Lost in the smoke: Response to a question on a smoking ban may have statewide implications

2011-10-22T23:45:00Z 2011-10-23T09:33:17Z Lost in the smoke: Response to a question on a smoking ban may have statewide implicationsBy ROD STETZER | rod.stetzer@lee.net Chippewa Herald
October 22, 2011 11:45 pm  • 

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.”

Copyright 2015 Chippewa Herald. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

(13) Comments

  1. MichaelJMcFadden
    Report Abuse
    MichaelJMcFadden - November 01, 2011 4:02 am
    CFDad said: "MJM, if you smokers do not regulate yourselves, you will lose your right to self-destruct. I don't want to have to breath second hand smoke ANYWHERE. Having said that, if you want to smoke in your home or on private property (bars, etc) I have no problem because I can simply steer clear.

    So you have no objection to bars/restaurants/privateclubs or businesses allowing smoking if the owner wants? I agree completely.

    Re "parks, etc" What's "etc"? Sidewalks?

    - MJM
  2. CFDad
    Report Abuse
    CFDad - October 31, 2011 12:47 pm
    MJM, if you smokers do not regulate yourselves, you will lose your right to self-destruct. I don't want to have to breath second hand smoke ANYWHERE. Having said that, if you want to smoke in your home or on private property (bars, etc) I have no problem because I can simply steer clear. I do not support smoking in parks, etc. Again, you can fight that and disagree and lose to the liberal banners or you can self-regulate and keep your privilege to smoke. Your choice.
  3. MichaelJMcFadden
    Report Abuse
    MichaelJMcFadden - October 29, 2011 10:26 pm
    CFDad, you wrote, "Having said that, I won't tolerate your second hand smoke in public areas. Fair enough?"

    CF, depends on what you mean by "public area." If you're talking about courts/hospitals where people are forced to be, then maybe yes (though separately vented smoking rooms should be permitted though not required.) If you're trying to sneak bars/parks in as "public areas," then no. Confusing public/private is an antismoking tactic that's been used for years, that's why I ask.

    - MJM
  4. CFDad
    Report Abuse
    CFDad - October 28, 2011 12:02 pm
    I'm good with smoking in your home, on private property and establishments where the owner has approved it.

    So I do not support the ban, I agree that it is a slippery slope to other bans and losses of freedoms. Your lungs are your business as long as I don't have to pay for your decision to self-destruct. Unfortunately, public health funding means they become my business as well ($$).

    Having said that, I won't tolerate your second hand smoke in public areas. Fair enough?
  5. Merlin
    Report Abuse
    Merlin - October 25, 2011 12:37 pm
    Kings_of_Leon said: "Sure appears that Alan Shore is back under another name like..."the_omniscient_advocate" It's just another pseudonym for the same old blather that we had to endure before."

    Well the TOA is a big more polished than Alan was and also has actual REAL facts behind their statements. So unless Alan magically decided that he was in fact wrong 90% of the time, I don't think it's Alan.
  6. Merlin
    Report Abuse
    Merlin - October 25, 2011 10:27 am
    the_omniscient_advocate said: "These smoking bans...

    “The American people will never knowingly adopt socialism. But, under the name of “liberalism,” they will adopt every fragment of the socialist program, until one day America will be a socialist nation, without knowing how it happened. I no longer need to run as a Presidential Candidate for the Socialist Party. The Democratic Party has adopted our platform.” - Norman Thomas 1944

    Enough said...
  7. MichaelJMcFadden
    Report Abuse
    MichaelJMcFadden - October 24, 2011 8:13 pm
    TDarby wrote, "Everybody has to pay for the high cost of medical care for smokers."

    Sorry TDarby: it's the other way around. In the long run eliminating smoking would ADD an extra 15% to everyone's medical bills. If the Antismokers are actually correct about smoking's effects on people's health then smokers don't have as much expensive "old-age" med care. See:

    http://cantiloper.tripod.com/canti7.html


    Michael J. McFadden,
    Author of "Dissecting Antismokers' Brains"
  8. 8EMUP
    Report Abuse
    8EMUP - October 24, 2011 3:35 pm
    In 2005, more than $230 BILLION was needed to cover the 2,900,000 injuries caused by 6.5 million auto accidents. If everyone stopped driving, we could save 115 deaths per day! Or is it only ok to deny rights to people of things you don't do?
  9. Merlin
    Report Abuse
    Merlin - October 24, 2011 3:11 pm
    the_omniscient_advocate said: "that's an excellent question. Law must emanate from the constitution. When you “create” laws with no basis in the constitution (BANS). You are not empowering people you are in fact empowering government over the people. If you don’t understand or disagree with that statement you don’t understand what your supporting. "

    Well said.
  10. Merlin
    Report Abuse
    Merlin - October 24, 2011 3:10 pm
    Rainmaker said: "Bottom line. Quit it. Go smoke outside. Stop stinking up the place. "

    That as arrogant as me asking you to start smoking so you fit in. YOU do not have the right to tell me or anyone else WHAT legal activity we wish to indulge in.

    Take your entitlement elitist attitude elsewhere - you obviously do NOT believe in Freedom.
  11. TDarby
    Report Abuse
    TDarby - October 24, 2011 8:06 am
    Everybody has to pay for the high cost of medical care for smokers. Reducing smoking saves lives. Chippewa and everyone else should do their best to reduce smoking. Second hand smoke is dangerious.
  12. ECresident
    Report Abuse
    ECresident - October 23, 2011 7:24 am
    Want to make it an ordinance? Thats a laugh, even if it were done the cops wouldnt be around to hand out tickets! Leave well enough alone and let our protective Mom and Dad (government) decide for us, because its obvious none of us are smart enough to make the right decisions regarding our health, or anything else!
  13. OKOKOKOK
    Report Abuse
    OKOKOKOK - October 22, 2011 4:23 pm
    Who is the injured party???
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