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HomeMy WebLinkAbout09. 20-99 FEBRUARY 25, 2020 MARCH 10, 2020 20-90 20-99 ORDINANCE FIRST READING SECOND READING (CARRIED 6-0 LOST LAID OVER WITHDRAWN ) PURPOSE: ADOPT STATE CLEAN INDOOR AIR LAW AND REGULATE ELECTRONIC SMOKING DEVICES INITIATED BY: CITY ADMINISTRATION A GENERAL ORDINANCE OF THE CITY OF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 That Section 17-18(E)of the City of Oshkosh Municipal Code is hereby repealed.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 MARCH 10, 2020 20-90 20-99 ORDINANCE FIRST READING SECOND READING CONT'D SECTION 5. Publication Notice Please take notice that the City of Oshkosh enacted ordinance #20-99 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. XFr tea.. CITY Ot Oshkosh TO: Mayor and Members of the Common Council FROM: Lynn Lorenson, City Attorne — Amy VandenHogen DATE: March 5, 2020 RE: Ordinance to Regulate Electronic Cigarettes Attached is a communication from Sarahjean Schluechtermann from the Winnebago County Health Department relating to juvenile vaping ordinances. We have explained to Ms. Schluechermann that the current ordinance up for consideration by Council is not focused on juvenile possession or use of vaping products. The purpose of the proposed ordinance is to limit vaping in those same areas where smoking is limited by virtue of the indoor air laws. The proposed ordinance only makes changes to the ordinances dealing with juvenile possession and use as necessary to bring those provisions in line with new proposed ordinance.Should Council wish to take up the issue of repealing ordinance provisions prohibiting juvenile use and possession of tobacco and vaping materials as suggested by Ms. Schluechtermann, it would be more appropriate to bring a new ordinance for this purpose rather than to amend the current proposal which only deals with this issue tangentially. Council could then appropriately notice that issue specifically for discussion and action. In addition to the communication from Ms.Schluechtermann, we received a question regarding the possibility of exempting vaping shops from the proposed ordinance regulating electronic cigarettes. I believe that Appleton and Neenah considered an exemption for vaping stores when they passed their ordinances, essentially giving persons the ability to "try" the devices in a vaping store before purchase. While the Appleton code includes this provision, Neenah appears to have rejected this exemption. The draft ordinance adopts the provisions of Wisconsin's Indoor Clean Air Act and use of these devices would be prohibited anywhere that use of cigarettes, pipes and other smoking devices are prohibited. The ordinance as proposed does not create an exemption from the ordinance and use of electronic cigarettes would be prohibited within vaping stores as it would be in any other type of commercial establishment such as a drug store, gas station or other retail store. City Hall,215 Church Avenue P.O. Box 1130 Oshkosh,WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us There is a limited exception for smoking cigars and pipes within the state law limited to certain tobacco bars and retailers in existence prior to 2009. Because these exceptions are limited to cigars and pipes, even these very limited exceptions would not apply to vaping devices under the ordinance. Appleton's ordinance contains exemptions for "Retail Tobacco Stores" and "Retail electronic delivery device stores" that are in existence on June 11, 2019". Neither of these terms appear to be defined with regard to whether stores require a certain percentage of tobacco or electronic delivery device sales or are solely dedicated to sales of those products. If any Council member would like to consider an amendment to permit vaping within a vaping store, an amendment to the draft ordinance would be required. In addition, unless the intent of the amendment would be to allow vaping within any premises that carries and sells vaping equipment or supplies, the specific terms of the exemption including,but not necessarily limited to, the defining of vaping store or similar term would need to be included. Because an amendment would be fairly specific to the particular intent in this case, if there is interest in proposing such an amendment, please feel free to contact our office before the meeting to allow us the best opportunity to address this issue. City Hall,215 Church Avenue P.O. Box 1130 Oshkosh,WI 54903-1130 920.236.5000 hitp://www.ci.oshkosh.wi.us Lorenson, Lynn From: Schluechtermann, Sarahjean <SSchluechtermann@co.winnebago.wi.us> Sent Monday, March 2, 2020 4:18 PM To: Lorenson, Lynn;VandenHogen, Amy Subject Oshkosh Vaping Ordinance Follow-Up Attachments: PUPinSmoke_FINAL_2019-04-17.pdf Hi Lynn &Amy Thank you both for your work on these ordinances and your role in making Oshkosh a healthier community. Everyone deserves to have access to clean air, and incorporating e-cigarettes in smoking policies/definitions is a key part of this. Thank you for following back up with me last Tuesday before the City Council meeting. It was a really helpful explanation of the changes that are being proposed. I really appreciate you taking the time out of the end of your day to provide me the background information. One thing to know about my work-whenever local ordinance amendments related to smoking/vaping are proposed, I have to share those with the state tobacco program to get their thoughts on the ordinance. Keeping the state program up-to-date is part of the tobacco grant duties related to my position. I shared the proposed amendments with the state program and wanted to make sure I shared their thoughts and feelings with you all as well. The Wisconsin tobacco program is moving towards being more focused on equity and tobacco-related disparities. When new ordinances or proposed amendments are brought forth,we are using an equity lens to get a better understanding of how the ordinance may affect disparity populations and therefore the community. The state tobacco program feels that policies related to punishing youth for purchasing, using, or possessing (PUP laws) tobacco/vaping products are inequitable and ineffective and therefore feel that fining youth for these actions is not public health best practice. Listing a few hours of community service instead or as another option to the fine can meet public health best practice. Putting the responsibility on the retailer, limiting advertising, restricting flavored products, and moving all products behind the counter are some best practice policies that the tobacco prevention world tends to focus on and are the preferred focus. Big Tobacco has targeted youth for decades and PUP laws shift the responsibility to the youth who are victims of these targeted marketing tactics for a deadly and highly addictive product. I have attached a document related to PUP laws. Thank you for your time and work on these ordinances and for considering the information that I have provided you. If you have any questions, please let me know. 5arahjean Schluechtermann, Mitt Community Health Strategist Winnebago County Health Department 920-232-3013 sschluechtermann@co.winnebago.wi.us www.co.winnebago.wi.us/health 1 • ct;ange��a PUP i n Smoke Solutions Why Youth Tobacco Possession and Use Penalties Are Ineffective and Inequitable ,:. a s -'' Sxv'?R? , :ivy, er a' „q.t.!' 7, '.=f �y, •2y • • • What Are PUP Laws? The early 1990s saw a large increase in laws prohibiting the possession, " ' ' ' "-` use, and purchase of tobacco products by minors— also known as PUP laws. In 1988, only 6 states prohibited possession of cigarettes by minors. By 1995, that number had tripled, and by 2001, 32 states prohibited 1HHHHTLaivalirohili%ttng a possession youth possession.'The numbers and trends are similar for youth use and use andp�ehase,of bacecr purchase prohibitions. Today, all 50 states and the District of Columbia products:by tnors=also known - have laws restricting the sale of tobacco to minors, and all but 72 also have as PUPIaws_=are ineffective as PUP laws.' deterrents to youth smoking atsd: Many states adopted PUP laws in response to escalating tobacco use are.o£ten enforced triegnztab$y Thrs by youth and a growing body of evidence on tobacco related harms. fact sheet ptai riles tobacet7 e�sutzol However, the rise in PUP laws is also linked to Big Tobaccos response to advocates withellecti�e atterirah es the Synar amendment,°which required states to enact and enforce laws bestpractices,ancrespurces;; prohibiting distribution and sale of tobacco products to minors. As states imposed restrictions on tobacco retail sales, the tobacco industry and retail merchants associations pressured lawmakers to penalize buyers and users as well as vendors 5.6 Advocates for PUP laws hoped that the laws would play a central role in a multi-pronged approach to reducing youth initiation and smoking rates, but studies show little evidence of a deterrent effect over time. changelabsolutions.orgltobacco-control - _ April2019 PUP in Smoke Enforcement of PUP Laws PUP Laws Are Ineffective and Big Tobacco targeted youth for decades, seeking to Inequitable create new generations of customers addicted to its ChangeLab Solutions does not include youth PUP products. Instead of holding industry and retailers provisions in its model ordinances because they are accountable, PUP laws shift responsibility to their both ineffective and inequitable. PUP laws are unlikely victims —young consumers who are purchasing to reduce youth initiation and smoking prevalence and using a deadly and highly addictive product. at the population level. Some researchers suggest Enforcement mechanisms vary by jurisdiction, and that they are counterproductive, actually increasing penalties range from education and community service smoking rates among youth who seek to engage in to fines and incarceration. Many jurisdictions suspend behavior deemed deviant or behavior associated with (or refuse to issue) driver's licenses for PUP law adulthood. violations. Some jurisdictions require participation in smoking cessation or tobacco education classes, which PUP laws are inequitable because they are chronically underfunded and often insufficient to disproportionately affect youth of color. Youth of meet public health goals. Some jurisdictions even use color—as well as LGBT youth,youth with disabilities, school suspension as an enforcement tool. and boys—are more likely to smoke because these populations have been targeted via advertising and For a policy to have a lasting deterrent effect, a potential retailer placement by the tobacco industrylo,ll In offender must believe there is a high likelihood of addition to carrying a higher burden of tobacco-related detection and resulting punishment'There is no harm, African American and Hispanic youth report systematic surveillance of PUP laws, but existing data higher citation rates than their white peers even after show that PUP laws are inconsistently and selectively accounting for smoking frequency.1'These findings enforced. Furthermore, data show that PUP laws mirror disparities recorded throughout criminal justice are 4 times more likely to be enforced than the laws and school disciplinary systems. prohibiting retailers from selling tobacco products to youth in the first place.' Finally, psychologists have Enforcement of PUP laws also disproportionately found that punishment is not an optimal strategy for affects youth from low-income communities. High behavior change—a finding that is even more relevant smoking rates are correlated with low income, and when the behavior in question is addictive.' there are more tobacco retailers and advertisements in less affluent areas." Consequently, low-income youth Cilia are more likely to smoke and to be affected by PUP 1. ,,, 4 ge "`" laws. A child with a job, a single parent, or 2 parents '- , toi t i ,. who work outside the home may struggle to complete s. : - ;R, community service or pay fines.If a violation results in :. d suspension of a driver's license, travel to school, a job, """ or a community service site becomes more difficult. A e s li __ "' child who is unable to complete community service or <" ' pay fines may be subject to escalating penalties that are increasingly difficult to resolve. Further, the resulting . sis stress takes a toll on health and increases the likelihood of risky behaviors or involvement with juvenile justice, mental health, substance use, or other systems.14 Se i ay ki ° v * �,.�.--vosr „, ,� PUP laws stigmatize youth who smoke,yet smoking ,_, ,--� �'� j`, is an addictive behavior promoted by a billion-dollar �' :,�� ; industry that directly and deliberately targets them. �. . Stigma is not an effective public health intervention, l owls CaLfwnia Department.aE Public H-i a 4424 changelabsolutions.orgttobacco-control 2 PUP in Smoke and it may keep kids from seeking cessation treatment Limits on advertising or education. Problematic behaviors such as smoking Although legal considerations make it difficult to may be more likely to continue in the face of eliminate all tobacco advertisements, local governments punishment(as opposed to cessation interventions) can effectively reduce youth exposure to Big Tobacco's because punishment provides an incentive to hide the advertising by limiting the amount of window signage behavior and protect those engaged in it. In addition, of any kind. long-term behavior correction is more likely to occur when those addressing the behavior are loved or trusted; Minimum pricing and pack size thus, parents and teachers—not law enforcement—are Youth are particularly price-sensitive, and studies best positioned to deter smoking by youth." show that price controls reduce smoking prevalence and initiation. Combining policies that require both Finally, PUP laws may divert law enforcement and a minimum pack size and a minimum price for all policy resources away from more effective strategies, tobacco products can make items that are particularly some of which are described in the next section.16 appealing to youth (such as single flavored cigarillos) Alternatives and Best Practices more expensive and less accessible to youth. Jurisdictions that wish to curb youth smoking have a Restrictions on flavored tobacco products wide variety of effective, equitable options. ChangeLab Most young people report that they used flavored Solutions offers model policies that incorporate many of products when they started smoking. Restricting these provisions: flavored tobacco products to adult-only stores or Retailer-focused policies, including compliance Prohibiting them entirely can reduce youth initiation checks with youth decoys of smoking. Comprehensive tobacco retailer licensing(TRL) policies imposed by states or local jurisdictions place In 2014, the City of Santa Cruz adopted Ordinance responsibility on retailers rather than young consumers. 2014-04,which prohibited the use of e-cigarettes in With appropriate funding and enforcement, TRL smokefree areas,the sale of e-cigarettes to minors, policies have proven more effective than PUP laws in and the possession or use of e-cigarettes by minors. reducing youth initiation and ongoing tobacco use. Four years later, the City of Santa Cruz adopted Ideally, enforcement should include regular compliance Ordinance 2018-19, repealing youth possession and checks that use youth decoys. use penalties and adopting robust prohibitions of flavored tobacco products in their place. Banning the California's Department of Justice recently awarded sale of flavored tobacco products is an effective and a new wave of tobacco control grants to combat equitable strategy that can reduce youth initiation illegal sale and marketing of cigarettes and other and tobacco use rates. tobacco products to minors.While these funds can be used in different ways, Oroville City Elementary School District's approach aligns with Cessation resources our recommended best practices.The district will Finally, cessation and tobacco education programs are use grant funds to implement a tobacco prevention often under-resourced and tailored for adults. Programs for students in grades 4 8 and to conduct that are sufficiently funded,youth-specific, and free of program charge are crucial elements of a comprehensive anti- retail enforcement operations near school campuses, targeting retailers who prey on youth rather than tobacco strategy aimed at youth. ' penalizing kids. changelabsolutions.org/tobacco-control 3 s Resources Stanford University's research on the -. impact of tobacco advertising ) sx _ http://tobacco.stanford.edultobacco_mainlindex.php r ' f Stanford School of Medicine's fact sheets zw and educational units on vaping https://med.Stanford.edultobaccopreventiontoolkit/E- Gigs.html "The ability to attract NEW SMOKERS and ChangeLab Solutions' Comprehensive TRL develop them into a young adult franchise Model Ordinance is keyto BRAND DEVELOPMENT." www.changelabsolutions.org/publications/model-TRL- Ordinance - Philip Morris Report, 1999 California Smokers' Helpline resources, including a mobile app and support via text message What's Next? www.nobutts.org/free-services-for-smokers-frying-to-quit ChangeLab Solutions and many tobacco control organizations agree that PUP penalties are outdated, Campaign for Tobacco-Free Kids' fact sheet misguided, and ineffective. But it's important not on youth PUP laws to replace one bad policy with another. Getting rid www.tobaccofreekids.org/assets/factsheets/0074.pdf of PUP laws could shift enforcement from police to schools. Research shows bias in school discipline practices,which disproportionately affect youth of color and low-income youth."Further, schools that primarily serve low-income youth are more likely to impose harsh punishments and use intense surveillance measures associated with higher suspension rates. These practices also have a disparate impact on students of color. For example, a black student's odds of being suspended have been found to be to 2.7 times higher than those of a white student.19 As communities and school districts begin to address increasing use of vapor and electronic smoking devices by youth, it is important to consider the equity implications of different approaches. Decisionmakers ChangeLab Solutions is a nonprofit organization that provides legal information on matters relating to public health. The legal information must ask whether policies address the inequities that provided in this document does not constitute legal advice or legal lead to different youth populations'use of tobacco representation.For legal advice,readers should consult a lawyer in their products—and whether enforcement will lead to state. equitable outcomes rather than worsening inequities. This material was made possible by fends received from Grant Number 14-10214 with the California Department of Public Health, California While youth tobacco use remains a pressing public Tobacco Control Program. health problem, public health agencies should promote ©2019 ChangeLab Solutions effective solutions that place the blame where it belongs: on the tobacco industry and retailers who sell Photos courtesy of iStockPhoto(cover),California Department of Public Health, to youth. California Tobacco Control Program(pages 2,4),and ChangeLab Solutions(page 5). changelabsolutions.orgkobacco-control 4 PUP in Smoke Notes 'Wakefield M,Giovino G.Teen penalties for tobacco possession,use,and purchase:evidence and issues. Tobacco Control. ` 2003;12(suppl 1):i6-i13. ' CA,MD,MA,NV,NJ,NY,DC. ' States without PUP laws may still have local FLIP ordinances. ' U.S.Department of Health&Human Services.About the Synar Amendment and program. wwasamhsa.gov/sonar/about.Updated • September 2017.Accessed March 5,2019. . ' Lantz PM,Jacobson PD,Warner KE,et al.Investing in youth ,., ;.. tobacco control:a review of smoking prevention and control strategies. Tobacco Control.2000;9(1):47-63. Jacobson PD,Wasserman J. Tobacco Control Laws:Implementation and Enforcement.Santa Monica,CA: RAND Corporation. -. www.randorg/pubs/monograph_reports/MR841.htmt.1997.Accessed ' March 5,2019. 'Wakefield M,Giovino G.Teen penalties for tobacco possession, "`c use,and purchase:evidence and issues. Tobacco Control. ' `. 2003;12(suppl 1):i6-i13. s Forster JL,Komro KA,Wolfson M.Survey of city ordinances and w local enforcement regarding commercial availability of tobacco to minors in Minnesota,United States. Tobacco Control. 1996;5(1):46- 51. " Volkow ND,Baler RD,Goldstein RZ.Addiction:pulling at the neural threads of social behaviors.Neuron.2011;69(4):599-602. 0100 S40. "Bach,L. Tobacco Company Marketing to Kids.Washington,DC: • g _ Campaign for Tobacco-Free Kids. WWW.tobacqfreehitir.org/assets/ - factsheets/0008.pdf.Accessed on March 5,2019. ( '!? "American Lung Association,Campaign for Tobacco-Free Kids, :Y American Cancer Society,et al.Achieving Health Equity in Tobacco 3- Control.truthinitiarize.org/sites/djoult/files/Achieving9620Health9620 Tit,' is Published December 8,2015.Accessed on March 5,2019. "Gottlieb NH,Loukas A,Cerrao M,McAlister A,Snell C,Huang f,.'i PP.Minors'tobacco possession law violations and intentions to smoke:implications for tobacco control. Tobacco Control. 2004;13(3):237. "American Lung Association,Campaign for Tobacco-Free Kids, American Cancer Society et al.Achieving Health Equity in Tobacco se- 5 'syl. Control.truthinitiative.org/sites/default/file.✓Achieving9l20Health9620 " Egaity9n20in9520Tabacca9'o20Contro19620-9620Yersion96201.pdf. 496i Published December 8,2015.Accessed on March 5,2019. "Rew L,Horner SD.Youth resilience framework for reducing health-risk behaviors in adolescents.J Pediatr Nurs.2003;18(6):379- 388. r ' , .,€ '+(" "Wakefield M,Giovino G.Teen penalties for tobacco possession, ii2 use,and purchase:evidence and issues. Tobacco Control ` �g, J ' ,,,••:'i 2003;12(suppl 1):i6 i13. .. "Wakefield NI,Giovino G.Teen penalties for tobacco possession, i sk r use,and purchase:evidence and issues. Tobacco Control. 2003;12(suppl 1):i6-i13. ''California Smokers'Helpline currently offers free alternative 't GR"' 44 methods of cessation counseling such as a text message supportit system,available at www.nobutts.org/free-services for-smokers-trying- to-quit. "Nance J. Student surveillance,racial inequalities,and implicit racial erl ', *—.ter' bias.Emory Law 2017;66(4):765-837. '"Finn JD, Servoss,TJ.Misbehavior,suspensions,and security i. measures in high school:racial/ethnic and gender differences.JAppl Res Child.2014;5(2). p�'°^p��. ierc changelabsolutions.orgltobacca-control 5 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 • 1 • 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