#2 Public hearing and action on smoking ordinance (File Ord. #2010-457)
ATTORNEY’S OFFICE MEMORANDUM
CITY
June 28, 2010
TO: City Council
FROM: Tim Wellnitz, Assistant City Attorney
SUBJECT: Second reading, public hearing and action on a proposed
ordinance repealing JGO Chapter 8.75 and recreating JGO
Chapter 8.74 regulating smoking in the City of Janesville with
penalties and injunctive relief as set forth in proposed JGO
8.74.070 and 8.74.080. (File Ord. No. 2010-457)
Staff Recommendation
Staff recommends the City Council adopt Proposed Ordinance 2010-457
repealing JGO Chapters 8.74 and 8.75 and recreating JGO Chapter 8.74
regulating smoking in the City of Janesville.
City Manager’s Recommendation
The City Manager does not have a recommendation. This is purely a policy
option on whether the City Council wants to further define the enclosed place
definition as outlined in the new State Statute.
Suggested Motion
I move to adopt Proposed Ordinance No. 2010-457.
Request
Council members Brunner and Truman requested a report and ordinance
regulating smoking in the City of Janesville which provides a definition of
enclosed place that is fair and equitable.
Background
A change in state law will become effective on July 5, 2010, which will provide
additional restrictions on smoking. Under these new changes smoking will be
prohibited in several enclosed places, including day care centers, educational
facilities, inpatient health care facilities, theaters, state institutions, restaurants,
taverns, private clubs, retail establishments, common areas of multiple unit
residential properties, lodging establishments, and government buildings. In
addition, smoking will be prohibited in all other enclosed places that are places of
employment or public places. Separate smoking rooms will no longer be
allowed.
1
In addition, the new law specifically prohibits smoking in sports arenas, bus
shelters and public conveyances, even if they don’t meet the definition of
“enclosed place.”
An “enclosed place” is defined as a structure or area that has a roof and more
than two substantial walls. A “substantial wall” is a wall with an opening that may
be used to allow air in from the outside that is less than 25 percent of the wall’s
surface.
Penalties may be imposed against individuals who smoke in prohibited locations
and against the “person in charge” of the place where smoking is prohibited for
not performing their required duties under the law.
Analysis
Concerns have been raised by the League of Wisconsin Municipalities and
others about the new state law definition of enclosed place. This definition could
be interpreted to allow some to argue that a room with four walls in which 25
percent of two of the walls is covered by windows that are partially open would
not be an enclosed place. If the building is not enclosed, then smoking would be
allowed.
Under the new law municipalities have the authority to enact more stringent
regulations regulating indoor smoking. Proposed Ordinance No. 2010-457
creates an ordinance that is consistent with state law. There are two areas which
would be different than state law so as to provide additional clarification to the
“
regulations. The definition of enclosed place under the ordinance would be an
area with a roof and with walls which occupy more than 50% of the perimeter of
the area defining the space. The walls can be temporary or permanent and with
or without openings. A fence, whether solid or open, does not constitute a wall.”
This definition would allow for structures that are surrounded by more than 50%
wall space with a roof to come under the definition of enclosed space and
prohibit smoking. Smoking would be allowed in a location without a roof or with a
roof and 50% or less of the perimeter of the area is occupied by walls. The
second area would clarify that all vehicles that are places of public employment
are enclosed places.
cc: Eric Levitt, City Manager
Jacob J. Winzenz, Assistant City Manager/Dir. of Administrative Services
2
ORDINANCE NO. 2010 - 457
An ordinance repealing JGO Chapter 8.75 and recreating JGO Chapter 8.74 regulating smoking in the
City of Janesville with penalties and injunctive relief as set forth in proposed JGO 8.74.070 and
8.74.080.
THE COMMON COUNCIL OF THE CITY OF JANESVILLE DO ORDAIN AS FOLLOWS:
SECTION I.
Chapter 8.75 of the Code of General Ordinances of the City of Janesville is hereby
repealed.
SECTION II.
Chapter 8.74 of the Code of General Ordinances of the City of Janesville is hereby
recreated to read as follows:
Chapter 8.74
REGULATION OF SMOKING
Sections:
8.74.010 Intent and purpose.
8.74.020Adoption of State Laws – More Stringent Laws Govern
8.74.030 Definitions.
8.74.040 Prohibition Against Smoking
8.74.050 Responsibility of Persons In Charge
8.74.060 Exceptions
8.74.070 Penalties
8.74.080 Injunctive Relief
8.74.010 Intent and Purpose
. The Common Council of the City of Janesville hereby find
that:
A
. It is recognized and found that smoking of cigarettes and tobacco products is hazardous
to an individual’s health and may affect the health of nonsmokers when they are involuntarily in the
presence of smoking.
B
. Numerous scientific studies have found that tobacco smoke is a major contributor to
indoor air pollution.
C.
Reliable scientific studies, including studies conducted by the Surgeon General of the
United States, have shown that breathing sidestream or secondhand smoke is a significant health hazard
to nonsmokers; particularly to children, elderly people, individuals with cardiovascular disease, and
individuals with impaired respiratory function, including asthmatics and those with obstructive airway
disease.
D
. Health hazards induced by breathing sidestream or secondhand smoke include lung
cancer, respiratory infection, decreased respiratory function, decreased exercise tolerance,
bronchoconstriction and bronchospasm.
E.
Reliable scientific studies assessed by the California Environmental Protection Agency
have found that sidestream and secondhand tobacco smoke is a leading cause of premature death and
disability among non-smokers.
F.
Air pollution caused by smoking is an offensive annoyance and irritant. Smoking results
in serious and significant physical discomfort to nonsmokers.
G
. This ordinance is adopted for the purpose of protecting the public health, safety, comfort
and general welfare of the people of the City of Janesville, especially recognizing the rights of
nonsmokers who constitute a majority of the population; educating citizens affected by this ordinance;
and assisting individuals and persons in charge in maintaining compliance.
8.74.020 Adoption of State Laws – More Stringent Laws Govern
A.
Incorporated herein by reference and made a part of this chapter as if fully set forth
verbatim are Wis. Stats. § 101.123 as from time to time amended or renumbered. Any and all acts
required to be performed or prohibited by any statutes so incorporated by reference is/are required or
prohibited by this chapter. Any future amendments, revisions, or modifications of the statutes
incorporated by this chapter are also adopted and incorporated as a part of this chapter.
B.
The more stringent provision set forth in this chapter or that is set forth in the
incorporated state law(s) shall always take precedence and govern, notwithstanding any conflict,
inconsistency or ambiguity to the contrary. The intent is to at all times render this chapter in full force
and effect and in conformity with Wis. Stats. § 101.123 as from time to time amended or renumbered.
8.74.030 Definitions
. For the purposes of this chapter:
A. "Assisted living facility"
means a community-based residential facility, as
defined in Section 50.01(1g), a residential care apartment complex, as defined in Section 50.01(1d), or
an adult family home, as defined in Section 50.01(1)(b) of the Wisconsin Statutes, as from time to time
amended or renumbered.
B. "Child care center"
has the meaning given in Section 49.136(1)(ad) of the Wisconsin
Statutes, as from time to time amended or renumbered.
C."Correctional facility"
means any of the following:
1. A state prison, as defined or named in Section 302.01, except a correctional
institution under Sections 301.046(1) or 301.048(4)(b) of the Wisconsin Statutes, as from time to time
amended or renumbered, if the institution is the prisoner's place of residence and no one is employed
there to ensure the prisoner's incarceration.
2. A juvenile detention facility, as defined in Section 938.02(10r), or a juvenile
correctional facility, as defined in Section 938.02(10p), except a juvenile correctional facility authorized
under Sections 938.533(3)(b), 938.538(4)(b), or 938.539(5) of the Wisconsin Statutes, as from time to
time amended or renumbered if the facility is a private residence in which the juvenile is placed and no
one is employed there to ensure that the juvenile remains in custody.
3. A jail, as defined in Section 165.85(2)(bg), a Huber facility under Section
303.09, a work camp under Section 303.10, a reforestation camp under Section 303.07, or a lockup
facility under Section 302.30 of the Wisconsin Statutes as from time to time amended or renumbered.
D. "Educational facility"
means any building used principally for educational purposes in
which a school is located or a course of instruction or training program is offered that has been approved
or licensed by a state agency or board.
E. "Employment"
means any trade, occupation, or process of manufacture or any method
of carrying on such trade, occupation, or process of manufacture in which any person may be engaged.
F. "Enclosed place"
means an area with a roof and with walls which occupy more than
50% of the perimeter of the area defining the space. The walls can be temporary or permanent and with
or without openings. A fence, whether solid or open, does not constitute a wall.
G."Inpatient health care facility"
means a hospital, as defined in Section 50.33(2), a
county home established under Section 49.70, a county infirmary established under Section 49.72, a
nursing home, as defined in Section 50.01(3), a hospice, as defined in Section 50.90(1), a Wisconsin
veterans home under Section 45.50 of the Wisconsin Statutes as from time to time amended or
renumbered, or a treatment facility.
H. "Lodging establishment"
means any of the following:
1. A bed and breakfast establishment, as defined in Section 254.61(1) of the
Wisconsin Statutes as from time to time amended or renumbered.
2. A hotel, as defined in Section 254.61(3) of the Wisconsin Statutes as from time to
time amended or renumbered.
3. A tourist rooming house, as defined in Section 254.61(6) of the Wisconsin
Statutes as from time to time amended or renumbered.
I."Person in charge"
means the person, or his or her agent, who ultimately controls,
governs or directs the activities aboard a public conveyance or at a location where smoking is prohibited
or regulated under this chapter.
J. "Place of employment"
means any enclosed place that employees normally frequent
during the course of employment, including an office, a work area, an elevator, an employee lounge, a
restroom, a conference room, a meeting room, a classroom, a hallway, a stairway, a lobby, a common
area, a vehicle, or an employee cafeteria.
K. "Private club"
means a facility used by an organization that limits its membership and is
organized for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose.
L. "Public conveyance"
means a mass transit vehicle as defined in Section 340.01(28m), a
school bus as defined in Section 340.01(56) of the Wisconsin Statutes as from time to time amended or
renumbered, or any other device by which persons are transported, for hire, on a highway or by rail,
water, air, or guidewire within this state, but does not include such a device while providing
transportation in interstate commerce.
M. "Public place"
means any enclosed place that is open to the public, regardless of
whether a fee is charged or a place to which the public has lawful access or may be invited.
N. "Restaurant"
means an establishment as defined in Section 254.61(5) of the
Wisconsin Statutes as from time to time amended or renumbered.
O. "Retail establishment"
means any store or shop in which retail sales is the principal
business conducted.
P. "Retail tobacco store"
means a retail establishment that does not have a "Class B"
intoxicating liquor license or a Class "B" fermented malt beverages license and that generates 75 percent
or more of its gross annual income from the retail sale of tobacco products and accessories.
Q. "Smoking"
means burning or holding, or inhaling or exhaling smoke from, any of the
following items containing tobacco:
1. A lighted cigar.
2. A lighted cigarette.
3. A lighted pipe.
4. Any other lighted smoking equipment.
R. "Sports arena"
means any stadium, pavilion, gymnasium, swimming pool, skating rink,
bowling center, or other building where spectator sporting events are held.
S. "State institution"
means a mental health institute, as defined in Section
51.01(12), a center for the developmentally disabled, as defined in Section 51.01(3), or a secure mental
health facility at which persons are committed under Section 980.06 of the Wisconsin Statutes as from
time to time amended or renumbered.
T."Tavern"
means an establishment, other than a restaurant, that holds a "Class B"
intoxicating liquor license or Class "B" fermented malt beverages license.
U. "Tobacco bar"
means a tavern that generates 15 percent or more of its annual gross
income from the sale on the tavern premises, other than from a vending machine, of cigars and tobacco
for pipes.
V. "Tobacco product"
means any form of tobacco prepared in a manner suitable for
smoking but not including a cigarette.
W. "Treatment facility"
means a publicly or privately operated inpatient facility that
provides treatment of alcoholic, drug dependent, mentally ill, or developmentally disabled persons.
X. "Type 1 juvenile correctional facility"
has the meaning given in Section 938.02(19) of
the Wisconsin Statutes as from time to time amended or renumbered.
8.74.040 Prohibition Against Smoking
.
A.
Except as provided in 8.74.060, no person may smoke in any of the following enclosed
places:
1. Residence halls or dormitories owned or operated by a college or university.
2. Child care centers.
3. Educational facilities.
4. Inpatient health care facilities.
5. Theaters.
6. Correctional facilities.
7. State institutions.
8. Restaurants.
9. Taverns.
10. Private clubs.
11. Retail establishments.
12. Common areas of multiple-unit residential properties.
13. Lodging establishments.
14 State, county, city, village, or town buildings.
15. All enclosed places, other than those listed in subds. 1. to 14., that are places of
employment or that are public places. All vehicles that are places of employment are considered
enclosed places notwithstanding 8.74.030 (F).
B.
No person may smoke at any of the following outdoor locations:
1. Anywhere on the premises of a child care center when children who are receiving
child care services are present.
2. Anywhere on the grounds of a Type 1 juvenile correctional facility.
3. A location that is 25 feet or less from a residence hall or dormitory that is owned
or operated by the Board of Regents of the University of Wisconsin System.
C.
No person may smoke in any of the following:
1. A sports arena.
2. A bus shelter.
3. A public conveyance.
8.74.050Responsibility of Persons In Charge
A.
No person in charge may allow any person to smoke in violation of 8.74.040 at a location
that is under the control or direction of the person in charge.
B.
A person in charge may not provide matches, ashtrays, or other equipment for smoking
at the location where smoking is prohibited.
C.
A person in charge shall make reasonable efforts to prohibit persons from smoking at a
location where smoking is prohibited by doing all of the following:
1. Posting signs setting forth the prohibition and providing other appropriate
notification and information concerning the prohibition.
2. Refusing to serve a person, if the person is smoking in a restaurant, tavern, or
private club.
3. Asking a person who is smoking to refrain from smoking and, if the person
refuses to do so, asking the person to leave the location.
D.
If a person refuses to leave a location after being requested to do so as provided in par.
(C) 3., the person in charge shall immediately notify an appropriate law enforcement agency of the
violation.
E.
A person in charge may take measures in addition to those listed in pars. B and C to
prevent persons from being exposed to others who are smoking or to further ensure compliance with this
section.
8.74.060 Exceptions
The prohibition against smoking in 8.74.040 does not apply to the
following:
A.
A private residence.
B.
A room used by only one person in an assisted living facility as his or her residence.
C.
A room in an assisted living facility in which 2 or more persons reside if every
person who lives in that room smokes and each of those persons has made a written request to the
person in charge of the assisted living facility to be placed in a room where smoking is allowed.
D.
A retail tobacco store that is in existence on June 3, 2009, and in which only the smoking
of cigars and pipes is allowed.
E.
A tobacco bar that is in existence on June 3, 2009, and in which only the smoking of
cigars and pipes is allowed.
8.74.070 Penalties
A.
Any person who violates 8.74.040 shall be subject to a forfeiture of not less than
One Hundred Dollars ($100) nor more than Two Hundred Fifty Dollars ($250) for each violation
together with the costs of prosecution, for each offense, or, in default of payment of such penalty shall
be imprisoned for no more than sixty days for each violation in addition to such other penalties,
remedies, sanctions and relief as may be, from time to time, provided by law.
B.
Except as provided in pars. (C) and (D), any person in charge who violates
8.74.050 (B), (C), or (D) shall be subject to a forfeiture of One Hundred Dollars ($100) for each offense
together with the costs of prosecution, or, in default of payment of such penalty shall be imprisoned for
not more than sixty days for each violation in addition to such other penalties, remedies, sanctions and
relief as may be, from time to time, provided by law.
C.
For violations subject to the forfeiture under par. B, if the person in charge has not
previously received a warning notice for a violation of 8.74.050 (B), (C), or (D), the law enforcement
officer shall issue the person in charge a warning notice and may not issue a citation.
D.
No person in charge may be required under par. (B) to forfeit more than One Hundred
Dollars ($100) for each violation together with the costs of prosecution for all violations of 8.74.050 (B),
(C), or (D) occurring on a single day or in default of payment of such penalty shall be imprisoned for not
more than sixty days for each violation in addition to such other penalties, remedies, sanctions and relief
as may be, from time to time, provided by law.
8.74.080 Injunctive Relief.
State or local officials or any affected party may institute an
action in any court with jurisdiction to enjoin repeated violations of this section.
ADOPTED: Motion by:
Second by:
APPROVED:
Councilmember Aye Nay Pass Absent
Brunner
Eric J. Levitt, City Manager
McDonald
Perrotto
ATTEST:
Rashkin
Steeber
Truman
Jean Ann Wulf, City Clerk-Treasurer
Voskuil
APPROVED AS TO FORM:
Assistant City Attorney
Proposed by: Council Members Brunner and
Truman
Prepared by: Assistant City Attorney and Manager
of Building and Development Services