Open Letter to the Naperville, IL City Council

Joe Fay
Naperville, IL 60540

December 21, 2007

Naperville City Council
400 S. Eagle Street
Naperville, IL 60540

Naperville City Council & Mayor Pradel :

I am very troubled by the recently released pamphlet that was produced by the City of Naperville titled "FAQs about the Smoke Free Illinois Act". This guideline is extremely weak and provides no understanding of how Bars & Restaurants can comply with the new Smoke Free Act.

More troubling is that these guidelines are not consistent with a recent ruling by U. S. District Judge Sam Sparks in a lawsuit filed by twenty-five bars and restaurants owners against the City of Austin, Texas regarding the City of Austin's smoking ban enacted in 2005. I believe that the Naperville city attorney needs to review this federal precedent and modify the compliance rules as soon as possible.

On October 4, 2006 Judge Sparks ruled that the City of Austin's Smoking Ban was "Constitutionally Vague" both facially and as-applied, with regard to the "necessary steps" standard. The City of Austin used a five step standard to access proprietor/manager/employee compliance.

1. Post No Smoking signs

2. Remove ash trays

3. Ask the patron to stop smoking

4. If smoking continues, follow your standard business practices for enforcing house rules

5. Refuse service to the smoker

The Judge made four key findings that indicated that the law was "Constitutionally Vague". He found:

1. That the "necessary steps" were subject to change over time indicating that the term "Necessary Steps" is vague and is not controlled by any discernible explicit standards.

2. That the five steps under the guidelines are not exclusive and that following all of the guidelines does not create a safe harbor from liability for business owners and operators.

3. That the representative health officials had no standard policy about what bar owners should do, such as calling the police, because the health officials did not know each business's policies and would need to know them to determine whether or not they (the business owner) had taken the necessary steps

4. That charging a patron with criminal trespass because he/she refused to stop smoking inside an establishment is an onerous burden on a business owner or operator and goes beyond the court's interpretation of "reasonable step"; it could lead to loss of business, lost time for both owners and employees and even the possibility of civil liability. The Fifth Circuit employed a two part void-for-vagueness test when evaluating criminal laws under the due process clause. United States v. Escalante, 239 F.3d678, 680 (5th Cir. 2001) (citing City of Chicago v Morales 527 U.S. 41,56 (1999). "Vagueness may invalidate a criminal law for either of two reasons: (1) it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; or (2) "it may authorize and even encourage arbitrary and discriminatory enforcement".

Reviewing "FAQs about the Smoke Free Illinois Act" it's clear that the City of Naperville has all but ignored the Austin precedent. The guidelines provided in "FAQs about the Smoke Free Illinois Act" are almost identical to the "Constitutionally Vague" steps used in Austin:

1. Post "No smoking" signs or international "No Smoking" symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red line across it must be posted.

2. Each public place and place of employment where smoking is prohibited must have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited.

3. All ash trays must be removed from areas where smoking is prohibited.

4. You and your staff must remind your customers of the law and should politely explain that they must step outside to smoke.

5. If smoking continues, use common sense. If necessary, use your normal protocol for removing a disruptive customer on your premises

What is truly amazing is that the Naperville steps appear to be more "Constitutionally Vague" than Austin's "Necessary Steps". "Use common sense", clearly this phraseology is extremely vague, what is the legal standard for common sense?

Additionally, the Naperville guidelines fall into the same trap regarding house rules. "Use your normal protocol", clearly this too is vague and arbitrary. Does the Naperville Police and Health Department know the current protocols for all the bars and restaurants in Naperville?

Ultimately Judge Spark's ruling had a major impact on the Austin, Texas's smoking ban. The Judge ENJOINED the City of Austin from holding the owner or operator of a public place liable for failure to take "necessary steps" beyond two steps: failure to post "No Smoking" signs and failure to remove ashtrays and other smoking accessories.

At the next City Council meeting in the public forum session the City Council or City Attorney will need to explain why the City of Naperville has ignored the Austin Federal Court ruling The Council or City Attorney should be prepared discuss the timing of the distribution of revised rules for both the Naperville Smoke Free Ordinance and the Smoke Free Illinois Act

The City Council or City Attorney should be prepared to discuss the strategy for the City's defense against litigation arising from Naperville bars and restaurants claims that the Naperville Ordinance and the Smoke Free Illinois act is "Constitutionally Vague".

During the public forum, I would also like to hear the Naperville police chief's plan of enforcement. Will the Police department cite individual smokers as well as bars and restaurants for noncompliance? Does the Naperville health department have the capability to cite businesses and individuals smokers for noncompliance?

Joe Fay

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