2002-147 ORDINANCE NO. 2002 - 147
An ordinance prohibiting smoking in restaurants, with a penalty for violations upon
conviction the payment of a forfeiture of not less than $10 nor more than $1 O0 together
with court costs and other relief.
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 created to read as follows:
"SMOKING PROHIBITED IN RESTAURANTS.
Sections:
8.75.010
8.75.020
8.75.030
8.75.040
8.75.050
8.75.060
8.75.070
8.75.080
8.75.090
8.75.100
8.75.110
8.75.120
8.75.130
Intent and Purpose.
Definitions.
State Law Empowerment and Incorporation - Conflicts.
Prohibition of Smoking in Restaurants.
Prohibition of Smoking in Restaurants -- Seating Capacity 50 and
Over.
Exemption for Separately Ventilated Areas.
Hardship Exemption.
Application For and Verification of Exemption.
Prohibition of Certain Items Where Smoking is Prohibited
Signage.
Enforcement and Inspections.
Severability.
Violation -- Penalty -- Injunctive Relief.
8.75.010 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 owners, operators; and
managers in maintaining compliance.
8.75.020 Definitions.
mo
beverages.
"Alcohol beverages" means intoxicating liquors and fermented malt
B. "Enclosed Area" means all space between a floor and ceiling which is
enclosed on all sides by solid walls or windows (exclusive of door or passage ways)
which extend from floor to ceiling, including all space therein screened by partitions
which do not extend to the ceiling or are not solid, 'other landscaping' or similar
structures.
C. "Entrance" means a doorway and adjacent area which gives direct access
to a building from a contiguous street, plaza, sidewalk or parking lot.
D. "Full Service Bar" means a counterlike object with accessory seating for
customers, over which fermented malt beverages or intoxicating liquors are sold for
consumption upon the premises. A service bar without accessory seating for customers
shall not be considered a full service bar.
E. "Full Service Bar Area" means the full service bar and the area
immediately adjacent to the full service bar in which the service of food is incidental to
the consumption of alcoholic beverages.
F. "Meals" means any food or beverage. "Meals" does not include the sale
of only soft drinks, ice cream, milk, milk drinks, ices and confections.
G. "Non-Smoking" means smoking is prohibited.
H. "Non-Smoking Area" means the area in a restaurant or other place where
smoking is prohibited by this Chapter or state law.
I. "Other Definitions" means those definitions set forth in Sections 254.61,
101.123 and other pertinent provisions of the Wisconsin Statutes, as from time to time
amended or renumbered. Those definitions are hereby incorporated herein and made a
part of this Chapter by reference as if fully set forth verbatim.
J. "Person in Charge" means the person who ultimately controls, governs,
directs or is responsible for the activities aboard a public conveyance or within a place
where smoking is regulated under this section, regardless of the person's status as owner
or lessee.
K. "Private Club" means churches, religious, fraternal youths' or patriotic
organizations, service clubs or civic organizations which prepare and serve or sell meals
to members and guests only.
L. "Private Residence" means premises owned, rented or leased for
temporary or permanent habitation. A private residence is not a public place.
M. "Repeated Violations" means three (3) or more violations within a twelve
(12) month period.
N. "Restaurant" means any building, room or enclosed place where meals are
prepared or served or sold to transients or the general public, and all places used in
connection with it and includes any public or private school lunchroom for which food
service is provided by contract. This definition applies regardless of the seating capacity
of the facility. This includes "restaurants" within a mall and adjacent seating. "Meals" is
defined above and the exemptions set forth for "meals" above is included herein. Also
exempt from this definition of a "restaurant" are each of the following:
Any "restaurant" whose sale of alcohol beverages accounts for
more than 50% of the establishment's total gross receipts for the
most recent calendar year (or for such period of time or as
otherwise determined elsewhere in this Chapter.)
Private clubs and organizations when they are not open to the
general public which prepare and serve or sell meals to members
and guests only.
o
Churches, religious, fraternal, youths' or patriotic organizations,
service clubs and civic organizations which occasionally prepare,
serve or sell meals to transients or the general public.
Any public or private school lunchroom for which food service is
directly provided by the school, or by a private individual selling
foods from a movable or temporary stand at public farm sales.
Public and private school lunchrooms that contract for the
provision of meals are not exempt.
o
Any bed and breakfast establishment that serves breakfasts only to
its lodgers.
o
The serving of food or beverages through a licensed vending
machine.
o
Entire rooms or halls used for private functions, if the
arrangements for the functions are under the control of the sponsor
of the function.
Any college campus or technical college as listed in Section
254.61 (5)(0 and/or defined in Sections 36.05(6m), 36.51, 36,51 (1)
or 38.36 of the Wisconsin Statutes, as from time to time amended
or renumbered.
o
A concession stand at a locally sponsored sporting event, such as a
little league game.
O. "Room" means a space within a building completely enclosed with walls,
a floor and ceiling, except for openings for light, ventilation, ingress and egress.
P. "Separately ventilated" means that the area is ventilated to a standard
specified in the state building code, Wis. Admin. Code Sec. Comm. 64.05, as from time
to time amended or renumbered, and that there is a ventilation system for the smoking
area which is separate and distinct from the ventilation system for the nonsmoking area or
areas so that there is no mixing of air from the smoking and nonsmoking areas. The
separate ventilation must be effective so as to prevent smoke from at any time entering or
being present in the non-smoking and smokefree areas of the restaurant.
Q. "Service Bar" means an area without accessory seating for customers, at
which fermented malt beverages or intoxicating liquors are prepared for service with
meals.
R. "Smokefree" means absence from the ambient air of the smoke by-product
from the burning, inhaling, exhaling, or carrying of a lighted cigarette, cigar, pipe, weed,
plant, or other combustible substance in any manner in any form.
S. "Smoking" means to smoke, carry or use a lighted pipe, cigar, cigarette or
tobacco-related product or device in any form.
T. "Tavern" means any lawfully alcohol licensed establishment with a full
service bar in which fermented malt beverages and/or intoxicating liquors are sold for
consumption upon said premises and whose sale of alcohol beverages accounts for 50%
or more of the establishment's gross receipts for the establishment's most recently
completed fiscal year.
U. "Tobacco Product" has the meaning found in Section 139.75 of the
Wisconsin Statutes, as from time to time amended or renumbered.
V. "Transient" means any person who travels from place to place away from
his or her permanent residence for any purposes including, but not limited to, vacation,
pleasure, recreation, culture, business, meals, entertainment or employment.
W. "Use Tobacco Products" means to consume by means other than smoking
including, but not limited to, the chewing, spitting, swallowing, snorting, inhaling or
ingesting of any tobacco product.
8.75.030
State Law Empowerment and Incorporated -- Conflicts.
A. This chapter is authorized by Wisconsin law including, but not limited to,
Section 101.123(2)(c) of the Wisconsin Statutes, as from time to time amended or
renumbered.
B. Section 101.123 of the Wisconsin Statutes, as from time to time amended
or renumbered, is incorporated herein by reference and made a part of this Chapter as if
fully set forth verbatim.
C. Any action prohibited or required by state law so incorporated herein is
prohibited or required, as applicable, by this Chapter.
D. This Chapter is consistent with the intent and goals of the provisions set
forth in Section 101.123 of the Wisconsin Statutes, as from time to time amended or
renumbered. This Chapter also acts as a local supplement to the provisions of the state
statutes.
E. In the event of any conflict between any word, term, definition, provision,
section or requirement specifically set forth in this Chapter and those set forth elsewhere
in this Chapter or other ordinance, the more restrictive shall govern.
F. In the event of any conflict between any word, term, definition, provision,
section or requirement specifically set forth in this Chapter and those set forth in any state
statute, state law, or state administrative code incorporated into and made a part of this
Chapter by reference, the more restrictive provision shall take precedence and govern at
all times, to the extent provided by law. In no event, however, shall a prohibition against
smoking or a requirement mandated by state statute or state law be modified, waived or
amended by the application of this Chapter.
8.75.040 Prohibition of Smoking in Restaurants. A. It shall be
unlawful for any person to smoke or use tobacco products in any indoor or enclosed area
of any restaurant in the City.
B. In addition, any person smoking in violation of any provision of this
Chapter shall immediately cease and desist from so doing upon the request of the owner,
manager, proprietor or person in charge of the establishment.
8.75.050 Prohibition of Smoking in Restaurants -- Seating Capacity 50 and
Over. A. Notwithstanding any definition or provision in this Chapter or state law to
the contrary, smoking is also prohibited in all restaurants in the City with a seating
capacity of more than fifty (50) persons unless such facility is exempt under state law
Section 101.123(3)(d) of the Wisconsin Statutes, as from time to time amended or
renumbered, as a restaurant holding a Class B intoxicating liquor and/or fermented malt
beverage alcohol license and the sale of alcohol (intoxicating liquor or fermented malt
beverages) accounts for more than 50% of the restaurant's annual receipts.
B. No exception, exemption or hardship provision specifically set forth in
this Chapter, other than separately ventilated areas, shall apply to any such restaurant or
to any other place in which smoking is prohibited by state law.
8.75.060 Exemption for Separately Ventilated Areas. Notwithstanding any
other provision of this Chapter to the contrary, the following area(s) shall not be subject
to the smoking restrictions set forth in this Chapter:
A. A smoking room that is completely separated from the rest of the
restaurant by solid wall(s) or window(s) of rigid construction that run(s) from floor to
ceiling with a separate entrance(s) that has/have a separate solid door(s) that fully and
effectively close(s) and that is/are kept closed at all times and which room is separately
ventilated from each and every other area of the restaurant where smoking is prohibited.
8.75.070 Hardship Exemption. A. Notwithstanding the equal to
or greater than 50% gross sales exemption set forth in the definition provisions of this
Chapter, an establishment with a seating capacity of 50 persons or less shall also be
exempt from the requirements of this Chapter in the event that the business provides to
the City Clerk-Treasurer written verification from an independent and duly licensed
certified public accountant confirming any one of the following:
Showing that the business has experienced a decrease of fifteen
percent (15%) or more in gross sales during the first three (3)
months after the effective date of this ordinance compared to the
same three (3) months of the previous year.
Showing that any decrease in gross sales for the business during
the first six (6) months after the effective date of this ordinance is
the direct and primary result of complying with the provisions of
this Chapter. Submitted written proof must establish a comparison
of sales receipts during said six (6) months of compliance as
compared with sales receipts for the same six (6) months of the
year prior to compliance together with other evidence
substantiating that such decrease in gross sales is the direct and
primary result of no-smoking in the restaurant.
B. In either case, it shall be the responsibility of the owner, manager or
principal of the business to demonstrate that the restaurant has complied with the
requirements of this Chapter and that any business losses were the result of compliance
with this ordinance and not as a result of other factors unrelated to this ordinance.
C. This subsection concerning hardship exemptions shall expire and be of no
further force or effect two years after the effective date of this ordinance.
8.75.080 Application For and Verification of Exemption. A. Every
business that claims to be or seeks to be exempt from the requirements of this Chapter
under the provisions concerning gross alcohol sales equaling or exceeding 50% of total
gross sales of the establishment shall:
Provide to the City Clerk-Treasurer a written certified audit from
an independent and duly licensed certified public accountant
confirming that the gross sales of alcohol beverages during the first
three (3) months after the effective date of this ordinance exceeded
50% of the total gross sales of the restaurant during that same
period. This verification is due not later than thirty (30) days after
the end of said three month period. No smoking shall be permitted
in any establishment failing to timely file said documentation.
Thereafter annually provide to the City Clerk-Treasurer an
additional written certified audit from an independent and duly
licensed certified public accountant confirming that the gross sales
of alcohol beverages during the preceding full calendar year after
the effective date of this ordinance exceeded 50% of the total gross
sales of the restaurant during that same time period. This
verification is due annually and not later than thirty (30) days after
the end of said applicable subsequent calendar year(s). No
smoking shall be permitted in any establishment failing to timely
file said documentation.
o
Every new or remodeled establishment that requires a new
occupancy permit for any reason must comply with the verification
and documentation provisions of this subsection for the first three
months immediately following the time the final certificate of
occupancy is issued by the City, and then annually thereafter as set
forth above.
Any business that is not exempt but whose business circumstances
change such that the business becomes exempt shall provide the
same documentation in the manner set forth above in this
subsection for any consecutive three month period.
o
Upon receipt of the verification documentation required by this
subsection, the City Clerk-Treasurer shall make a determination
whether the documentation satisfies the requirements of this
Chapter. Upon such a determination, the Clerk-Treasurer shall
issue an exemption to said establishment for the following year. If
the City Clerk-Treasurer determines the documentation fails to
satisfy the requirements of this Chapter, then no exemption shall
be issued and smoking shall be prohibited in said establishment
until sufficient verification is provided.
B. Every business that claims to be or seeks to be exempt from the
requirements of this Chapter under the hardship provisions of this Chapter shall timely:
Provide a written application for exemption to the City Clerk-
Treasurer together with all documentation and information
required by this Chapter.
The City Clerk-Treasurer, upon receipt of due proof, shall
forthwith provide copies of the application and documentation to
the Plan Commission for consideration and determination. The
Plan Commission shall schedule the application on their next
customary meeting agenda. The applicant shall be provided prior
written notice of the date, time and place of the meeting. The Plan
Commission shall permit the applicant to appear and address the
Commission. A person aggrieved by a decision of the Plan
Commission may appeal said decision to the Common Council. A
majority vote of those voting at a Plan Commission or Common
Council shall govern. Abstentions are not votes.
o
Any granted hardship provision shall only be effective for a period
of twelve (12) months after the grant of the hardship exemption.
In no event shall a hardship exemption be granted after or remain
in effect longer than two years after the effective date of this
ordinance.
C. The City reserves unto itself the right and privilege to examine and audit
any books, documents, papers, financial information, and related records at any time and
without prior notice of any establishment that seeks or has obtained exemption under any
provision of this Chapter. Upon verbal or written demand by the City, the owner,
manager, proprietor or person in charge shall forthwith provide and supplement such
books, documents, papers, financial information and related records to the City and its
officials, officers, employees, representatives and designees ("related others") for
inspection and verification. Failure or refusal to comply with this provision, or
obstruction or delay in providing such verification documentation to the City or its
related others for inspection and audit, shall result in the immediate denial or termination,
as applicable, of the exemption and without prior notice.
8.75.090 Prohibition of Certain Items Where Smoking is Prohibited.
Ashtrays, cigarette vending machines, tobacco, tobacco related products and other
smoking paraphernalia shall not be located by a business or sold in areas where smoking
is prohibited.
8.75.100 Signage. A. Signs prohibiting smoking, prohibiting
smoking except in designated areas, indicating that the premises is totally smoke free,
and whether the establishment has a separately ventilated smoke free area, as applicable,
shall be posted conspicuously at every building entrance and in prominent locations
throughout the premises by the proprietor, owner, manager or other person in charge of
each restaurant regulated by this Chapter. The signs shall be posted in such manner that
the public has reasonable notice of the prohibition and must be present at any time the
establishment is open for business.
B. The signs shall be not smaller than eleven by eight and one-half inches
(11" x 8 ½") indicating whether they permit smoking, whether they are totally smoke
free, or whether they have a separately ventilated smoker free area. Each sign shall
contain the phone number for the County health department and the non-emergency
phone number for the City police department.
C. It shall be unlawful for any business to fail to comply with the signage
requirements of this Chapter.
D. It shall be unlawful for any person to remove, deface or destroy any sign
required by this Chapter without the consent of the owner or person in charge of the
property.
E. It is unlawful for any person to smoke in any place where a no-smoking
sign is posted.
8.75.110 Enforcement and Inspections. A. The City Code
Inspectors, County Health Department, affiliated agencies, and City sworn peace officers
shall have the power whenever they may deem it necessary to enter upon the premises of
the establishments regulated by this Chapter to inspect and ascertain compliance with the
requirements of this ordinance.
B. Each business in violation shall be provided not less than one week within
which to achieve compliance before a citation is issued or a court action is commenced.
C. The proprietor, owner, manager or other person in charge of premises
regulated by this Chapter, upon either observing or being advised of a violation, shall
make immediate reasonable effort(s) to achieve full and timely compliance and to prevent
smoking in prohibited areas by:
Approaching smokers who fail to voluntarily comply with this
Chapter and requesting that such persons immediately extinguish
their cigarette or tobacco product and refrain from smoking, or
Utilizing any other means which may be deemed appropriate by
said proprietor, including but not limited to refusal of service to
anyone smoking in a prohibited area.
8.75.120 Severability. The provisions of this Chapter are severable. If any
provision or section is held to be invalid or unconstitutional or if the application of any
provision or section to any person or circumstance is held to be invalid or
unconstitutional, such holding shall not affect the other provisions, sections or
applications of this Chapter which can be given effect without the invalid or
unconstitutional provision, section or applications. It is hereby declared to be the intent
of the Common Council that this Chapter would have been adopted had any invalid or
unconstitutional provision or applications not been included herein.
8.75.130 Violation -- Penalty -- Injunctive Relief.
A. Any owner, proprietor, manager or other person in charge of an
establishment who violates any provision of this Chapter upon conviction shall be
required to forfeit and pay not less than ten dollars ($10) nor more than fifty ($50) plus
the costs of prosecution. Each day of violation shall constitute a separate violation.
B. Any customer, employee or other person in an establishment regulated by
this Chapter who violates for the first time any provision of this Chapter shall upon
conviction be required to forfeit and pay not less that ten dollars ($10) nor more than fifty
dollars ($50) plus the costs of prosecution. For second and subsequent violations
committed within twelve (12) months of a first violation, upon conviction such person
shall be required to forfeit not less than fifty dollars ($50) nor more than one hundred
dollars ($100) plus the costs of prosecution.
C. Injunctive Relief. Consistent with Section 101.123(9) of the
Wisconsin Statutes, as from time to time amended or renumbered, notwithstanding
Section 165.60 of the Wisconsin Statutes, the City, state and local officials including, but
not limited to, sworn peace officers, building/code inspectors, county health officials, and
any affected party may institute an action in any court with jurisdiction to enjoin repeated
violations of this section. The City may also seek, and a court may grant, other related
injunctive relief to abate or prevent repeated violations and to seek compliance."
[SECTION II. This ordinance shall take effect at 12:01 o'clock a.m. on
Friday, February 14, 2003. (This section added by amendment of Council Member
O'Leary at the time he moved adoption/passage of the ordinance.)]
ADOPTED: August 26, 2002
APPROVED:
Steven E. Sheiffer, City Manatger
ATTEST:
Jp~h Ann~'vgulf, CitfClerk-~reasurer
APPROVED AS TO FOP: ~% ~
City Att~~
Proposed by: Council Members O'Leaw & Steeber
Prepared by: City Attorney
MOTION BY: 0 ' Leary
SECOND BY: Steeber
COUNCILMEMBER AYE NAY PASS ABSENT
STEEBER X
MURPHY X
DAMRON ;. X
WILLIAMS X
De GARMO
I
O'LEARY X
Word/Wald/Ord Draft]No Stnoking Ordinance 72302 Draft