Smoking Prohibition in Certain Areas., Chapter 7. Health and Sanitation, Municipal Code, Code of Ordinances, West Allis

(1)

Findings. The Common Council of the City of West Allis finds that:

(a)

It is recognized that smoking of cigarettes and tobacco products is hazardous to an individual's health and affects the health of nonsmokers when they are in the presence of smoking.

(b)

Numerous scientific studies have found that tobacco smoke is a major contributor to indoor pollution.

(c)

Reliable scientific studies, including studies conducted by the Surgeon General of the United States, have shown that breathing sidestream or secondhand smoke is a significant health hazard to nonsmokers; particularly to children, the elderly, individuals with cardiovascular disease and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease.

(d)

Health hazards induced by breathing sidestream or secondhand smoke include lung cancer, respiratory infection, decreased respiratory function, decreased exercise tolerance, bronchoconstriction and bronchospasm.

(e)

Air pollution caused by smoking is an offensive annoyance and irritant and smoking results in serious and significant physical discomfort to nonsmokers.

(f)

The purported health benefits from electronic smoking devices have not been scientifically proven, and use of these devices has not been proven safe, either for their users or for bystanders. More than one study has concluded that exposure to vapor from electronic smoking devices may cause passive or secondhand vapor inhalation. Clinical studies about the safety and efficacy of electronic smoking devices have not been submitted to the FDA for the more than four hundred (400) brands of electronic smoking devices that are on the market, and consumers have no knowledge of whether electronic smoking devices are safe; what types of concentration of potentially harmful chemicals the products contain; and what dose of nicotine the products deliver. The World Health Organization has strongly advised consumers against the use of electronic smoking devices until they are "deemed safe and effective and of acceptable quality by a competent national regulatory body." The World Medical Association has determined that electronic smoking devices "are not comparable to scientifically-proven methods of smoking cessation" and that "neither their value as therapeutic aids for smoking cessation nor their safety as cigarette replacements is established." A study has shown that heavy exposure to electronic smoking device vapor damages DNA in cell cultures and causes genetic instability that may lead to cancer.

[Ord. O-2016-0002, 7/5/2016]

(g)

Research indicates electronic smoking devices may lead youth to try other tobacco products. In addition, research indicates that youth who use electronic smoking devices are more likely to use tobacco products, including cigarettes, than those youth who do not use electronic smoking devices.

[Ord. O-2016-0002, 7/5/2016]

(h)

Electronic smoking devices are currently unregulated and have been proven to emit nicotine, ultra-fine particles, volatile organic compounds and other toxins. Inhalation of nicotine is proven to be dangerous to everyone, especially children and pregnant women. Exposure to ultrafine particles may exacerbate respiratory illnesses, such as asthma, and may constrict arteries which could trigger a heart attack. The volatile organic compounds, such as formaldehyde and benzene, found in electronic smoking device aerosols, as well as conventional cigarette smoke, are proven carcinogens.

[Ord. O-2016-0002, 7/5/2016]

(i)

A Harvard University health study found high levels of diacetyl in 39 of 51 unique flavors of chemicals used in electronic smoking devices. Diacetyl is associated with bronchiolitis obliterans and other severe respiratory diseases among workers who have inhaled heated vapors containing diacetyl.

[Ord. O-2016-0002, 7/5/2016]

(j)

Existing studies on electronic smoking devices' vapor emissions and cartridge contents have found a number of dangerous substances including: carcinogens such as formaldehyde, acetaldehyde, lead, nickel, and chromium; PM 2.5, acrolein, tin, toluene, and aluminum which are associated with a range of negative health effects such as skin, eye, and respiratory irritation, neurological effects, damage to reproductive systems, and premature death from heart attacks and stroke; inconsistent labeling of nicotine levels in electronic smoking device products; and in one instance, diethylene glycol, an ingredient used in antifreeze and toxic to humans.

[Ord. O-2016-0002, 7/5/2016]

(2)

Purpose. This ordinance is adopted for the purpose of:

(a)

Protecting the public health, safety, comfort and general welfare of the people of the City of West Allis.

(b)

Clarifying and expanding upon the state's Smoking Ban Law enacted by 2009 Act 12 under the authority created by subsection 101.123(2)(c) of the Wisconsin Statutes and subsection 101.123(4m) as created by the Act.

(c)

Assisting owners, operators and managers in complying with state law and this ordinance.

(3)

Definitions. Except as set forth below, the definitions of subsection 101.123(1) of the Wisconsin Statutes are hereby adopted. In this section:

(a)

"City Buildings" means all City-owned or operated buildings and those portions of buildings leased or operated by the City.

(b)

"Electronic smoking device" means an electronic device that can be used to deliver an inhaled dose of nicotine or any other substance intended for human consumption that may be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. It includes any such device whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, vape pen or any other product name or descriptor.

[Ord. O-2016-0002, 7/5/2016]

(c)

"Smoking" means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form. Smoking also includes the use of an electronic smoking device which creates an aerosol or vapor in any manner or in any form or the use of any oral smoking device.

[Ord. O-2016-0002, 7/5/2016]

(4)

Prohibition Against Smoking. No person may smoke in any of the following:

(a)

Any place prohibited by subsection 101.123(2) of the Wisconsin Statutes, which are expressly adopted and incorporated herein.

(b)

Any City building, including the grounds of the Farmers' Market. The grounds of the Farmers' Market shall include all areas where food is displayed or offered for sale except on dates for events specifically designated by the Common Council as community events. This prohibition shall not apply to designated smoking units of Beloit Road Housing.

(c)

Any enclosed indoor area in any place prohibited by Subsection 101.123(2) of the Wisconsin Statutes.

(d)

Any City park or grounds while being used by the West Allis-West Milwaukee School District for school-related events.

(e)

Within the pool area at the Liberty Heights Pool. The pool area shall include the entire area inside the chain-link fencing.

[Ord. O-2012-0001, 1/17/2012]

(f)

Within one hundred (100) feet of any playground, equipment, or recreational area owned by the City or the West Allis/West Milwaukee School District specifically designed to be used by children that has play equipment installed. Such prohibition shall not apply to a person located on private property.

[Ord. O-2016-0002, 7/5/2016]

(5)

Exceptions. The prohibition against smoking shall not apply to any of the following:

[Ord. O-2016-0002, 7/5/2016]

(a)

Those places or areas set forth in Subsection 101.123(3) of the Wisconsin Statutes.

(b)

For the purpose of smoking electronic smoking device liquids in an electronic smoking device only, premises that are validly licensed under Section 9.36 of the Code as of November 1, 2016, and that prohibit minors from entering or remaining on the premises. Such exception shall become invalid if the premises is no longer validly licensed at any time or is unoccupied for a period greater than one (1) year.

[Ord. O-2016-0044, 9/6/2016]

(6)

Interpretation. Whenever the provisions of the Wisconsin Statutes and this section conflict, the provisions of this section shall apply.

(7)

Outside Areas. Any person in charge of a restaurant, tavern, private club, or retail establishment that is subject to this ordinance may designate an outside area that is a reasonable distance from the entrance to said establishment where customers, employees, or persons associated with the establishment may smoke. The designated smoking area shall contain receptacles for trash and cigarette butts and shall be kept in a neat and orderly manner, and all trash or cigarette butts shall be placed in a proper receptacle.

(8)

Statute Adopted. Except as expressly altered by this section, the provisions of Section 101.123 of the Wisconsin Statutes are hereby adopted and incorporated herein.

(9)

Penalty.

(a)

Any person who violates Subsection (4) or (7) shall forfeit not less than one hundred dollars ($100.) nor more than two hundred fifty dollars ($250.) for each violation.

(b)

Any person in charge who violates Subsection 101.123(2m) of the Wisconsin Statutes shall forfeit one hundred dollars ($100.) for each violation.

(c)

In addition to the forfeiture, any person who violates the provisions of this ordinance shall pay the costs of prosecution, except for the crime laboratories and drug law enforcement surcharge under Subsection 165.755(1)(a) of the Wisconsin Statutes. Each day of violation shall constitute a separate offense.

(10)

Enforcement. Prior to issuing a citation to a person in charge for a violation of this ordinance, the Police Department shall first issue a written warning notice. Once a person in charge has been issued a warning, she/he may be issued citations for violations of this ordinance but not to exceed one hundred dollars ($100.) in total for all violations of Section 101.123(2m) of the Wisconsin Statutes occurring on a single day.

(11)

No person shall use an electronic smoking device on school grounds.

[Ord. O-2016-0002, 7/5/2016]