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.”