Chippewa Update
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Lost in the smoke: Response to a question on a smoking ban may have statewide implications
October 22, 2011
Mike Hanke, a Chippewa Falls City Council member, talks with representatives of city taverns during a meeting at the Snout Saloon on Friday morning.
Mike Hanke would like the city of Chippewa Falls to adopt the state’s workplace smoking ban as a city ordinance.? That way, the city could give tickets when there are violations, instead of relying on the county district attorney’s office to prosecute offenders.
“To me, that’s the easiest and simplest way of doing this,” he said.
Problem is, he’s not sure the city can legally do that. An email from an assistant attorney general casts doubt if it can be done.
Potentially, that has statewide implications for towns, villages and cities that have already created their own ordinances mirroring the smoking ban, also known as Act 12.
“I don’t know if Act 12 would allow us to enact Act 12 as a city ordinance,” he said.
Hanke, who represents the city’s First Ward, spelled out his reservations before a gathering of tavern owners at the Snout Saloon, 13 W. Central St., on Friday morning.
Several of those same owners complained at Tuesday’s city council about a proposed city ordinance that is based on one adopted in Eau Claire before the state law took effect. The council voted to delay action on the proposed ordinance.
Hanke said the city wanted an ordinance, because the Chippewa County District Attorney’s office has not prosecuted smoking violators. The D.A.’s office has gone through staffing shortages, including having D.A. Jon Theisen resign on Monday after being appointed as a judge in Eau Claire County.
Hanke said there’s at least one bar in the city that that is allowing smoking inside the bar, which would be a violation of state law. The bar reportedly sets out ash trays on the counter for their morning patrons. He added he wouldn’t name the bar, because he doesn’t know which specific bar is doing this. But he has heard this is happening in the city.
Hanke said a warning is issued for a first offense.
“The smoker does not get the warning,” added Rob Summerfield, seventh district director of the Tavern League of Wisconsin and an operator of Two-Acres Supper Club in Bloomer. “The establishment gets the warning.”
Hanke asked Carrie Benedon, assistant attorney general for the Wisconsin Department of Justice, to look over Chippewa Falls’ proposed ordinance.
“The local ordinance may ONLY apply to public property under the city’s own jurisdiction,” Benedon replied.
“The proposed ordinance that you sent to me seems to regulate ALL private businesses, and therefore goes far beyond what is authorized by Section 57 (of the act).”
In other words, state law covers the inside of bars.
“Sounds to me the city can only regulate city-owned property,” Hanke said. That’s what has him? concerned about adopting the state law as a city ordinance.
“I don’t know if the city can regulate smoking inside,” he said.
If that’s the case, ordinances adopted elsewhere using the same language as the state law may not be valid.
Plus, Hanke said the proposed Chippewa Falls ordinance allows for forfeitures that are larger than called for in the state law, and allows city officials such as the health inspector and building inspector to issue citations.
But Act 12 said citations to the law may be issued by the attorney general’s office, sheriff’s departments, police departments and town constables.
Benedon wrote to Hanke that there’s been no state case law or a formal opinion of the attorney general on allowing officials such as the building inspector to issue a citation.
But, Benedon wrote: “Based on the plain language of Act 12, it seems that the local ordinance may not add additional enforcement mechanisms or fines for violations that occur other than on public property within the city’s jurisdiction, because the city ordinance may not apply at all to anything other than public property within the city’s jurisdiction.
“If the city ordinance may only apply to public property (as is clear under the language of Act 12), it follows that the city cannot impose its own fine for a violation that occurs on non-public property that is different than the fine authorized under the state law.”
For now, Hanke urged bar owners to pressure those those taverns allowing smoking inside the bars to follow state law.
“Quit it. Have them go outside,” he said of smokers.
“We don’t have to like Act 12. We don’t have to agree with Act 12.
“It is the law.”
October 22, 2011
Mike Hanke, a Chippewa Falls City Council member, talks with representatives of city taverns during a meeting at the Snout Saloon on Friday morning.
Mike Hanke would like the city of Chippewa Falls to adopt the state’s workplace smoking ban as a city ordinance.? That way, the city could give tickets when there are violations, instead of relying on the county district attorney’s office to prosecute offenders.
“To me, that’s the easiest and simplest way of doing this,” he said.
Problem is, he’s not sure the city can legally do that. An email from an assistant attorney general casts doubt if it can be done.
Potentially, that has statewide implications for towns, villages and cities that have already created their own ordinances mirroring the smoking ban, also known as Act 12.
“I don’t know if Act 12 would allow us to enact Act 12 as a city ordinance,” he said.
Hanke, who represents the city’s First Ward, spelled out his reservations before a gathering of tavern owners at the Snout Saloon, 13 W. Central St., on Friday morning.
Several of those same owners complained at Tuesday’s city council about a proposed city ordinance that is based on one adopted in Eau Claire before the state law took effect. The council voted to delay action on the proposed ordinance.
Hanke said the city wanted an ordinance, because the Chippewa County District Attorney’s office has not prosecuted smoking violators. The D.A.’s office has gone through staffing shortages, including having D.A. Jon Theisen resign on Monday after being appointed as a judge in Eau Claire County.
Hanke said there’s at least one bar in the city that that is allowing smoking inside the bar, which would be a violation of state law. The bar reportedly sets out ash trays on the counter for their morning patrons. He added he wouldn’t name the bar, because he doesn’t know which specific bar is doing this. But he has heard this is happening in the city.
Hanke said a warning is issued for a first offense.
“The smoker does not get the warning,” added Rob Summerfield, seventh district director of the Tavern League of Wisconsin and an operator of Two-Acres Supper Club in Bloomer. “The establishment gets the warning.”
Hanke asked Carrie Benedon, assistant attorney general for the Wisconsin Department of Justice, to look over Chippewa Falls’ proposed ordinance.
“The local ordinance may ONLY apply to public property under the city’s own jurisdiction,” Benedon replied.
“The proposed ordinance that you sent to me seems to regulate ALL private businesses, and therefore goes far beyond what is authorized by Section 57 (of the act).”
In other words, state law covers the inside of bars.
“Sounds to me the city can only regulate city-owned property,” Hanke said. That’s what has him? concerned about adopting the state law as a city ordinance.
“I don’t know if the city can regulate smoking inside,” he said.
If that’s the case, ordinances adopted elsewhere using the same language as the state law may not be valid.
Plus, Hanke said the proposed Chippewa Falls ordinance allows for forfeitures that are larger than called for in the state law, and allows city officials such as the health inspector and building inspector to issue citations.
But Act 12 said citations to the law may be issued by the attorney general’s office, sheriff’s departments, police departments and town constables.
Benedon wrote to Hanke that there’s been no state case law or a formal opinion of the attorney general on allowing officials such as the building inspector to issue a citation.
But, Benedon wrote: “Based on the plain language of Act 12, it seems that the local ordinance may not add additional enforcement mechanisms or fines for violations that occur other than on public property within the city’s jurisdiction, because the city ordinance may not apply at all to anything other than public property within the city’s jurisdiction.
“If the city ordinance may only apply to public property (as is clear under the language of Act 12), it follows that the city cannot impose its own fine for a violation that occurs on non-public property that is different than the fine authorized under the state law.”
For now, Hanke urged bar owners to pressure those those taverns allowing smoking inside the bars to follow state law.
“Quit it. Have them go outside,” he said of smokers.
“We don’t have to like Act 12. We don’t have to agree with Act 12.
“It is the law.”
Local smoking ban possibility
Feb 03, 2007
ROD STETZER
ROD STETZER
Banning smoking in taverns and restaurants hasn’t caught fire in Chippewa County. But that may be changing.
Wisconsin Gov. Doyle in last week’s State of State address pushed for a state smoking ban in taverns, restaurants, workplaces and public buildings. Sixteen other states have comprehensive smoking bans and 13 others are considering them.
A state ban would, of course, cover Chippewa County. But even if Doyle’s plan is snuffed out by the Legislature, Chippewa County could still enact a similar ban.
And Jean Durch, director of the Chippewa County Department of Public Health, would like to see that.
Durch said her department is planning to approach the county about a smoking ban in public places this year. “We don’t have a definitive timetable set yet. Probably earlier the better,” she said.
If that happens, expect the approximately 90 members of the the Chippewa County Tavern League to object.
“The general consensus is, it should be an individual choice,” said Karen Anderson of Cadott and president of the county tavern league.
She added the tavern league will not take a position on Doyle’s proposal until they see it.
Anderson said to the best of her knowledge, all county taverns allow smoking and only one bar in Eau Claire County is smoke-free.
A ban wouldn’t get Jack Covill’s vote if it comes before the Chippewa Falls City Council.
Covill, the city’s First Ward alderman, favors banning smoking in city-owned buildings. But it shouldn’t be extended to taverns or restaurants, he said.
“To me, it’s all about property rights,” Covill said.
To Pam Guthman of Holcombe, it’s about being able to walk into a place without inhaling second-hand smoke.
“Of course clean indoor air needs to extend to all workplaces including bars and restaurants,” Guthman wrote to the Chippewa Herald on Feb. 2.
“This is not an invasion on businesses. We have public health rules regarding food safety and we need public health rules for clean indoor air for everyone.
“We have teens and young adults who waitress and tend bar for eight hours or more who are being exposed to second-hand smoke during their shift,” she wrote.
But Anderson has different view on that.
“If I apply for a job at a bar, I know there will be smoking,” she said.
Anderson said Chippewa County taverns would lose customers if a ban is put into place. “Initially, I think they would lose a lot of business,” she said.
And that would hurt more than just the bars.
“When bars are hurt, tax dollars decrease, so it will be a snowball effect,” she said.
But Durch said smoking in public places such as restaurants or taverns affects more people than employees or customers.
For example, it’s legal in Wisconsin for a parent to bring along a child to a bar where they are exposed to second-hand smoke, she said.
“I understand we want private businesses to make private decisions, but those are still public areas,” Durch said.
Covill said children taken to taverns by their parents are probably already exposed to second-hand smoke at home, but the government doesn’t ban that.
“The children don’t belong to the government,” he said, adding that market forces will dictate whether a business decides to go smoke-free.
Anderson has a similar thought.
“I have faith in the public. I think they can make their own decisions,” she said.
Jennifer Lenblom’s group is working to influence youngsters to decide not to take up smoking.
Lenblom, a R.N., is coordinator of the Chippewa Valley Tobacco-Free Coalition, a group that promotes tobacco education and policies against second-hand smoke.
Lenblom said she favors the governor’s proposal, which includes increase the state’s tobacco tax by $1.25 a pack and triple the funding for smoking prevention programs.
“Overall, it would be nice for the county to have some legislation,” she said. But the coalition wants to first get the ideas of the community to see what would be appropriate.
