2015-617ORDINANCE NO. 2015-617
An Ordinance amending the regulations related to smoking, including the use of electronic delivery
devices, in the City of Janesville with penalties as set forth in J.G.O. 8.74.070.
THE COMMON COUNCIL OF THE CITY OF JANESVILLE DO ORDAIN AS FOLLOWS:
SECTION I. Chapter 8.74 of the Code of General Ordinances of the City of Janesville is hereby
amended as follows:
Chapter 8.74
REGULATION OF SMOKING
Sections:
8.74.010
Intent and purpose
8.74.020
Adoption 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 The Centers for Disease Control and Prevention has stated that hookah smoking has
many of the same health risks as tobacco smoking and can be a health risk by producing secondhand
smoke.
H The American Lung Association has stated that marijuana smoke contains man of f the
same toxins irritants and carcinogens as tobacco smoke and secondhand marijuana smoke contains many
of the same toxins as directly inhaled marijuana smoke.
I. While electronic delivery devices are currently unregulated by the United States Food
and Drug Administration, the use by and sale to children of electronic delivery devices containing
nicotine ( "nicotine products" ) is prohibited by Wisconsin law and Janesville ordinance.
J. Several other states, counties, and municipalities have already taken action to prohibit the
use of electronic delivery devices in certain locations.
K. The American Cancer Society Cancer Action Network advocates for smoke -free laws,
including electronic delivery devices and supposed nicotine -free electronic delivery devices, in all
workplaces to protect workers and the public form the harmful effects of secondhand exposure and states
that reliminary studies indicate that nonusers can be exposed to the same potentially harmful chemicals
as users, including nicotine, ultrafine particles and volatile organic compounds, which could be especially
problematic for children, pregnant women, and people with heart disease.
L. A 2009 study by the United States Food and Drug Administration found cancer - causing
substances in several of the electronic delivery devices tested and found nicotine in some electronic
delivery devices that claimed to contain no nicotine.
M. This Chapter incorporates by reference as if fully set forth herein verbatim the factual
findings in JGO 9.56.0 10 relating to synthetic cannabinoid a/k/a synthetic marijuana.
N. This Chapter incorporates by reference as if fully set forth herein verbatim the factual
findings of the states, counties, and municipalities that have investigated, documented, and /or made
independent findings and conclusions concerning the health effects and concerns arising from and/or
pertaining to smoking as defined in this Chapter.
O-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 and those 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. § 10 1. 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. § 10 1. 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(1 g), a residential care apartment complex, as defined in Section 50.01(1 d), or an
adult family home, as defined in Section 50.01(1Xb) 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 302.0 1, 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. "Electronic delivery device" means any product containing or delivering nicotine or any
other substance intended for human consumption that may be used by person to simulate smoking
through inhalation of vapor or aerosol from the product. "Electronic delivery device" shall include any
such device, whether manufactured, distributed, marketed, or sold as an e- cigarette, e- cigar, ee -pipe, e-
hookah, or vape pen, or under any other product name or descriptor.
F L. "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.
G. -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.
H 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.
I 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.
J 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.
K-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.
L 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.
M 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.
N 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.
0 N. "Restaurant" means an establishment as defined in Section 254.61(5) of the
Wisconsin Statutes as from time to time amended or renumbered.
P. "Retail electronic delivery device store" means any retail store for which one of the
primary purposes is the sale on the premises of electronic delivery devices and accessories.
QA. "Retail establishment" means any store or shop in which retail sales is the principal
business conducted.
R 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.
S "Smoking" means inhaling, exhaling, burning or r cMing, any lighted or heated cigar,
cigarette, pipe, or any other lighted or heated tobacco or plant product intended for inhalation, including
hookahs and marijuana, whether natural or synthetic, in any manner or in any form. "Smoking shall
include the use of an electronic delivery device which created an aerosol or vapor, in any manner or in
any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of
smoking in this Chapter. i,..... ing h e ldi g oF inhaling " emhaling s f ",Y, °fth f ll
2. A lighted eigaFette.
4. Any other- lighted smoking equipment.
T R. "Sports arena" means any stadium, pavilion, gymnasium, swimming pool, skating rink,
bowling center, or other building where spectator sporting events are held.
U 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.
V T. "Tavern" means an establishment, other than a restaurant, that holds a "Class B"
intoxicating liquor license or Class "B" fermented malt beverages license.
W-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.
X -V. "Tobacco product" means any form of tobacco prepared in a manner suitable for
smoking but not including a cigarette.
Y W. "Treatment facility" means a publicly or privately operated inpatient facility that
provides treatment of alcoholic, drug dependent, mentally ill, or developmentally disabled persons.
Z 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 or residence halls or dormitories of the University of Wisconsin — Rock Coun1y regardless of
who operates or owns them
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.
4. Anywhere on City premises. This includes, but is not limited to, any
premises containing a building parking ramp or lot, or park or trail controlled by the City. A
leeation that is 25 feet 6F less 40111 aH efltffiflee fe a Gity building eF an5-wher-e en the pr-epefty of the
If a restaurant, tavern, private club, or retail
establishment is located within this area the person in charge of such establishment may designate an
outside area that is a reasonable distance from any entrance to the establishment where customers,
employees, or person associated with the establishment may smoke.
5. At a Gity splash pad, whieh ineludes the wet and dFy deek, er- at the City skate
C. No person may smoke in any of the following:
1. A sports arena.
2. A bus shelter.
3. A public conveyance.
D No person may use electronic delivery devices within 25 feet of an entrance to a school
building. A "school building" is a building under the control of a school board.
8.74.050 Responsibility 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:
I . 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.
F. A retail electronic delivery device store may provide and permit the use of electronic
delivery devices and accessories for theVurpose of sampling
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.
SECTION II. Chapter 8.76 of the Code of General Ordinances of the City of Janesville is hereby
repealed.
ADOPTED: August 24, 2015
APPROVED:
Mark Frjhag, City Manager
ATT .
David T. Godek, City Clerk- Treasurer
AP /PR PROVED AS TO FORM:
Lam— Li e--�
Tim Wellnitz, Assistant City Attorney
Motion by: Gruber
Second by: Liebert
Councilmember
Aye
Nay
Pass
Absent
Bobzien
X
Deu ree
X
Farrell
X
Gruber
X
Liebert
X
Marklein
X
Tidwell
X
Proposed by: Council Members Gruber & Liebert
Prepared by: Assistant City Attorney