Smoke Free Monona

Things have been a little too quiet around Monona, don't you think? Perhaps the proposal for a Smoke Free Monona will snap us out of winter doldrums. Alderman McKeever asked if I would support bringing this proposal to the council, I said I would, he pulled together a first draft, we revised it a few times, and yesterday presented it for a first reading on March 3, 2008.

I have posted the entire resolution and proposed ordinance below, but basically the ordinance would prohibit smoking in most public places, including bars and restaurants. The ordinance as proposed would go into effect 120 days after passage. The ordinance is based in part on the Fitchburg ordinance (without any grandfather provisions) and also on a Model Ordinance (Model Ordinance Eliminating Smoking in All Workplaces and Public ...).

Why propose this ordinance? The evidence is overwhelming that exposure to second hand smoke has extremely harmful health consequences. Check out the US Surgeon General's 2006 report 6 Major Conclusions of the Surgeon General Report. The whole report: The Health Consequences of Involuntary Exposure to Tobacco Smoke ...

Why propose it now? The time, quite simply has come. Wisconsin is far behind the national curve on this issue. Minnesota and Illinois have recently adopted smoke free laws. When I ran for reelection in 2005, I said I wanted to give Governor Doyle and the state legislature a chance to enact a state wide law. The legislature has failed to act and with Russ Decker in charge of the Senate Democrat, it appears very unlikely that anything will happen in the foreseeable future.


The resolution:

City of Monona
Resolution # ____________
Smoking prohibited in Certain Places


WHEREAS, secondhand smoke is a Class A carcinogen containing over 4,000 chemicals, 200 of which are known poisons and 69 of which are known to kill more than 1200 Wisconsinites every year from heart disease and lung cancer; and

WHEREAS, Employees should not be forced to risk their health through exposure to dangerous and deadly toxins in their workplace; and

WHEREAS, The Surgeon General’s 2006 report The Health Consequences of Involuntary Exposure to Tobacco Smoke concludes exposure to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer; and

WHEREAS, The most effective way to protect employees and public health from the hazards of secondhand smoke is to completely eliminate secondhand smoke by creating smoke-free environments; and

WHEREAS, The Surgeon General 2006 report The Health Consequences of Involuntary Exposure to Tobacco Smoke declares there is no safe level of exposure to tobacco smoke; and

WHEREAS, The Surgeon General’s 2006 report also concluded that establishing smoke-free workplace policies does not have an adverse economic impact and is the only way to ensure that secondhand smoke exposure does not occur in the workplace; and

WHEREAS, Local governments are directly responsible for protecting the public health and safety of Wisconsin’s citizens; and

NOW, THEREFORE, BE IT RESOLVED that the Monona Common Council does hereby adopt the attached ordinance #8-1-12, entitled “Smoking prohibited in Certain Places.

Passed and adopted by the Common Council of the City of Monona, Dane County, Wisconsin, this _____ day of _________, 2008.



________________________________________
Robb Kahl, Mayor
Attest:


_______________________________
Joan Andrusz City Clerk
VOTE: Ayes:___ Noes:___

Introduced by: Alderman Peter McKeever and Alderman Doug Wood
Drafted by: Peter McKeever

The proposed ordinance:

MONONA ORDINANCES
8-1-12 SMOKING PROHIBITED IN CERTAIN AREAS

(1) Purpose. The Common Council of the City of Monona finds and declares that the purposes of this ordinance are:
(a) To protect the public health and welfare by prohibiting smoking in public places and places of employment; and
(b) This ordinance shall be liberally construed so as to further its purpose. It shall not be interpreted or construed to permit smoking where smoking is otherwise restricted by applicable laws.

(2) Definitions.
(a) Bar means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the serving of food is only incidental to the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets.
(b) Bed and breakfast establishment has the meaning set forth in Sec. 254.61(1), Wis. Stats.
(c) Chewing tobacco means snuff, snuff flour, cavendish; plug and twist tobacco; fine cut and other chewing tobaccos; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such manner as to be suitable for chewing.
(d) Childcare facility means any state licensed or county certified child care facility including, but not limited to licensed family day care or licensed group day care centers, licensed day camps, certified school-age programs and Head Start programs.
(e) Cigarette means any roll of tobacco wrapped in paper or any substance other than chewing tobacco or tobacco products.
(f) City buildings means all City-owned buildings and those portions of buildings leased and operated by the City.
(g) Common areas of buildings means all areas not part of a tenant's leased premises, including but not limited to lobbies, community rooms, hallways, laundry rooms, stairwells, elevators, enclosed parking facilities, pool areas, and restrooms contiguous thereto.
(h) Common areas of malls means those areas within a mall customarily accessible to patrons.
(i) 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.
(j) Employee means any person who is employed by any employer for direct or indirect monetary wages or profit, including those full time, part-time, temporary or contracted for from a third party; employee also means any person who serves as a volunteer for a business or nonprofit entity.
(k) Employer means any person, partnership, limited liability company, corporation, or other entity, including a public or nonprofit entity who employs the services of one (1) or more individual persons.
(l) Enclosed area means all space between a floor and ceiling that is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) that extend from floor to ceiling, including all space therein screened by partitions that do not extend to the ceiling, are not solid, or are landscaping or similar structures.
(m) Entrance means a doorway and adjacent area that gives direct access to a building from a contiguous street, plaza, sidewalk or parking lot.
(n) Food means a raw, cooked, or processed edible substance or ingredient used or intended for use or for sale in whole or in part for human consumption. It does not include ice, beverages or chewing gum.
(o) Health care facility has the meaning set forth in Sec. 155.01(6), Wis. Stats.
(p) Hotel and motel have the meaning set forth in Sec. 254.61(3), Wis. Stats.
(q) Mall means an enclosed, indoor area containing common areas and discrete businesses primarily devoted to the retail sale of goods and services.
(r) Medical services has the meaning set forth in Sec. 647.01(6), Wis. Stats.
(s) Nonsmoking means smoking is prohibited.
(t) Person in charge means the person who ultimately controls, governs or directs the activities aboard a public conveyance or within or at a place where smoking is regulated under this section, regardless of the person's status as owner or lessee.
(u) Place of employment means an enclosed area controlled by the employer that employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, employee cafeterias and hallways. A private residence is not a 'place of employment' within the meaning of this ordinance unless used as a childcare facility, an adult daycare facility or a healthcare facility.
(v) Private residence means premises owned, rented or leased for temporary or permanent habitation.
(w) Public place means any enclosed area to which the public is invited or in which the public is permitted. A private residence is not a public place.
(x) Restaurant means an establishment defined in Sec. 254.61(5), Wis. Stats. This includes restaurants within a mall and adjacent seating. Restaurant shall also include a bar or bar area within a restaurant.
(y) Room means a space within a building completely enclosed with walls, partitions, floor and ceiling, except for openings for light, ventilation, ingress and egress.
(z) Smokefree means absence from the ambient air of the smoke byproduct 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.
(aa) Smoking means to smoke or carry a lighted pipe, cigar, cigarette or tobacco-related products in any form.
(bb) Sports arena means sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller and indoor ice rinks, and bowling centers.
(cc) Tobacco product means cigars; cheroots; stogies; periques; granulated, plug cut, crimp cut, ready-rubbed and other smoking tobacco; shorts; refuse scraps, clippings, cuttings and sweepings of tobacco and other kinds and forms of tobacco prepared in such a manner, as to be suitable for smoking in a pipe or otherwise smoking; but tobacco product does not include cigarettes or chewing tobacco.

(3) Prohibition of Smoking in Public Places. Except as otherwise provided, it shall be unlawful for any person to smoke cigarettes or tobacco products in public places, including but not limited to the following:
(a) Elevators and enclosed stairwells of City parking ramps
(b) Public forms of transportation, including but not limited to motor buses, taxicabs, or other public passenger vehicles
(c) Theatres, libraries, museums, auditoriums, and convention halls that are used by or open to the public
(d) Any childcare facilityIncorporated herein by reference are the following Wisconsin statutory and administrative code sections and any amendments or renumbering thereof: Sec. 101.123(1)(ad) and (2)(bm), Wis. Stats;
Secs. HFS 45.02(4), 45.06(8)(g), 46.03(13), 46.06(2)(h), and 46.08(2)(c), Wis. Admin. Code.
(e) Retail stores
(f) Health care facilities
(g) Waiting rooms, hallways, rooms of health care laboratories
(h) Waiting rooms, hallways, rooms in offices of any physician, dentist, psychologist, chiropractor, optometrist or optician, or other medical services provider
(i) Meeting and conference rooms in which people gather for educational, business, professional, union, governmental, recreational, political or social purposes
(j) Polling places
(k) Service lobbies, waiting areas, and the common areas open to the public of financial institutions, business and professional offices, and multi-unit commercial facilities
(l) Self-service laundry facilities
(m) Enclosed, indoor areas of restaurants
(n) Common areas of malls
(o) Public bus and transfer point shelters
(p) Common areas of buildings that contain three (3) or more rental units. Written Rental Agreements shall include reference to this subdivision. Subparagraph (9)(b) shall not apply to this subdivision.
(q) City buildings
(r) City-owned or leased motor vehicles
(s) Sports arenas
(t) Enclosed, indoor areas of bars
(u) Bed and breakfast establishments, hotels and motels, except as provided in 5(d)
(v) Educational facilities

(4) Prohibition of Smoking in Places of Employment.
(a) It shall be unlawful for any person to smoke cigarettes or tobacco products in places of employment.
(b) Every building that is a place of employment shall have at least one entrance that is smokefree. For buildings with fewer than four (4) entrances, no more than one entrance may be designated as a smoking entrance. For buildings with four (4) or more entrances, no more than twenty-five percent (25%) of all entrances may be designated as a smoking entrance.

(5) Exceptions. The following areas shall not be subject to the smoking restrictions of this section:
(a) Any stage of any theater when used in connection with any theatrical performance and so noticed in the program
(b) Hotel and motel rooms that are rented to guests and are designated as smoking rooms; provided, however, that not more than ten percent (10%) of rooms rented to guests in a hotel or motel may be so designated. All smoking rooms on the same floor must be contiguous and smoke from these rooms must not infiltrate into areas where smoking is prohibited under the provisions of this ordinance. The status of rooms as smoking or nonsmoking may not be changed, except to add additional nonsmoking rooms.

(6) Signage.
(a) Signs prohibiting, prohibiting except in designated areas, or permitting smoking, as the case may be, shall be posted conspicuously at every building, structure, or public place entrance and in prominent locations throughout the premises by the proprietor, employer or other person in charge of each building, structure or public place specified in Paragraphs 3-6. Signs in outdoor areas designated as nonsmoking shall be placed so that the public has reasonable notice of the prohibition. Signs shall reference "Monona Ord. 8-1-12".
(b) Restaurants and bars shall post, in a conspicuous place at each entrance normally used by the public, a sign not smaller than eleven by eight and one-half (11" x 8 ½") inches indicating they are smokefree. Each sign and the language contained therein shall be clearly visible from a distance of at least ten (10) feet. The signage lettering shall be in bold and the lettering shall be a minimum of two (2) inches in height. Each sign shall contain the phone number for the Dane County Division of Public Health and the non-emergency number for the Police Department. Signs shall reference "Monona Ord. 8-1-12".
(c) It shall be unlawful for any person to remove, deface, or destroy any sign required by this Section, or to smoke in any place where any such sign is posted.

(7) Enforcement.

A. This Article shall be enforced by the Chief of Police or an authorized designee.
B. Notice of the provisions of this Article shall be given in writing to all applicants for a business license in the City of Monona .
C. Any citizen who desires to register a complaint under this Article may initiate enforcement with the Chief of Police.
D. The Police Department, Fire Department, or their designees shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this Article.
E. An owner, manager, operator, or employee of an establishment regulated by this Article shall inform persons violating this Article of the appropriate provisions thereof.
F. Notwithstanding any other provision of this Article, an employee or private citizen may bring legal action to enforce this Article.
G. In addition to the remedies provided by the provisions of this Section, the Chief of Police or any person aggrieved by the failure of the owner, operator, manager, or other person in control of a public place or a place of employment to comply with the provisions of this Article may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction.

(8) Retaliation Prohibited. No person shall discharge, refuse to hire, refuse to serve or in any other manner retaliate against any employee, applicant for employment, customer, service user, business patron or any other person because that person exercises any rights afforded by this section.

(9) Clean Indoor Air.
(a) Intent and Construction. The City of Monona finds that it is in the interests of the health, safety and welfare of the community to adopt by reference Sec. 101.123, Wis. Stats., and subsequent amendments, additions and recodifications. It is the intent of the Common Council that where there may be conflict between Sec. 101.123, Wis. Stats. and Sec. 14.10, that the section most restrictive of smoking and tobacco use shall apply. This ordinance shall not be construed to mean that progressive discipline of City employees for violations of laws, rules, and regulations is only authorized where explicitly provided by ordinance.
(b) Penalty. The penalties provided by Sec. 101.123, Wis. Stats. shall be in addition to the penalties provided for violation of Sec. 8-1-12 when a person has violated both laws. In addition to the penalties provided by Sec. 8-1-12 and Sec. 101.123, Wis. Stats., any City employee who violates any provision of Sec. 8-1-12 or Sec. 101.123, Wis. Stats., may also be subject to progressive discipline by his or her employer.

(10) Severability. The provisions of this section are severable. If any provision of this section is held to be invalid or unconstitutional or if the application of any provision of this section to any person or circumstance is held to be invalid or unconstitutional, such holding shall not affect the other provisions or applications of this section which can be given effect without the invalid or unconstitutional provisions or applications. It is hereby declared to be the intent of the Common Council that this section would have been adopted had any invalid or unconstitutional provision or applications not been included herein.

(11) Nonretaliation; Nonwaiver of Rights
A. No person or employer shall discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant, or customer exercises any rights afforded by this ordinance or reports or attempts to prosecute a violation of this ordinance. Notwithstanding Section 11, violation of this Subsection shall be a misdemeanor, punishable by a fine not to exceed $1000 for each violation.
B. An employee who works in a setting where an employer allows smoking does not waive or otherwise surrender any legal rights the employee may have against the employer or any other party.

(12) Violations and Penalties

A. A person who smokes in an area where smoking is prohibited by the provisions of this Article shall be guilty of an infraction, punishable by a fine not exceeding fifty dollars ($50).
B. Except as otherwise provided in Section (10), a person who owns, manages, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this Article shall be guilty of an infraction, punishable by:
1. A fine not exceeding one hundred dollars ($100) for a first violation.
2. A fine not exceeding two hundred dollars ($200) for a second violation within one (1) year.
3. A fine not exceeding five hundred dollars ($500) for each additional violation within one (1) year.
C. In addition to the fines established by this Section, violation of this ordinance by a person who owns, manages, operates, or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to the person for the premises on which the violation occurred.
D. Violation of this ordinance is hereby declared to be a public nuisance, which may be abated by the City by restraining order, preliminary and permanent injunction, or other means provided for by law, and the City may take action to recover the costs of the nuisance abatement.
E. Each day on which a violation of this ordinance occurs shall be considered a separate and distinct violation.

(13) Adopted Date. This Sec. 8-1-12 was duly adopted by the City of Monona Common Council on the _______ day of ______________________, 2008 .

(14) Effective Date. This Sec. 8-1-12 shall take effect on 120 days after enactment.