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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