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* The Joint Committee on Administrative Rules overwhelmingly rejected the administration’s proposed rules to implement the statewide smoking ban yesterday…
At Wednesday’s meeting, members of the panel said the proposed rules neglected an important aspect of the smoking ban: the due-process rights of anyone who is accused of violating the ban.
Lang said the rules don’t spell out a process for appealing a violation of the smoking ban. An individual who stands accused of a violation has just two choices, paying the fine or fighting the matter in circuit court, he added.
“Lack of due process threatens the public interest and welfare,” Lang said.
He and other lawmakers urged Department of Public Health officials to spend another 30 days drafting the proposed rules, but agency officials said they didn’t want to do that.
So, the department refused to add due process requirements into the rules, passed on taking another crack at it, then watched as JCAR voted 9-1 against implementing its draft.
* More…
Under the law, an individual who violates the ban can be fined between $100 and $250. A business that fails to comply can be fined at least $250 for the first offense, with higher fines for additional offenses.
“The rulemaking contains no process by which an accused violator can argue that no violation occurred, appeal a finding of a violation or appeal the amount of the imposed fine. An alleged violator’s only options are to pay the fine or challenge enforcement action through the circuit court,” said Rep. Lou Lang, D-Skokie.
But Marilyn Thomas, chief legal counsel for Public Health, said the fact that violators can seek redress in the state court system does provide due process.
* And more…
But lawmakers had other problems, particularly with the 15-foot, smoke-free zone.
State Sen. Brad Burzynski, a Sycamore Republican also serving on the committee, offered one example of uncertainty on violations of the 15-foot rule — smokers waiting at a bus stop outside a restaurant or business’ door.
“Is that the shop owner’s responsibility or liability?” Burzynski said.
Hultgren added he’s concerned businesses may be investing in outdoor smoking shelters, patios or beer gardens to make smoking patrons happy only to have those investments jeopardized by the uncertainty over the 15-foot zone.
* DPH can now either rewrite the rules and resubmit them to JCAR or, as it has done before, simply ignore JCAR and order the rules implemented without approval. No word yet on what will happen.
*** UPDATE 1 *** From a reader…
Overlooked in all the publicity about the smoking rules was the fact that JCAR issued ANOTHER filing prohibition yesterday against yet another HFS attempt to expand healthcare services (preventive care services for adults 21 and older) with NO explanation of how they were going to pay for it. The HFS rules coordinator indicated that the agency would take the prohibition “under advisement,” meaning, of course, they will probably ignore this one too.
posted by Rich Miller
Thursday, Jan 10, 08 @ 9:34 am
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As I’ve said before, JCAR can no longer be referred to as an “obscure legislative commissision” as reporters typically refer to it. By publicly admitting they have no plans to recognize JCARs statutory authority, DPH and the Governor by extension seemingly appears to be brazenly violating state law (the Illinois Administrative Procedures Act) yet again. At what point does violating state law equate to misfeasance of office, a plausible reason to initiate impeachment?
Comment by DC Thursday, Jan 10, 08 @ 9:47 am
If the Rule is found to be invalid becuase it do not comply with JCAR or the APA, then anyone who attacks it can get attorney fees. More tax payor dollars down the toilet.
What is the actual available circuit court challenge? There is nothing in the Statute that allows one to seek review by a circuit court. In fact the Statute identifies that the dept is to create rules for the enforcement of the act.
So the circuit court enforcement challeneg looks like it would be a suit to decalre the act unconstitutional since it fails to provide for due process. So the Chief counsel for the Dept. thinks the ability to have the Staute delcared unconsitutional for lack of due process provides sufficient due process? Where do they hire these people.
The Dept does not need to bring an enforcement action in circuit court to asses the fines, they are given this authority carte blanche. So the Dept can on its own without the court delcare somone in violation and fine them. Most laws, like tickets for speeding or littering, require the State to initiate an enforcement proceeding in court to determine guilt and asses fines. They do not just asses guilt and fine you without any proceeding. So this leaves me wondering what is the enforcement action that can be brought by the party convicted without hearing to challeneg the govt act? Not to mention making the alleged violator pay hefty court filing costs to challanege there conviction without hearing. Which leads back to the challeneg they would bring should target the uncosnstiotionality of the lack of hearing in the first place.
These people are nuts.
Comment by Ghost Thursday, Jan 10, 08 @ 10:04 am
From word I have heard form people in the industry, there is a widespread ignoring of the band in several bars and adult establishements.
Comment by Anon Thursday, Jan 10, 08 @ 10:05 am
To paraphrase a former President, “the Supreme Court has made their ruling, now let them enforce it”.
Comment by DC Thursday, Jan 10, 08 @ 10:12 am
Simpleton question, please. As it stands now, who and how decides if the person gets a $125 or a $250 fine for violation?
Comment by Princeville Thursday, Jan 10, 08 @ 10:18 am
What’s up with Lang supporting the constitutional rights of smokers? What about the constitutional rights on the majority of the population; those who don’t smoke? Lets call it what it really is; the constitutional rights of casino owners. Remember, follow the money.
Comment by If It Walks Like a Duck... Thursday, Jan 10, 08 @ 10:21 am
princeville, the Dept of public health decides the amount of the fine when it enforces the ban.
This is judge dredd law. One person (the dept)gets to investigate, determine guilt, and sentence.
Comment by Ghost Thursday, Jan 10, 08 @ 10:34 am
No due process? Whatever happened to the administrative review law?
Comment by Squideshi Thursday, Jan 10, 08 @ 10:57 am
Responding to “If it Walks Like a Duck”:
My comments had nothing to do with the “Constitutional right of smokers” per se. Legislators and the Governor have a sworn responsibility to uphold the Constitution. Most of the members of JCAR, including myself, voted FOR the smoking ban for public health reasons. That having been said, rules and statutes that are not Constitutional, whether they relate to smokers, citizens who access state agencies, or those involved in serious crimes, can never be approved in good conscience. The members of JCAR asked the Governor’s office to take 30 days to work with us and to “fix” the rules so that they would accomplish the goal of the new anti-smkoking law and still be Constitutional, but they flatly refused to do that. Draw your own conclusions.
Comment by Lou Lang Thursday, Jan 10, 08 @ 11:01 am
Squid, the administartive review law only applies where the Staute your delaing with invokes it. The smoking ban does not invoke admin review. Plus where you have admin review, that is court review of the underlying administartive proceeding, i.e. opportunity for hearing, put on witness, appeal of recomendations or deicsion to the head of the agency. Then when all that process is completed, you can ask a court to review the underlying proceeidng like an appeal. The admin review law does not create the proceudre, just allows you to appeal the adminsitartive hearing decision.
Then there is a writ of certiori, which can apply for review of quasi judicial decisions by State agencies. i.e. where the admin review law is not specifically invoked. Problem is, its for review of a quasi judcial proceeding. There is no Quasi judicial proceeding if there is no hearing, no witnesses, no opportunity to be heard. When govt action occurs without a hearing or opportunity to be heard, the challeneg is based upon denial of due process.
Comment by Ghost Thursday, Jan 10, 08 @ 11:08 am
Thank you Representative Lang for your response. This highly charged issue makes people crazy trying to figure out what’s REALLY going on. Regarding your suggestion that I draw my own conclusions; I have my Crayolas out, as we speak.
Comment by If It Walks Like a Duck... Thursday, Jan 10, 08 @ 11:11 am
We need a Rosa Parks for smokers….
Comment by JohnnyUSA Thursday, Jan 10, 08 @ 12:03 pm
Looks like we’re already starting to relearn why total bans like Prohibition and the Drug War failed in a nation built on freedom and liberty.
Why not just require businesses to clearly post whether or not smoking is allowed, then require all smoking establishments to provide all employees (even part-timers and temps) with good health insurance.
Wouldn’t the high cost of health insurance make such a measure more effective at cutting back smoking in businesses as creating new criminals requiring costly policing action?
Wouldn’t such a plan also help expand the number of people with health insurance?
Comment by Anonymous Thursday, Jan 10, 08 @ 1:03 pm
Anonymous, we have a number of bans in IL that are working. Poligamy; common sense in gorvernment….
Comment by Ghost Thursday, Jan 10, 08 @ 1:50 pm
Due process? Where do you people think you live? This isn’t the good ol’ USA created by the Founding Fathers and defended to the death by literally millions of American patriots. This is the Socialist States of America, where the government — urged on by small groups of loud-mouthed zealots — decides what’s best for you. The taking of smokers’ civil liberties is just the tip of the iceberg. Below the surface lie the lost rights of property owners; the right to freedom of association; the right to pursue happiness; the right to freedom of expression; and many more that are lost in the murkiness of this travesty.
The non-smokers say “Shut up. You can still smoke outside and in your own home or car.” Hah! You already can’t smoke in the seating areas at outdoor ballparks, in any public park in Chicago, on the beaches or within 15 feet of any door or open window of buildings open to the public. Next will be the law banning smoking in your car if there are children inside. Then will come the laws banning smoking in apartment buildings and condos. Inevitably it’ll be against the law to smoke within 15 feet of any non-smoker, whether inside or not.
The Nazi nannies got the seat belt law passed, saying it would never be the sole basis of a traffic stop. Now we have rolling roadblocks designed solely to catch non-wearers.
So forget your “due process” worries. There’s no such thing.
Comment by The Mad Hatter Thursday, Jan 10, 08 @ 2:13 pm
Imagine tobacco were discovered yesterday, and people started smoking it in public places. Do you have any doubt that we would all think they were NUTS to think that they should do so? But now, some people think that it’s a “RIGHT”! Crazy.
Comment by Anonymous Thursday, Jan 10, 08 @ 2:30 pm
Gee, Mad Hatter, next thing you know this awful socialist police state will be telling us we can’t be drunk or naked in public either. How on earth will the republic survive if we aren’t free to do these things?
Comment by Anonymous Thursday, Jan 10, 08 @ 2:47 pm
Its worse then that, we cant even be drunk and naked in our own cars
dang smokers get all the breaks.
Comment by Ghost Thursday, Jan 10, 08 @ 2:54 pm
This ban goes waaaaaay beyond the rights of nonsmokers to eat, gamble or drink in a smoke-free environment. I work in a three-story office building. For years there has been a small, smokers’ room on the third floor with ventilation to the outside. There are 6-7 people who use this room during the day. Non-smoking employees have no reason to go into the room. There are nicer breakrooms elsewhere. Whose rights are being preserved by doing away with this smoking break room?
Comment by puzzler Thursday, Jan 10, 08 @ 3:00 pm
If It Walks Like a Duck:
There isn’t any good reason nonsmokers and smokers can’t both have constitutional rights. Get a smart person to explain it to you.
Comment by Joe Camel Thursday, Jan 10, 08 @ 4:26 pm
I avoid smart people, they think they know everything. How about the preamble: We, the People of the State of Illinois - grateful to
Almighty God for the civil, political and religious liberty
which He has permitted us to enjoy and seeking His blessing
upon our endeavors - in order to provide for the health,
safety and welfare of the people; maintain a representative
and orderly government; eliminate poverty and inequality;
assure legal, social and economic justice; provide
opportunity for the fullest development of the individual;
insure domestic tranquility; provide for the common defense;
and secure the blessings of freedom and liberty to ourselves
and our posterity - do ordain and establish this Constitution
for the State of Illinois.
(Source: Illinois Constitution.)
Comment by If It Walks Like a Duck Thursday, Jan 10, 08 @ 8:28 pm
If it Walks Like a Duck: you should consider sending that Preamble to the Governor. Perhaps he could get some continuing education credits for actually reading it - and the articles that follow.
Comment by DC Thursday, Jan 10, 08 @ 9:05 pm
I suspect DPH is taking their cue from the Illinois State Police. They saw them bypassing legislators and JCAR and deciding on their own to deny FOID cards to children under 10 with no legal authority to do so.
Just goes to show how disrespect for the rule of law is contagious.
Comment by dwlawson Friday, Jan 11, 08 @ 12:50 am
“Lawson,” that’s a bit of a stretch. Yes, ISP did launch a policy not in rule (age limit for FOID cards), BUT has since moved to remedy that by proposing to put the policy in rule. That has happened many, many times before — agencies implement a new policy, someone from the agency or JCAR points out that it needs to be in rule, they respond by filing rules to correct the situation.
What is unprecedented is agencies such as HFS and DPH simply ignoring JCAR completely and insisting they don’t need rules at all. ISP is not doing that so please get off their case.
Comment by Bookworm Friday, Jan 11, 08 @ 8:42 am