State of Illinois Smoking Ban Effective Jan. 1, 2008

Highlights of the Act
By George F. Mahoney III and Justin M. Fredin, Attorneys for the Village of Frankfort

The Smoke Free Illinois Act, commonly known as the statewide smoking ban, will become effective on January 1, 2008. The basic provisions of the Act are as follows:
What does the Act prohibit? The Act prohibits smoking in public places and places of employment. The Act also prohibits smoking within fifteen feet of any entrance, exit, window that opens or ventilation intake serving an enclosed area where smoking is prohibited.

What qualifies as smoking? “Smoking” is the burning, carrying, exhaling, inhaling or smoking any kind of lighted cigar, cigarette, herb, hookah, pipe, weed or any other lighted smoking equipment.

What qualifies as a public place? A “public place” is any portion of any building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned by a private or public entity, and regardless of whether a fee is charged for admission. Examples of public places include bars and taverns, concert halls, educational facilities, elevators, enclosed and partially enclosed sports arenas, enclosed shopping centers, gaming facilities, government owned facilities and vehicles, healthcare clinics and facilities, hotels and motels, indoor theaters, lobbies, nursing homes, private clubs, public restrooms and restaurants.

What qualifies as a place of employment? A “place of employment” is any area under the control of a private or public employer that employees are required to enter, leave or pass through during the course of employment. Examples of places of employment include break rooms, cafeterias, classrooms, conference rooms, entrances, exits, offices, restrooms, work areas and other common areas.

Which places are exempt from the Act? The Act lists four specific exemptions.
(1) A private residence or dwelling place is exempt, except when it is used as an adult day care, child care or healthcare facility or as any other home-based business open to the public.
(2) A retail tobacco store—defined as a retail establishment that derives more than 80% of its gross revenue from the sale of (a) loose herbs, plants or tobacco, (b) cigarettes, cigars, pipes or other smoking devices for burning tobacco or (c) related smoking accessories, in which the sale of other products is merely incidental—is exempt. A retail tobacco store that begins operation after January 1, 2008 will only be exempt if (a) it is located in a freestanding structure occupied solely by the business and (b) the smoke will not infiltrate into an enclosed area where smoking is prohibited.
(3) A private or semi-private room in a long-term care facility or nursing home is exempt if (a) all occupants of the room are smokers and have requested in writing to be placed in or
to remain in a room where smoking is permitted and (b) the smoke will not infiltrate into other areas of the facility or home.
(4) A hotel or motel may designate up to 25% of its rooms for smoking guests if (a) all smoking rooms on the same floor are contiguous and (b) the smoke will not infiltrate into non-smoking rooms or other areas where smoking is prohibited. The status of rooms as smoking or non-smoking may not be changed, except to permanently add additional non-smoking rooms.

What must public places and places of employment do to comply with the Act? “No Smoking” signs must be clearly and conspicuously posted in each public place and place of employment where smoking is prohibited and outside every entrance. Ashtrays must be removed from any area where smoking is prohibited.

How will the Act be enforced? Individuals who smoke in prohibited areas may be fined between $100 and $250 for each violation. Entities which own, operate or otherwise control public places or places of employment may be fined not less than $250 for a first violation, not less than $500 for a second violation and not less than $2,500 for each additional violation within one year of the first violation. An injunction against future violations may also be obtained by the Illinois Department of Health, a local health department, a local law enforcement agency or any individual personally affected by repeated prior violations.

May private or public entities impose additional requirements? Yes. Owners, operators, employers, managers, occupants or other persons in control of public places or places of employment may prohibit smoking in non-enclosed areas, including outdoor areas, by conspicuously posting “No Smoking” signs. Municipalities and counties may (a) regulate smoking in public places more strictly than the Act and (b) regulate smoking in enclosed indoor areas that are used by the public or serve as workplaces but do not qualify as public places under the Act. Finally, the Illinois Department of Public Health may adopt rules necessary for the administration of the Act.