HomeMy WebLinkAbout30. 20-90 FEBRUARY 25, 2020 20-90 ORDINANCE
FIRST READING
(CARRIED LOST LAID OVER WITHDRAWN )
PURPOSE: ADOPT STATE CLEAN INDOOR AIR LAW AND REGULATE
ELECTRONIC SMOKING DEVICES
INITIATED BY: CITY ADMINISTRATION
A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING 17-10
REGULATION OF SMOKING, TOBACCO, AND OTHER PRODUCTS; 17-1.3
REGULATION OF ELECTRONIC SMOKING DEVICES WITH MINORS; 17-46
PENALTIES—ADULTS,AND 17-47 PENALTIES—JUVENILE AND REPEALING 17-18(E)
REGULATIONS OF UNAUTHORIZED PERSONS ON SCHOOL GROUNDS; ALL FOR
THE PURPOSE OF ADOPTING THE STATE CLEAN INDOOR AIR LAW AND
REGULATING THE USE OF ELECTRONIC SMOKING DEVICES AND OTHER
PRODUCTS IN THE CITY OF OSHKOSH.
The Common Council of the City of Oshkosh do ordain as follows:
SECTION 1. That Section 17-10, 17-1.3, 17-46, 17-47 of the City of Oshkosh
Municipal Code are hereby amended to read as shown on the attachment to this ordinance.
SECTION 2. That Section 17-18(E)of the City of Oshkosh Municipal Code is hereby
repealed.
SECTION 3. These ordinance revisions shall be in full force and effect from and
after their passage and publication.
SECTION 4. In the event any section, subsection, clause, phrase or portion of this
ordinance is for any reason held illegal, invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct and
independent provision, and such holding shall not affect the validity of the remainder of
this ordinance. It is the legislative intent of the Common Council that this ordinance
would have been adopted if such illegal provision had not been included or any illegal
application had not been made.
FEBRUARY 25, 2020 20-90 ORDINANCE
FIRST READING CONT'D
SECTION 5. Publication Notice
Please take notice that the City of Oshkosh enacted ordinance #20-XXX ADOPT STATE
CLEAN INDOOR AIR LAW AND REGULATE ELECTRONIC SMOKING DEVICES (A
GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING 17-10
REGULATION OF SMOKING, TOBACCO, AND OTHER PRODUCTS; 17-1.3
REGULATION OF ELECTRONIC SMOKING DEVICES WITH MINORS; 17-46
PENALTIES—ADULTS,AND 17-47 PENALTIES—JUVENILE AND REPEALING 17-18(E)
REGULATIONS OF UNAUTHORIZED PERSONS ON SCHOOL GROUNDS; ALL FOR
THE PURPOSE OF ADOPTING THE STATE CLEAN INDOOR AIR LAW AND
REGULATING THE USE OF ELECTRONIC SMOKING DEVICES AND OTHER
PRODUCTS IN THE CITY OF OSHKOSH) on March 10, 2020. The ordinance adopts the
Clean Indoor Air Law in its entirety and regulates the use of traditional cigarettes as well as
other forms of smoking, including the use of electronic smoking devices, in the City of
Oshkosh.
The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church
Avenue and through the City's website at www.ci.oshkosh.wi.us. Clerk's phone:
920/236-5011.
Section 17-10 REGULATION OF SMOKING,TOBACCO,AND OTHER PRODUCTS
(A) Adoption of State Law: Except as otherwise specifically provided,all provisions of Wis.Stat.
§ 101.123 describing and defining the statewide smoking ban is hereby adopted and by
reference and made a part of this Code as if fully set forth herein. To effect the legislative
intent that regulation of smoking is a matter of statewide concern, it is the intention of this
ordinance to include within such references all provisions of Chapter Wis. Stat. § 101.123 in
effect at the time of adoption of this section together with any applicable prior revisions and
all future recodifications, renumberings and amendments unless otherwise expressly
provided in such references.
(B) Definitions: For purposes of enforcing this ordinance in the City of Oshkosh, the following
definition of"Smoking" shall apply and shall supersede the definition found in Wis. Stat. §
101.123:
"Smoking" shall meaning burning;holding;carrying;or inhaling or exhaling
smoke, mist, aerosol,or vapor from;any of the following items with the ability to
contain tobacco,nicotine, or plant products:
1) A lighted or heated cigarette
2) A lighted or heated cigar
3) A lighted or heated pipe
4) An electronic smoking device(as defined in Section 17-1.3),except that
persons may hold or carry an electronic smoking device as long as it is
not being used to create smoke,mist, aerosol or vapor in any manner or
form.
5) Any other lighted or heated smoking equipment
(C) Prohibited Conduct: Any act required to be performed or prohibited by Wis.Stat.§101.123
is required or prohibited by this ordinance, subject to the revised definition of"smoking"
contained in subsection(B)above.
(D) Prohibited Conduct: Smoking at the Oshkosh Transit Center located at 110 Pearl Avenue
or in any vehicle owned or leased by the City of Oshkosh is prohibited.
(E) Prohibited Conduct: No person shall chew and/or smoke tobacco products in a school
building or on school grounds,nor shall any person possess or attempt to possess an
Electronic Smoking Device(as defined in Section 17-1.3)in a school building or on school
grounds.
(D) Penalty and Enforcement: Any person convicted of a violation of this Ordinance shall
forfeit an amount not less than$100.00 nor more than$250.00. The City of Oshkosh Police
Department shall be the enforcement agency of this Ordinance. A court of competent
jurisdiction may impose any alternative penalty as permitted by law.
SECTION 17-46 PENALTIES-ADULT
(B) A forfeiture of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars
($500.00), together with the costs of prosecution, and in default of payment thereof by
suspension of operator's license for a period not exceeding 60 months or imprisonment for
not exceeding ninety(90)days for a violation of any of the following:
Section 17-17(B)
SECTION 17-47 PENALTIES-JUVENILE
(G) A forfeiture of not less than Twenty-five Dollars ($25.00) for a violation of any of the
following:
Section; 17-17; 17-19; 17-37;and 17-1 adopting§254.92 Wis.Stats.
Section 17-1.3 REGULATION OF ELECTRONIC SMOKING DEVICES WITH
MINORS
SECTION 17-18 REGULATIONS OF UNAUTHORIZED PERSONS ON SCHOOL
GROUNDS
(E) Repealed.
t`d
Cifyf
Oshkosh
TO: Mayor and Members of the Common Council
FROM: Lynn Lorenson, City Attorney
Amy Vanden Hogen, Assistant City Attorney
DATE: February 20, 2020
RE: Ordinance to Regulate Electronic Cigarettes
BACKGROUND
The use of electronic smoking devices (known as "electronic cigarettes," "e-cigarettes," and a
variety of other names) has reached a level of national concern.
In April 2019, the City passed an ordinance prohibiting the use of electronic smoking devices
among minors and the sale of electronic smoking devices to minors. In addition, the use of
electronic smoking devices in municipal buildings, transit center property, city owned vehicles,
and schools was also prohibited.
Since that time, concern among our community regarding electronic smoking devices has
continued, specifically with respect to vaping in public places and second hand aerosol.
Currently, there is no regulation at the state or local level that prohibits the use of electronic
smoking devices in general public places, such as restaurants and bars.
City staff has received the following information from the Winnebago County Health
Department and the American Lung Association regarding the use of electronic smoking
devices in public places:
- According to the CDC, e-cigarette aerosol is not harmless "water vapor" and is not as
safe as clean air. Most e-cigarette aerosol contains nicotine, which is absorbed by users
and bystanders.
- The first study to look at exposure from second hand aerosol from e-cigarettes in real-use
conditions found that non-smokers who were exposed to conventional cigarette smoke
and second-hand aerosol absorbed similar levels of nicotine.
City Hall,215 Church Avenue P.O.Box 1130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
- E-cigarette aerosol can contain potentially harmful chemicals, including heavy metals
like nickel, tin, and lead volatile organic compounds, ultrafine particles, formaldehyde
and other cancer-causing chemicals.
- The US Surgeon General has called on states and municipalities to include e-cigarettes in
smoke-free policies and noted that "smoke-free air policies should be modernized to
include e-cigarettes" in order to protect the public.
Multiple WI municipalities including Appleton, Madison, and Milwaukee have all passed
ordinances that regulate e-cigarette usage in public places. In addition, twenty states have
included e-cigarettes in their existing statewide smoke-free laws. Attached to this memo is a
document from the Winnebago County Health Department in support of incorporating e-
cigarettes into smoke-free air laws.
Wisconsin does not currently have any statewide restrictions on the use of e-cigarettes in public
places. Legislation has been proposed to regulate e-cigarettes (SB442/AB491) but it is not
anticipated that this legislation will pass. As a result,there is currently no regulation at the state
or local level that prohibits the use of electronic smoking devices in general public places.
ANALYSIS
When the City Health Department consolidated with the Winnebago County Health
Department, the City's prior regulations related to smoking and tobacco products were largely
repealed except for certain provisions specifically related to city facilities and juvenile
possession of tobacco products and smoking. With the consolidation, the Winnebago County
Health Department became responsible for enforcement related to health-based regulations
including Wisconsin's Smoke Free Air law. The Winnebago County Health Department has
proposed amendments to the County ordinances related to electronic smoking devices and
supports the City adopting and working with the County Health Department to enforce
Wisconsin's Smoke Free Air Law and new regulations updating the Smoke Free Air Law's
prohibitions to also include heated and electronic smoking devices.
The proposed ordinance revision will replace Section 17-10 Smoking in Municipal Buildings &
Vehicles Prohibited and consolidate all of the clean air/smoking provisions within one section of
the Municipal Code. Previously, Section 17-10 only restricted smoking in City of Oshkosh
municipal buildings and vehicles. The revised Section 17-10 Regulation of Smoking, will continue
to ban smoking in municipal buildings but will also ban both traditional smoking and e-cigarette
smoking in all places that are prohibited under the State of Wisconsin's current Smoke Free Air
law, including restaurants, bars, and places of employment. The proposed ordinance adopts
Wis. Stat. § 101.123 in its entirety (Wisconsin's Smoke Free Air law) and updates the definition
of "smoking" to include heated devices and electronic smoking devices. In addition, the
City Hall,215 Church Avenue P.O. Box 1 130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
proposed ordinance incorporates the prohibition on tobacco use and possession of Electronic
Smoking Devices on school grounds and school buildings previously found in Section 17-18.
The penalty for a violation of Section 17-10 will result in a forfeiture of no less than $100 and
no more than$250, which is consistent with the penalties proscribed in Wis. Stat. § 101.123.
The penalties for juveniles will be the general penalty of not less than$50.
Provisions related to juvenile possession of smoking products will remain separate under
section 17-1 adopting the state statutes prohibiting possession of cigarettes and tobacco
products by juveniles and 17-1.3 which was created in 2019 to prohibit juvenile possession of
electronic smoking devices. Staff is proposing to modify the title of Section 17-1.3 to indicate
that it deals with regulations of minors for purposes of clarity,but the content of that
ordinance will remain the same.
FISCAL IMPACT
The emphasis for this ordinance is compliance and not on revenue, therefore, no or very limited
fiscal impact is anticipated.
Res ectfully Submitted, Approved:
L Lorenson Mark A. Rohloff
City Attorney City Manager
ot
Amouds:A
y den Hogen
Assistant City Attorney
City Hall,215 Church Avenue P.O.Box 1130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
V Smoke-Free Winnebago Count
Public Health
�°fe t gram°te- °iOCPOr Protecting our health by incorporating e-cigarettes
Winnebago County
Health Department into smoke-free air laws
What are e-cigarettes?
Electronic cigarettes (e-cigarettes) are devices that can be used to simulate smoking and they produce an
aerosol of nicotine and/or other substances. The e-cigarette aerosol that users inhale and exhale can expose
both the user and those around them to other harmful substances, including heavy metals,volatile organic
compounds, and ultrafine particles that can be inhaled deep into the lungs. Using an e-cigarette is sometimes
called "vaping" and e-cigarettes are commonly called e-cigs, e-hookahs, vape pens, electronic nicotine delivery
systems(ENDS), electronic vapor products, mods, vapes, tanks, and the list goes on. These devices can be used
to deliver nicotine, marijuana, and other drugs.'
Tanks& Mods Pechargeable Disposable
-�s
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E-cigarettes are not safe
Little is known about the safety or efficacy of e-cigarettes as they have not been approved by the Federal Drug
Administration (FDA) and are not currently regulated. Since they're not regulated, e-cigarette ingredients are
not tested for safety and manufacturers do not have to list their ingredients or ensure products are accurately
labeled. It is difficult for consumers to know what e-cigarette products contain. For example, some e-cigarettes
marketed as containing zero percent nicotine have been found to contain nicotine.' Because of the lack of
clinical research on e-cigarettes, many public health organizations and policymakers are concerned about their
safety and health impact on users.
Why is this issue important?
On December 18, 2018,the U.S. Surgeon General declared that e-cigarette use among youth is an epidemic and
that aggressive steps must be taken to protect our children from nicotine addiction and other associated health
risks caused by e-cigarettes." In 2019,the Wisconsin State Health Officer issued a public health advisory on e-
cigarettes due to the alarming statistics on current use among youth in Wisconsin.!"A growing number of state
and local governments have taken steps to regulate the sale, marketing and use of e-cigarettes to protect the
Page 1 of 3
Last updated:1/31/2020
health of users, reduce youth initiation to nicotine and tobacco products, and promote enforcement of smoke-
free laws. As of December 20, 2019, it is illegal for anyone under the age of 21 to purchase tobacco products,
including e-cigarettes, across the United States. Starting on February 6, 2020, it will be illegal to manufacture,
distribute, or sell flavored cartridge-based e-cigarettes (ex.Juul pods)with the exception of tobacco or menthol
flavored cartridges. As of January 31, 2020,the Wisconsin Department of Health Services and local health
departments are tracking 105 confirmed and probable cases and investigating 3 more cases of individuals
throughout Wisconsin counties with severe lung disease who all reported recent vaping.`
Key Statistics
• Commercial tobacco use is the single most preventable cause of death in the U.S."
• Tobacco costs Wisconsin $4.7 billion in health care and lost
productivity annually.`
• More than 7,700 Wisconsinites die from tobacco use or exposure
each year." 2 V
• In Wisconsin, 96%of middle schoolers say they probably wouldn't try 9
�/
an e-cigarette if it wasn't flavored.vl" of Winnebago County high
• Current e-cigarette use among Wisconsin high school students school students reported
increased 154% between 2014 and 2018. using e-cigarettes in 2018
• Cigarette smoking among Winnebago County high school students is
at an all-time low(9%), but e-cigarette use continues to rise. E-
cigarette use has increased at an alarming rate from 21%of high
school students in 2016 to 29%in 2018.'X
• E-cigarette use among students earning less than a "B" average is
significantly higher than students earning a "B" average or better.'X
Health Risks
These electronic vapor products are so new, science hasn't had enough time to study all of the health risks or
understand what long-term use can do to your body. So far,we know e-cigarettes are associated with the
following health risks:
• Most e-cigarettes contain nicotine, a potent chemical compound that is highly addictive and has been
proven to be harmful to the adolescent brain.X
• The industry's most popular e-cigarette pod contains as much nicotine as 20 cigarettes.X
• Ingesting the nicotine in e-liquids can cause vomiting, confusion, cardiac arrhythmia, coma, and death.X
• Teens who use e-cigarettes are three times as likely to become cigarette smokers. The use of any non-
cigarette tobacco or other nicotine product, including e-cigarettes, predicts smoking cigarettes one year
later.X
• E-cigarette aerosol can contain potentially harmful chemicals, including heavy metals like nickel, tin, and
lead, volatile organic compounds, ultrafine particles, formaldehyde, and other cancer-causing
chemicals.'-X
• The aerosol that users inhale and exhale from e-cigarettes can potentially expose both themselves and
bystanders to these harmful chemicals."
• Two chemicals found in many e-cigarette flavors—diacetyl and 2,3-pentanedione—have been shown to
cause irreparable lung disease.X
• Aerosols contain super fine particles that can irritate the eyes,throat, and lungs.X
Page 2 of 3
Last updated: 2/12/2020
• E-cigarette devices have been known to explode, causing severe injuries.X
What is in e-cigarette aerosol?
WW
Solutions: What can we do about this?
• Update definitions in local county and municipality smoke-free workplace ordinances to include e-
cigarettes and vapor products.
• Implement strategies to curb e-cigarette advertising and marketing that appeal to youth.
• Implement strategies to reduce youth access to flavored tobacco products.
• Educate the community on the dangerous levels of nicotine and other chemicals in these products.
• Provide retailer education around compliance to ensure these products are not being sold to youth.
Contact Information
Niki Euhardy Sarahjean Schluechtermann
Policy& Equity Coordinator Community Health Strategist
neuhardv@co.winnebago.wi.us sschluechtermann@co.winnebago.wi.us
920-232-3362 920-232-3013
References
CDC.About Electronic Cigarettes(E-Cigarettes).2018.https://www.cdc.gov/tobacco/basic information/e-cigarettes/about-e-
cigarettes.html
"Surgeon General's Advisory on E-Cigarette Use among Youth.2018. https://e-cigarettes.surgeongenera1.9ov/documents/surgeon-
generals-advisory-on-e-cigarette-use-among-youth-2018.pdf
"'WI DHS Public Health Advisory.2019.https://www.dhs.wisconsin.gov/tobacco/advisory.htm
"'Outbreaks in Wisconsin.2020.https://www.dhs.wisconsin.gov/outbreaks/index.htm
"CDC.Burden of Tobacco Use in the U.S.2019.https://www.cdc.gov/tobacco/campaign/tips/resources/data/cigarette-smoking-in-
united-states.html
"'Educational Advocacy Toolkit. https://tobwis.org/toolkits/educational-advocacy/
""Healthy Wisconsin,Tobacco.https://healthy.wisconsin.gov/content/tobacco
""'WI DHS Tobacco is Changing:Understand the Issues.2019. https://www.dhs.wisconsin.gov/tobaccoischanging/know-issues.htm
'X Winnebago County Youth Risk Behavior Survey.2018.
X WI DHS Tobacco is Changing: Know the Products.2019. https://www.dhs.wisconsin.gov/tobaccoischanging/know-products.htm
Page 3 of 3
Last updated: 2/12/2020
Section 17-10 REGULATION OF SMOKING,TOBACCO,AND OTHER PRODUCTS
(A) Adoption of State Law: Except as otherwise specifically provided,all provisions of Wis.Stat.
§ 101.123 describing and defining the statewide smoking ban is hereby adopted and by
reference and made a part of this Code as if fully set forth herein. To effect the legislative
intent that regulation of smoking is a matter of statewide concern, it is the intention of this
ordinance to include within such references all provisions of Chapter Wis. Stat. § 101.123 in
effect at the time of adoption of this section together with any applicable prior revisions and
all future recodifications, renumberings and amendments unless otherwise expressly
provided in such references.
(B) Definitions: For purposes of enforcing this ordinance in the City of Oshkosh, the following
definition of"Smoking" shall apply and shall supersede the definition found in Wis. Stat. §
101.123:
"Smoking" shall meaning burning;holding;carrying;or inhaling or exhaling
smoke, mist, aerosol,or vapor from;any of the following items with the ability to
contain tobacco,nicotine, or plant products:
1) A lighted or heated cigarette
2) A lighted or heated cigar
3) A lighted or heated pipe
4) An electronic smoking device(as defined in Section 17-1.3),except that
persons may hold or carry an electronic smoking device as long as it is
not being used to create smoke,mist, aerosol or vapor in any manner or
form.
5) Any other lighted or heated smoking equipment
(C) Prohibited Conduct: Any act required to be performed or prohibited by Wis.Stat.§101.123
is required or prohibited by this ordinance, subject to the revised definition of"smoking"
contained in subsection(B)above.
(D) Prohibited Conduct: Smoking at the Oshkosh Transit Center located at 110 Pearl Avenue
or in any vehicle owned or leased by the City of Oshkosh is prohibited.
(E) Prohibited Conduct: No person shall chew and/or smoke tobacco products in a school
building or on school grounds,nor shall any person possess or attempt to possess an
Electronic Smoking Device(as defined in Section 17-1.3)in a school building or on school
grounds.
(D) Penalty and Enforcement: Any person convicted of a violation of this Ordinance shall
forfeit an amount not less than$100.00 nor more than$250.00. The City of Oshkosh Police
Department shall be the enforcement agency of this Ordinance. A court of competent
jurisdiction may impose any alternative penalty as permitted by law.
SECTION 17-46 PENALTIES-ADULT
(B) A forfeiture of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars
($500.00), together with the costs of prosecution, and in default of payment thereof by
suspension of operator's license for a period not exceeding 60 months or imprisonment for
not exceeding ninety(90)days for a violation of any of the following:
Section,-4-7�, 17-17(B)
SECTION 17-47 PENALTIES-JUVENILE
(G) A forfeiture of not less than Twenty-five Dollars ($25.00) for a violation of any of the
following:
Section''"��; 17-17; 17-19; 17-37;and 17-1 adopting§254.92 Wis.Stats.
Section 17-1.3 REGULATION OF ELECTRONIC SMOKING DEVICES WITH
MINORS
SECTION 17-18 REGULATIONS OF UNAUTHORIZED PERSONS ON SCHOOL
GROUNDS
gr-ounds, nor- sl4all an�per-son possess or- attempt to possess an Qec-tr-oniE
Smoking -
(as Ele fi e in Se-too , 47 2); a sl.l,00 b o la;„n. sc-h o g „ate