AB253: Bill Text

2009 - 2010 LEGISLATURE

2009 Assembly BILL 253

May 1, 2009 - Introduced by Representatives Richards, A. Ott, Seidel, Zigmunt, Milroy, Benedict, Parisi, Berceau, Black, Roys, Soletski, Gottlieb, Clark, Bernard Schaber, Mursau, Toles, Hilgenberg, Cullen, Sinicki, Townsend, Pope-Roberts, Smith, Pasch, Hintz, Spanbauer and Montgomery, cosponsored by Senators Risser, Ellis, Jauch, Miller, Darling, Robson and Coggs. Referred to Committee on Health and Healthcare Reform.

AB253,2,8 An Act to repeal 101.123 (1) (am), 101.123 (1) (bg), 101.123 (1) (bm), 101.123 (1) (br), 101.123 (1) (c), 101.123 (1) (dg), 101.123 (1) (gm), 101.123 (2) (a) 1., 101.123 (2) (a) 5., 101.123 (2) (a) 6., 101.123 (2) (am), 101.123 (2) (b), 101.123 (3) (a) to (gr), 101.123 (4), 101.123 (5), 101.123 (8) (b) and 101.123 (8) (c); to renumber 101.123 (1) (a), 101.123 (1) (dm) and 101.123 (2) (c); to renumber and amend 101.123 (1) (h), 101.123 (2) (a) 10., 101.123 (2) (ar), 101.123 (2) (bm), 101.123 (2) (br) and 101.123 (2) (bv); to amend 77.52 (2) (ag) 39. (intro.), 101.123 (1) (ar), 101.123 (1) (b), 101.123 (1) (d), 101.123 (1) (e), 101.123 (1) (f), 101.123 (1) (g), 101.123 (1) (i), 101.123 (2) (a) (intro.), 101.123 (3) (intro.), 101.123 (6), 101.123 (7), 165.60, 165.755 (1) (b), 302.46 (1) (a), 460.01 (5), 757.05 (1) (a) and 814.63 (1) (c); to repeal and recreate 101.123 (2) (title), 101.123 (2) (a) 4., 101.123 (2) (a) 9. and 101.123 (8) (a); and to create 101.123 (1) (ab), 101.123 (1) (ac), 101.123 (1) (aj), 101.123 (1) (ak), 101.123 (1) (bn), 101.123 (1) (dj), 101.123 (1) (dn), 101.123 (1) (eg), 101.123 (1) (hm), 101.123 (1) (id), 101.123 (1) (im), 101.123 (1) (ip), 101.123 (2) (a) 1g., 101.123 (2) (a) 1m., 101.123 (2) (a) 1r., 101.123 (2) (a) 5m., 101.123 (2) (a) 5t., 101.123 (2) (a) 7m., 101.123 (2) (a) 7r., 101.123 (2) (a) 8d., 101.123 (2) (a) 8g., 101.123 (2) (d) (intro.), 101.123 (2) (d) 5., 101.123 (2) (dm), 101.123 (2) (e), 101.123 (2m), 101.123 (3) (h), 101.123 (3) (i), 101.123 (3) (j), 101.123 (3) (k), 101.123 (3m), 101.123 (4m) (title), 101.123 (8) (d) and 101.123 (8) (e) of the statutes; relating to: prohibiting smoking in indoor areas, in sports arenas, in public conveyances, and at certain outdoor locations and providing a penalty.

Analysis by the Legislative Reference Bureau

Current law prohibits smoking in mass transit vehicles and specific enclosed, indoor locations, including the following:

1. Inpatient health care facilities, such as community based-residential facilities and nursing homes.

2. Prisons and jails.

3. Retail establishments.

4. Restaurants.

5. Governmental buildings.

Except for hospitals, school buses, day care centers where children are present, and a few other places, a smoking area at an indoor location may be designated by the person who is in charge of that location. For example, the person in charge of a business is the owner of the business and the person in charge of a prison is the state secretary of corrections.

Under the bill, smoking areas at indoor locations may no longer be designated resulting in a complete ban on indoor smoking at those locations with exceptions for private residences, a limited number of designated rooms in lodging establishments, and certain residence rooms in assisted living facilities. In addition to the specified indoor locations listed under current law, the bill prohibits smoking in any public place or place of employment. The bill defines "a place of employment" to be any indoor place that employees normally frequent during the course of employment, such as an office, a work area, an employee lounge, a restroom, a conference room, a meeting room, a classroom, or a hallway. The bill also defines a "public place" to be a place that is open to the public, regardless of whether a fee is charged or a place to which the public has lawful access or may be invited. In addition, the bill defines an "enclosed place" for purposes of determining at what locations smoking is prohibited. An enclosed place must have a roof and at least two walls.

Current law provides exemptions from the prohibition against smoking for bowling centers, taverns, halls used for private functions, rooms in which the main occupants are smokers, and areas of facilities that are used to manufacture or assemble goods, products, or merchandise. This bill eliminates these exemptions.

Current law allows smoking in any restaurant that has a seating capacity of 50 individuals or less, or that holds a liquor license, if the sale of alcohol beverages accounts for more than 50 percent of the restaurant's receipts. This bill prohibits smoking in any restaurant regardless of seating capacity or the number of liquor sale receipts.

Current law allows smoking in any tavern holding a "Class B" intoxicating liquor license or Class "B" fermented malt beverages license issued by a municipality. This bill prohibits smoking in any tavern. The bill also specifically prohibits smoking in private clubs.

Under current law, smoking is prohibited outside in limited instances. These include within a certain distance of the state capitol building, dormitories that are owned or operated by the University of Wisconsin, and day care centers where children are present. This bill makes no changes to these specific prohibitions, but adds a general prohibition against smoking outside within less than a reasonable distance from any entrance into a building, an openable window, or a ventilation opening that draws air inside.

The bill also specifically prohibits smoking in sports arenas and bus shelters, regardless of whether they meet the definition of "enclosed place."

Current law does not limit the authority of any county, city, village, or town to enact smoking ordinances that protect the public's health and comfort. This bill makes no change in this provision.

This bill requires that persons in charge of places where smoking is prohibited enforce the prohibitions by taking certain steps to ensure compliance, such as asking a person who is smoking to leave and refusing to serve the person if the place is a restaurant, tavern, or private club. This bill imposes forfeitures on persons in charge who fail to take these measures.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB253, s. 1 Section 1. 77.52 (2) (ag) 39. (intro.) of the statutes is amended to read:

AB253,4,2 77.52 (2) (ag) 39. (intro.) Equipment in offices, business facilities, schools, and hospitals but not in residential facilities including personal residences, apartments, long-term care facilities, as defined under s. 16.009 (1) (em), state institutions, as defined under s. 101.123 (1) (i) prisons, mental health institutes, as defined in s. 51.01 (12), centers for the developmentally disabled, as defined in s. 51.01 (3), Type 1 juvenile correctional facilities, as defined in s. 938.02 (19), or similar facilities including, by way of illustration but not of limitation, all of the following:

AB253, s. 2 Section 2. 101.123 (1) (a) of the statutes is renumbered 101.123 (1) (ae).

AB253, s. 3 Section 3. 101.123 (1) (ab) of the statutes is created to read:

AB253,4,7 101.123 (1) (ab) "Assisted living facility" means a community-based residential facility, as defined in s. 50.01 (1g), a residential care apartment complex, as defined in s. 50.01 (1d), or an adult family home, as defined in s. 50.01 (1) (b).

AB253, s. 4 Section 4. 101.123 (1) (ac) of the statutes is created to read:

AB253,4,9 101.123 (1) (ac) "Correctional facility" means any of the following:

AB253,4,13 1. A state prison, as defined or named in s. 302.01, except a correctional institution under s. 301.046 (1) or 301.048 (4) (b) if the institution is the prisoner's place of residence and no one is employed there to ensure the prisoner's incarceration.

AB253,4,18 2. A juvenile detention facility, as defined in s. 938.02 (10r), or a juvenile correctional facility, as defined in s. 938.02 (10p), except a juvenile correctional facility authorized under s. 938.533 (3) (b), 938.538 (4) (b), or 938.539 (5) if the facility is a private residence in which the juvenile is placed and no one is employed there to ensure that the juvenile remains in custody.

AB253,4,21 3. A jail, as defined in s. 165.85 (2) (bg), a Huber facility under s. 303.09, a work camp under s. 303.10, a reforestation camp under s. 303.07, or a lockup facility under s. 302.30.

AB253, s. 5 Section 5. 101.123 (1) (aj) of the statutes is created to read:

AB253,4,25 101.123 (1) (aj) Notwithstanding s. 101.01 (5), "employment" means any trade, occupation, or process of manufacture or any method of carrying on such trade, occupation, or process of manufacture in which any person may be engaged.

AB253, s. 6 Section 6. 101.123 (1) (ak) of the statutes is created to read:

AB253,5,3 101.123 (1) (ak) "Enclosed place" means a structure or area that has all of the following:

AB253,5,4 1. A roof or overhead covering.

AB253,5,6 2. Two or more substantial walls, regardless of whether the walls are removed and replaced on a temporary basis.

AB253, s. 7 Section 7. 101.123 (1) (am) of the statutes is repealed.

AB253, s. 8 Section 8. 101.123 (1) (ar) of the statutes is amended to read:

AB253,5,13 101.123 (1) (ar) "Immediate vicinity of the state capitol" means the area directly adjacent to the state capitol building, as determined by rule of the department of administration. "Immediate vicinity of the state capitol" does not include any location that is more than one fathom six feet from the state capitol building.

AB253, s. 9 Section 9. 101.123 (1) (b) of the statutes is amended to read:

AB253,5,19 101.123 (1) (b) "Inpatient health care facility" means a hospital, as defined in s. 50.33 (2), a county home established under s. 49.70, a county infirmary established under s. 49.72 or a community-based residential facility or, a nursing home licensed under s. 50.03, as defined in s. 50.01 (3), a hospice, as defined in s. 50.90 (1), a Wisconsin veteran's home under s. 45.50, or a treatment facility.

AB253, s. 10 Section 10. 101.123 (1) (bg) of the statutes is repealed.

AB253, s. 11 Section 11. 101.123 (1) (bm) of the statutes is repealed.

AB253, s. 12 Section 12. 101.123 (1) (bn) of the statutes is created to read:

AB253,5,23 101.123 (1) (bn) "Lodging establishment" means any of the following:

AB253,5,24 1. A bed and breakfast establishment, as defined in s. 254.61 (1).

AB253,5,25 2. A hotel, as defined in s. 254.61 (3).

AB253,6,1 3. A tourist rooming house, as defined in s. 254.61 (6).

AB253, s. 13 Section 13. 101.123 (1) (br) of the statutes is repealed.

AB253, s. 14 Section 14. 101.123 (1) (c) of the statutes is repealed.

AB253, s. 15 Section 15. 101.123 (1) (d) of the statutes is amended to read:

AB253,6,8 101.123 (1) (d) "Person in charge" means the person , or his or her agent, who ultimately controls, governs or directs the activities aboard a public conveyance or within a place at a location where smoking is prohibited or regulated under this section, regardless of the person's status as owner or lessee.

AB253, s. 16 Section 16. 101.123 (1) (dg) of the statutes is repealed.

AB253, s. 17 Section 17. 101.123 (1) (dj) of the statutes is created to read:

AB253,6,15 101.123 (1) (dj) Notwithstanding s. 101.01 (11), "place of employment" means any enclosed place that employees normally frequent during the course of employment, including an office, a work area, an elevator, an employee lounge, a restroom, a conference room, a meeting room, a classroom, a hallway, a stairway, a lobby, a common area, a vehicle, or an employee cafeteria.

AB253, s. 18 Section 18. 101.123 (1) (dm) of the statutes is renumbered 77.51 (11m).

AB253, s. 19 Section 19. 101.123 (1) (dn) of the statutes is created to read:

AB253,6,20 101.123 (1) (dn) "Private club" means a facility used by an organization that limits its membership and is organized for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose.

AB253, s. 20 Section 20. 101.123 (1) (e) of the statutes is amended to read:

AB253,7,2 101.123 (1) (e) "Public conveyance" means a mass transit vehicles vehicle as defined by in s. 340.01 (28m) and, a school buses bus as defined by in s. 340.01 (56), or any other device by which persons are transported, for hire, on a highway or by rail, water, air, or guidewire within this state, but does not include such a device while providing transportation in interstate commerce.

AB253, s. 21 Section 21. 101.123 (1) (eg) of the statutes is created to read:

AB253,7,6 101.123 (1) (eg) "Public place" means any enclosed place that is open to the public, regardless of whether a fee is charged or a place to which the public has lawful access or may be invited.

AB253, s. 22 Section 22. 101.123 (1) (f) of the statutes is amended to read:

AB253,7,9 101.123 (1) (f) "Restaurant" means an establishment as defined in s. 254.61 (5) with a seating capacity of more than 50 persons.

AB253, s. 23 Section 23. 101.123 (1) (g) of the statutes is amended to read:

AB253,7,14 101.123 (1) (g) "Retail establishment" means any store or shop in which retail sales is the principal business conducted, except a tavern operating under a "Class B" intoxicating liquor license or Class "B" fermented malt beverages license, and except bowling centers.

AB253, s. 24 Section 24. 101.123 (1) (gm) of the statutes is repealed.

AB253, s. 25 Section 25. 101.123 (1) (h) of the statutes is renumbered 101.123 (1) (h) (intro.) and amended to read:

AB253,7,19 101.123 (1) (h) (intro.) "Smoking" means carrying a lighted burning or holding, or inhaling or exhaling smoke from, any of the following items containing tobacco:

AB253,7,20 1. A lighted cigar,.

AB253,7,21 2. A lighted cigarette,.

AB253,7,22 3. A lighted pipe or any.

AB253,7,23 4. Any other lighted smoking equipment.

AB253, s. 26 Section 26. 101.123 (1) (hm) of the statutes is created to read:

AB253,8,3 101.123 (1) (hm) "Sports arena" means any stadium, pavilion, gymnasium, swimming pool, skating rink, bowling center, or other building where spectator sporting events are held.

AB253, s. 27 Section 27. 101.123 (1) (i) of the statutes is amended to read:

AB253,8,8 101.123 (1) (i) "State institution" means a prison, a mental health institute, as defined in s. 51.01 (12) or, a center for the developmentally disabled, as defined in s. 51.01 (3), or a secure mental health facility at which persons are committed under s. 980.06.

AB253, s. 28 Section 28. 101.123 (1) (id) of the statutes is created to read:

AB253,8,12 101.123 (1) (id) "Substantial wall" means a wall where at least 25 percent of the surface area of the wall is not part of an opening that may be used to allow air in from the outside.

AB253, s. 29 Section 29. 101.123 (1) (im) of the statutes is created to read:

AB253,8,16 101.123 (1) (im) "Tavern" means an establishment, other than a restaurant, that holds a "Class B" intoxicating liquor license or Class "B" fermented malt beverages license.