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Municipal Code

Chapter 11. Public Nuisances

Sec. 11-11. Smoking prohibited.

(1) Definitions. As used in this section:

Assisted living facility means a community based residential facility, as defined in Wis. State Sec. 50.01 (1g), a residential care apartment complex, as defined in s. 50.01(1d), or an adult family home, as defined in s. 50.01 (1) (b).

Child care center has the meaning given in s. 49.136 (1)(ad), Stats.

Correctional facility means any of the following:

1.  A state prison, as defined or named in Wis. Stat. Section 302.01, except a correctional institution under s. 301.046 (1) or 301.048 (4) (b) if the insitution is the prisoners place of residence and no one is employed there to ensure the prisoners incarceration.

2.  A juvenile detention facility, as defined in s. 938.02 (10r), or a juvenile correctional facility, as defined in s. 938.02 (10p), except a juvenile correctional facility authorized under s. 938.533(3)(b), 938.538 (4)(b), or 938.539 (5) 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 s. 165.85 (2) (bg), a Huber facility under s. 303.09, a work camp under s. 303.10, a reforestation camp under s. 303.07, or a lockup facility under s. 302.30.

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.

Notwithstanding Wis. Stat. Sec. 101.01 (5), "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.

Enclosed place means a structure of area that has a roof and more than two substantial walls.

Inpatient health care facility means a hospital, as defined in Wis. Stat. Sec. 50.33(2), a county home established under s. 49.70, a county infirmary established under s. 49.72, a nursing home, as defined in s. 50.01(3), a hospice, as defined in s. 50.90 (1), a Wisconsin veterans home under s. 45.50, or a treatment facility.

Lodging establishment means any of the following:

  1. A bed and breakfast establishment, as defined in s. 254.61 (1) Stats.;
  2. A hotel, as defined in s. 254.61 (3) Stats.;
  3. A tourist rooming house, as defined in s. 254.61 (6) Stats.

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 section.

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.  notwithstanding s. 101.01 (11), Stats.

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.

Public conveyance means a mass transit vehicle as defined in Wis. Stat. Sec. 340.01 (28m), a school bus as defined in s. 340.01 (56), 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.

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.

Restaurant means an establishment as defined in s. 254.61 (5), Stats.

Retail establishment means any store or shop in which retail sales is the principal business conducted.

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.

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.

Sports arena means any stadium, pavilion, gymnasium, swimming pool, skating rink, bowling center, or other building where spectator sporting events are held.

State institution means a mental health institute as defined in s. 51.01 (12), Stats. or a center for the developmentally disabled as defined in s. 51.01 (3), Stats. or a secure mental health facility as which persons are committed under s. 980.06, Stats.

Substantial wall means a wall with no opening or with an opening that either does not allow air in from the outside or is less than 25 percent of the walls surface area.

Tavern means an establishment, other than a restaurant, that holds a “Class B” intoxicating liquor license or Class “B” fermented malt beverages license.

Tabacco bar means a tavern that generate 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.

Tabacco product means any form of tobacco prepared in a manner suitable for smoking but not including a cigarette.

Treatment facility means a publicly or privately operated inpatient facility that provides treatment of alcoholic, drug dependent, mentally ill, or developmentally disabled persons.

Type 1 juvenile correctional facility has the meaning given in s. 938.02 (19).

(2) PROHIBITION AGAINST SMOKING.

  1. Except as provided in subsection (4), no person may smoke in any of the following enclosed places:
    1. Educational facilities.
    2. Residence halls or dormitories owend or operated by a college or university.
    3. Child care centers.
    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 the places listed above, that are places of employment or that are public places.
  2. 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 35 feet or less from a residence hall or dormitory that is owned or oeprated by the Board of Regents of the University of Wisconsin System.
  3. No person may smoke in any of the followings:  
    1. A sports arena.
    2. A bus shelter.
    3. A public conveyance.

(3) RESPONSIBILITY OF PERSONS IN CHARGE.

  1. No person in charge may allow any person to smoke in violation of subsection (2) at a location that is under the control or direction of the person in charge.
  2. A person in charge may not provide matches, ashtrays, or other equipment for smoking at the location where smoking is prohibited.
  3. 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 or 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.
  4. 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.
  5. A person in charge may take measures in addition to those listed in par. (b) and (c) to prevent persons from being exposed to others who are smoking or to further ensure compliance with this section.

(4) Exceptions.

  1. The prohibition against smoking in subsection (2) does not apply to the following places:
    1. A private residence.
    2. A room used by only one person in an assisted living facility as his or her residence.
    3. A room in an assisted living facility in which 2 or more persons reside if every person that 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.
    4. A retail tobacoo store that is in existence on June 3, 2009, and in which only the smoking of cigars and pipes is allowed.
    5. A tobacco bar that is in existence on June 3, 2009, and in which only the smoking of cigars and pipes is allowed.  

(5) Penalties.

  1. Any person who violates subsection (2) shall be subject to a forfeit not less than $100 and not more than $250 per violation.
  2. Except as provided in par. (c) or (d), any person in charge who violates subsection (3) shall be subject to a forfeiture of $100 for each violation.
  3. 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 subsection (3), the law enforcement officer shall issue the person in charge a warning notice and may not issue a citation.
  4. No person in charge may be required under par. (b) to forfeit more than $100 in total for all violations of subsection (3) occurring on a single day.

(6)  Injunction.   Notwithstanding s. 165.50, Stats., state or local officials or any affected party may institute an action in any court with jurisdiction to enjoin repeated violations of this section.

(7) All references to the Wisconsin statutes set forth herein shall include all acts amendatory thereof and supplementary thereto.

(Ord. No. 1108, 1, 4-8-2008)