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Wisconsin Goes Smoke-Free

Jun. 16, 2010
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When you live in a civil society, you can’t do everything you want, when you want, wherever you want. Never is that fact of civilization more clear than when a populous has to start abiding by a newly penned law. Here in Wisconsin, Act 12—also known as the Smoke-Free Law, or the Smoking Ban Law (depending on how you look at it)—goes into effect on July 5. The debate surrounding the passage of the law was, and still is, quite heated, and, because of a weird definition of what a wall is, confusion about Act 12 persists.

Over the past four decades no single issue has preoccupied the Surgeons General of the United States more than smoking. Their reports have alerted our country to the health risk of the habit and transformed the issue from one of individual and consumer choice to one of epidemiology and public health. In time, organizations such as the U.S. National Institutes of Health, the U.S. Centers for Disease Control and Prevention, the U.S. National Cancer Institute, and the World Health Organization agreed that secondhand smoke causes the same problems as direct smoking, including cardiovascular disease, lung cancer and ailments such as asthma, bronchitis and emphysema. Public attitudes toward smoking changed with those reports, and, as a result, so did policy.

“Here in Wisconsin, the smoke-free movement really started at a local level,” explains Maureen Busalacchi, executive director of SmokeFree Wisconsin, an organization committed to reducing tobacco use in Wisconsin through policy change. “When Madison and Appleton passed comprehensive [smoke-free] laws—they both implemented on July 1, 2005—that’s when the state conversation really heated up.”

Yet, while all our neighboring states—Minnesota, Illinois, Michigan and Iowa—passed statewide smoke-free laws, Wisconsin wasn’t ready to give up the ashtray. The ban’s biggest opponent was the Tavern League of Wisconsin (TLW). The TLW typically lobbies for member interests at a state and federal level, and updates and supports licensees on legal and legislative issues affecting their industry, among other things. On the other side, a coalition supporting the statewide smoking ban grew larger in number, and included several local chambers of commerce and tourist bureaus, as well as heavyweight partners such as the Wisconsin Restaurant Association, the American Cancer Society, the American Heart Association, and the American Lung Association of Wisconsin.

Protecting Public Health

Legislative battles over whether to pass a statewide smoking ban ensued until May 2009, when supporters and opponents reached a compromise, and both houses of the Wisconsin Legislature voted in favor of the smoking ban (the Senate voted 25-8, and the Assembly 61-38).Signed by Gov. Jim Doyle on May 18, 2009, Wisconsin Act 12 serves to “protect the health and comfort of the public” by prohibiting smoking in a number of specified places that are enclosed, including workplaces, both privately and publicly owned, such as bars and restaurants. According to information from the Wisconsin Legislative Council, smoking is defined as the burning or holding of, or inhaling or exhaling smoke from a lighted cigarette, cigar, pipe, or any other lighted smoking equipment.

Indoor smoking is still allowed in private residences and some residence rooms in assisted-living facilities, as well as in tribal facilities, including casinos. As long as it is either a cigar or a pipe, indoor smoking is also permitted in retail tobacco stores or tobacco bars that have been in existence as of June 3, 2009.

Under the smoke-free law signed by Gov. Doyle in 2009, an “enclosed place” was defined as a structure or area that has a roof and more than two substantial walls. A “substantial wall” was defined as a wall with an opening, door or window, that may be used to allow air in from the outside, that is less than 25% of the wall’s surface area. This definition excluded a solid wall with no windows. So in April 2010, less than three months before the law was going into effect, the Legislature passed and the governor signed into law Act 276, which amended the definition of substantial wall to mean a wall without an opening or with an opening that either does not allow air in from the outside or that is less than 25% of the wall’s surface area. The new law allows smoking in structures that have a roof but not more than two substantial walls, so establishment owners can construct outdoor patios or designate an outside area on public property where customers can smoke.

Now that the smoke-free law has passed, restaurant and tavern owners are focusing on where they can allow their patrons to smoke. According to a letter written by Tavern League of Wisconsin President Rob Swearingen to TLW members, the TLW ultimately supported Act 12 because the compromise contained two key elements—a phase-in period and pre-emption. The phase-in period gave owners more than a year to prepare their establishments for the law to go into effect on July 5, 2010. As for pre-emption, under Act 12 counties, cities, towns and villages retain their authority to enact ordinances as long as they comply with the purpose of the smoking ban, which is to protect public health. The Act makes one new change to this local authority: If a county, city, town or village enacts any ordinance regulating or prohibiting outside smoking, the ordinance may apply only to public property under the entity’s jurisdiction. In addition, the ordinance must provide that a bar or restaurant may designate an outside area where people can smoke that is a reasonable distance from an entrance to the building.

Enforcement of New Law

Local police and sheriff’s departments have the power to enforce the smoking ban. For the “persons in charge” of places where smoking is prohibited, take heed. Act 12 requires that you enforce the prohibitions by taking steps to foster compliance, such as not providing ashtrays and matches; posting “no smoking” signs; asking a person to stop smoking; asking a person who is smoking to leave; refusing to serve said person; and notifying the law if that person refuses to leave after being requested to do so. Anyone caught smoking in a prohibited area is subject to a $100-$250 fine for each violation. Anyone in charge who violates the “person in charge” provision will be issued a warning notice for the first violation, and a $100 fine for each violation after that (but that amount can’t exceed $100 in total for all violations occurring on a single day).

It’s the end of an era, folks. The days of catching a show, sipping a beer or serving a meal in a haze of tobacco smoke will soon be history. Whether you support it or oppose it, the statewide smoking ban is a reality on July 5.


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