing with an ordinance violation.
“The court, without question, has the authority to determine whether a person has violated a city ordinance,” Sanders said.
On the city’s argument that the ordinance in question is not less restrictive than the Smoke Free Illinois Act, Sanders said, “I cannot find that it is less restrictive.
“The city can only control what it has the power to control,” Sanders said, speaking on the city’s right to set rules for individuals holding city licenses.
On the constitutionality of the state law, Sanders said, “I can’t find that it is an unreasonable restriction on a person’s right to smoke.”
The state does regulate smoking, she said, as evidenced by laws such as the one that prohibits minors from smoking.
“I cannot find that this is an unreasonable restriction,” Sanders said.