By JEAN WILLIAMS: A graduate of the Public Affairs Reporting Program at Sangamon State University who received her master's degree last year. she recently joined the staff of the Illinois House of Representatives.
Proposed act to ban smoking in public places except where designated was amended in Senate to exclude home rule units. This 'guts the bill/ Gov. Walker said, and he vetoed it. The House overrode the veto, but the Senate failed to do so. Chief sponsor, Rep. Griesheimer, blames Walker-Daley feud. He will offer bill again in 1977
"MIND IF I SMOKE?" was answered in the affirmative during the spring session of the 79th General Assembly last year when legislators passed the first bill in Illinois' modern history prohibiting smoking in certain public areas. But Gov. Dan Walker's veto in September sent the bill, H.B. 342, to a murky limbo. The House overrode the veto, but the Senate failed to do so, and the bill went up, so to speak, in smoke (see Roll Calls, p. 25).
Huffing and puffing its way through the legislative labyrinth until final passage June 27, the Designated Smoking Areas Act, H.B. 342, would have defined seven public places where smoking would have been forbidden: hospital rooms, elevators, indoor theaters, libraries, art museums, concert halls, and buses. Rather than setting aside special sections for nonsmokers which has been the usual practice - this law would have allowed special areas to be established for smokers. Thus hospital directors or theater managers, for example, would have had the option of setting aside places where smokers could enjoy their tobacco but not bother nonsmokers. A violation would have been a petty offense, carrying a fine of from $10 to $100.
A new constitutional issue
For some time, what seems to have
been at the crux of this smouldering
issue was the claim of a "constitutional
right" or freedom of choice by
both smokers and nonsmokers. Traditionally, smokers have asserted their
right to puff, while nonsmokers have
increasingly demanded their right to
breathe uncontaminated air.
But the governor's veto raised a different constitutional issue: state authority versus home rule. H.B. 342 had been amended in the Senate to make it inapplicable to home rule units of government -- more than 80 cities plus Chicago and Cook County.
Three "fundamental problems" with the bill were cited by the governor in his veto message (which appears in the House journal for October 22, 1975):
First, it is unnecessary. Smoking is now prohibited in virtually all "designated areas" under municipal ordinances and building regulations.
Second, the bill is an illusion, because it authorizes the person in charge of a designated area to designate any designated area or portion thereof as an area designated for smoking. Indeed, in non-home rule units this bill could weaken local anti-smoking ordinances — which are adopted for reasons of fire safety as well as public health - by, for example, allowing a local theater owner to permit smoking.
Third, the home rule amendment guts the bill .... The home rule provisions were not intended to be the basis for denying state government the power to regulate matters of state- wide concern within home rule units. They were not intended to permit the establishment of feudal states immune from regulation by the State. Indeed, home rule amendments, such as the one tacked on to this bill, raise serious questions under the Illinois Constitution of 1970 involving the equal protection clause ... the prohibition against special legislation . . . and the powers of home rule units.
Ironically, Senator Dawn Netsch (D., Chicago), who handled the bill in the Senate, felt that the home rule amendment - by enabling Chicago and other cities to pass and enforce their own nonsmoking ordinances - would produce the extra votes needed for passage of the bill in the Senate. And the tact that the Chicago City Council raised the fine for violating Chicago's nonsmoking
February 1976/Illinois Issues/21
A doctor showed air in House at times was more polluted than rush hour traffic. Move to classify indoor smoking as form of air pollution failed when Pollution Control Board said it lacked jurisdiction
ordinance to range from $50 to $300, at the suggestion of Mayor Richard J. Daley, aided the bill's passage, according to Rep. Ronald Griesheimer (R., Waukegan) who was the chief sponsor of H.B. 342. (In Chicago, a new smokers' court now appears to be enforcing the city ordinance vigorously with strict fines.)
Chief sponsor doesn't smoke
Griesheimer himself is a nonsmoker.
He felt that the traditional social
etiquette, the "mind if I smoke?"
question, had been ignored regularly by
smokers who felt they had a "right" to
smoke where and when they pleased.
Netsch, the Senate handler of the bill, is
a smoker. She said she was moved by a
letter from a young woman lawyer who
had a strong allergic reaction to cigarette
smoke. "There seems to be
overwhelming evidence that smoking is
dangerous to health," she said. "But,
more importantly, it is an imposition on
others."
Others have tried
Legislation of this kind has regularly
been introduced since 1969 when Sen.
Robert Mitchler (R., Oswego) first tried
to pass a bill to ban smoking in public
places. Another "nonsmokers' bill of
rights," was offered by former Rep.
Bruce Douglas (D., Chicago), a dentist
who now works for the Comprehensive
State Health Planning Agency. His
nonsrnokers' bill in 1973 passed the
House but failed in the Senate. Douglas
used a special gas meter to measure
carbon monoxide levels in the
smokefilled Democratic caucus room and
House chamber two years ago. He
found the air, at times, to be a greater
health hazard than air contaminated
during urban, rush hour traffic. He
succeeded in getting the Democratic
caucus to ban smoking during party
meetings and also got the present
speaker to agree to set aside a special section
of the House for nonsmokers during the
1975-76 legislative session.
Former Rep. Victor Arrigo (D., Chicago), who served in the House for eight years and had a medical history of lung problems, pleaded for an area for nonsmokers in the lower chamber in 1973, but his request was ignored. Arrigo later died from complications involving his respiratory system.
Environment appeal failed
In October 1974, a group of 300
Illinois citizens led by Steven Klein, a
lawyer specializing in environmental
matters, petitioned the Illinois Pollution
Control Board to classify indoor
smoking in places of public accommodation
as a health hazard. Their proposal
asked that smoking be banned in stores,
restaurants, theaters, libraries, museums,
hospitals, government buildings,
public elevators, and public transportation.
Smoking areas would be designated.
Since the 1970 Environmental
Protection Act empowers the board to
regulate indoor as well as outdoor
environments, the petitioners felt they
had a convincing case for regulation of
smoking in public places. However, at a
June 1975 meeting of the Pollution
Control Board, members ruled 4 to 0
that they do not have jurisdiction to
regulate air pollution inside buildings.
No public hearings
Kelvin, who is also director of the
Environmental Lawyers Clinic which
handles cases free of charge, was
angered that the board had taken eight
months to decide it had no jurisdiction,
especially since it had not held public
hearings to allow citizens to present
evidence of public harm. Only after
evidence is compiled through public
hearings, contends Klein, can the board
decide whether it has jurisdiction to
solve a problem. But the clinic decided I
not to appeal the decision of the board
for a "number of reasons," Klein said.
"Number one, we ran out of money.
Appeal is expensive, and we couldn't
afford it. Just mailing out our 100-page
briefs to people who asked for them was
costly. Number two, education and
bringing the issue to the people and out
in the open was one of our goals, and we
accomplished this. Number three,
perhaps the board was right, and they
don't have legal jurisdiction over the
issue."
Other environmental groups, along with the Illinois Lung Association, have been strong advocates of outlawing smoking in public places. These organizations publish an impressive collection of data related to the injurious effects of smoking on a person's health. But despite impressive statistics linking smoking to stillbirths, coronary heart disease, cancer, and lowered resistance to infection, the unrefuted fact remains that hundreds of billions of cigarettes are smoked annually, and that figure is rising.
Will try again
Even though Illinois will not now join
the few but growing number of states
which give a legislative kick in the pants
to smokers, Rep. Griesheimer is
emphatic about reintroducing the bill.
Restrictive rules hamper its introduction
this year, but he intends to offer
it as one of the first bills in the 1977
session. "It was so clean we didn't have
any idea it would be vetoed," he said.
Then — referring to the feuding that has
been going on between the governor or and
the mayor of Chicago — he added:
"This was schism politics between Daley and Walker."
22/February 1976/Illinois Issues