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.3 • , f I I PN 2 4 Ijia STATE OF ILLINOIS S10 ~ IN THE CIRCUIT COURT OF THE 17TH JUDICIA COUNTY OF WINNEBAGO GE,EATER ROCKFORD FOOD SERVICE, ETC., Plaintiff, vs JOSEPH ORTHOEFER, ETC, ET AL, Defendants. MEMORANDUM OF DECISION I/ NO. 76-2447 The plaintiffs claim the Ordinance in question is invalid, in that it violates the equal protection provision of the Constitution and also violates the due process provision. I conclude the County at the request of the Health Depart_ ment has a right to pass Ordinances for the protection of public health; but such Ordinances must apply equally and uniformly to all persons similarly situated. The County in the so-called "Smoking Ordinance" has classified restaurants and cafeterias as a group (which is proper); however, I say it i unreasonable to discriminate within that group in the applica_ p tion of thelaw. If there is a smoking health hazard in restaurants over 50 seats, Certainly there is a health hazard W -13 Coll y ti i*a a I 91 4 9 0 S' ..

, f X In ^a°-..aur•an::; .,. :3s Nirh less than 50 sea.z; . .:; . x cnnciade t:e ?rd',_^unce. is uri::onst:itut•ional as i. 3pl~i~+: _, restaurants anr't :;afeterias, in that it denies equal pr,, -.on. Any _urtner rulings o.. Ordinance are somc,.l at mcc•t, nowev_r, th;8 plai_ntiffs nav~l : raised the issue that the Or("inance violates t:,e due process sec-cions of the Constitution. I Seel this should be considered. Lue process requires that an Ordinance shall not be vat;ue, indafinite, or uncertain; additonally, it must provide SufFicient standards to guide policing agencieZ and the Courts in the administration of the Ordinance - plus r,ruiding t11e tttizan ;r, obeying the Ordinance. Ordinances, whtchoa,enso Incomplete, vague, indefinite, and uncertain that men o.f ordinary intelligence must necessarily guess at tn:ir mea.nia~ and differ as to their application are unconstitutiono~) e-5 denying due process. The plaintiffs claim a portion of the Ordinance violr,tes the above concepts of due process. The portion is as fc)lows; 'properly designated smoking area means any area, set aside y specifically for those who wish to smoke•, the location and ventilation of which will keep the non-smoking area free from a!'.•tient smoke". 0 • a 0 O 4 • ' Ci -, a . o ~,

I I The word "ambient" as used is an adjective the dictionary defines as: "to go around, surround, encompass, surround on all sides"; hence the Ordinance intended to prevent the smoker's smoke from going around or encompassing the non-smoker for health protection. Most of us have had the experience , (even in a ten C seat restaurant) of having person next to us inadvertently blow tobacco smoke in our faces -- now that,s ambient smoke -- no doubt about it. However, how far away must a non-smoker be, so ambient spoke is not a health hazard? - (Health protection is the basis for the Ordinance.) This is the true problem. Common sense tells us there are several factors, such as ventilation, speed of air current, number of smokers, humidity, etc. As the Ordinance reads, the restaurant owner must consider all of the factors in setting up the designated smoking areas. Then the smoker (who is liable under the Ordinance) must gamble that the restaurant owner has properly set up the area. If a Health or Police Officer disagrees, the Judge must then decide guilt-or innocence - did the the right decisions? owner and the smoker make Irooking back to the statement regarding due process, I can only conclude there are too few guide lines, too many 1A (? d 4 .l Q 0 0 10

C C variables, no standards, indefinite and uncertain words and phrases; so I conclude this Ordinance is unconstitutional, in that it violates -the requirement of due process under our State (and National) Constitution. The Motion of the plaintiff is granted, ih that the Court finds the Ordinance violates the Section of the Constitution regardirg due process and equal protection under the law. 0 .4 6 0 0 0 d . •~'~ • e lf " ~ ~17 d • v