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_ M E M 0 DATE: 5/26/76 RE: Winnebago County Smoking Ordinance I. INTRODUCTION On May 13, 1976 the Winnebago County Board adopted an Ordinance amending the Winnebago County Health Ordinances which purports to prohibit smoking in, among other places, restaurants or cafeterias, except in properly designated smoking areas. The Ordinance provides that proprietors of restaurants with seating capacities of 50 persons or less, exclusive of counter space, may choose to permit or prohibit smoking by properly posting the premises. The Ordinance is to take effect August 1, 1976. II. CONSTITUTIONALITY OF ORDINANCE ~A. Substantive due process - Fourteenth Amendment, US Constitution, and Article II, Section 2 of the Illinois Constitution. Where the evil sought to be remedied by statute affects public health, safety, morals or welfare, a means reasonably directed toward the achievement of those er.ds will be held to be a proper exercise of the police power. People V. Fries, 42 I1. 2d 446, 448. In the United States Supreme Court there is a very strong modern presunmptton in favor oE the validity of -State p olice power legislation, so long as it is none discriminatory on its face, where it is related to health, morals and safety. The Court thus w. . ~ routinely sustains State laws directly promoting health, morals and safety, tj including compulsory vaccination, sterilization of the feeble minded (with ~ adequate procedural safeguards), and regulation of the production, processing, and sale of foods and drugs.

1. C ~ In People V. Fries, Supra, the Illinois Supreme Court struck down legislation requiring motorcyclists and passengers to wear protective head gear as violative of Aiticte I; Sectirn 2 of ttn Custitution of the State of Illinois, and of the Fourteenth Amendment to the Constitution of the United States, . I on the basis the Statute was merely intended to secure the safety of the wearer of the head gear in the event of an accident, and was not directed _toward the safety'of the public, stating: "The legislature may not, of course, under the guise of protecting the public interest, interfere with private rights." (citing People V. City of Chicaao, 413 11. 93, 91).' The Ordinance with which we are concerned is designed "to protect the health and rights of smokers and nonsmokers within the County", noting '.'the hazards of tobacco smoking to both the smoker and the nonsmoker ....". The Ordinance is thus an attempt to promote public health, and is a proper exercise of the police power if it can be said that the Ordinance is a means reasonably directed toward the achievement of the goal of protecting public health. B. EQUAL PROTECTION OF THE LAWS - SECTION I OF ARTICLE II, . CONSTITUTION OF ILLINOIS, FOURTEENTH AMENDMENT, CONSTITUTION OF THE UNITED STATES. The proposed Ordinance is mandatory only for restaurants with seating capacity of more than 50 persons, exclusive of counter space. It could be argued therefore that the ordinance is-invalid for the reason that it denies proprietors of restaurants with seating capacity of greater than ~ 50 persons equal protection of the laws, in contravention of Article I, Section 2 of the Illinois Constitution and the Fourteenth Amendment to the United States Constitution.

~ / - Not all discrimination is per se unlawful under the equal protection clause of the Illinois and United-States Constitutions. It is only arbitrary or invidious discrimination which is prohibited by the equal protection clause. Three factors which need to be consulted are the basis of the distinction drawn, the nature of the interest impaired by it, and the strength of the State interests advanced by it. The basic rule is that a discrimination or distinction does not violate the equal protection clause as long as it is rationally related to'a legitimate state concern. Thus it is often said that even though there may be some inequality in legislative classification, it does not deny equal protection of the laws if it has some reasonable basis or if any state offacts reasonably may be conceived to justify it. See Davis V. Commonwealth Edison Co., 1975, 61 I11. 2d 494, Illinois Coal Operators Association V. Pollution Control Board, 1974, 59 I11. 2d 305, Youhas V. Ice, 1974, 56 Ill. 2d 497. The Winnebago County Ordiriance draws a distinction based upon the seating capacity of the restaurant. A rational basis or state of facts which could justify such a distinction is that it would be impossible for a'small restaurant owner to comply with the Ordinance, without prohibiting smoking in all parts of his establishment. It is my opinion that the distinction has a rational basis which would sustain the Ordinance against Equal Protection argltment. C. VOID FOR VAGUENESS-ARTICLE I SECTION II ILLINOIS CONSTITUTION, AMENDMENT FOtTRTEEN, UNITED STATES CONSTITUTION In my opinion, the proposed Ordinance is violative of the Constitutional requirement of definiteness since it imposes a duty of compliance on restaurant . C proprietors in incomplete, vague and indefinite terms, and since it fails to CJ establish a clear and intelligible standard of duty. See generally, City of ~ Decatur V. Kushmer, 42 Ill. 2d 334. ~ ~ N

The smoking Ordinance imposes a duty on the proprietor to post-signs identifying the areas where smoking is permitted or prohibited . (Section 9-12), and also imposes on the proprietor the duty to "comply with this Ordinance". However, the Ordinance fails to indicate with sufficient specificity how the proprietor is to determine where those- signs shall be'placed. Section 9-11 prohibits smoking in restaurants or cafeterias "except in properly designated smoking areas". Section 9-10 (2) defines a "properly designated smddngarea"as''any area set aside specifically for those who wish to smoke, the location and ventilation of which will keep the nonsmoking area free from ambient smoke." Nowhere in the Ordinance is the term "free from ambient smoke" defined. More significantly,'there is no specific requirement in the Ordinance that a proprietor provide "a smoking area". Arguably, a proprietor could comply with the Ordifiance by setting aside the entrance way to his restaurant as the "smoking area". The failure of this Ordinance to give a person of ordinary intelligence fair notice of the conduct which is forbidden by the Ordinance renders it constitutionally void for vagueness. t