Black River Falls officials have at least temporarily halted moving ahead with restrictions on indoor electronic cigarette use after the proposal drew ire from tavern league officials.
Tavern league representatives told the city council last week that it’s beyond its legal authority to expand the indoor smoking restriction to include e-cigarettes, and the council opted to table adopting the ordinance until further research is conducted.
“By expanding the definition of ‘smoking’ beyond what is in current state law, the city of Black River Falls is exceeding the purpose and scope of the statewide ban,” attorney Mike
Wittenwyler wrote in a letter to the tavern league that was presented to the council. “Moreover, it does not protect the health and comfort of the public.
“If adopted, the municipal ordinance would conflict with state law and surpass the grant of local authority to regulate smoking under state law.”
City Attorney Dan Diehn said after the meeting he doesn’t believe the legal opinion in the letter is accurate and noted local municipalities have the authority to be more – but not less – restrictive than state laws.
He plans to author a memo to the council outlining the city’s legal position, and the proposed ordinance will be put on a future meeting agenda for consideration.
“I don’t think that the position outlined in that letter is accurate. I think that the smoking ordinance specifically has language that allows local municipalities to be more restrictive than the state law – just not less restrictive,” Diehn said. “What I plan to do is put together my memo basically outlining what I believe the appropriate legal position of the city is and then we will basically leave it up to the council to see if it’s something they want to pursue or if they’re not inclined.”
Alderperson Tony Chojnacki raised the idea of adding e-cigarettes to the indoor smoking ban earlier this year, saying he supports the electronic devices being treated the same as regular tobacco cigarettes in the local ordinance.
He previously said he began contemplating the issue after hearing that a BRF taxi driver was cited for smoking in his vehicle but later argued in court he was using an e-cigarette and therefore was wrongfully cited.
“My concern was enforcement,” Chojnacki explained to Jackson County Tavern League members at last week’s council meeting before suggesting the ordinance could be temporarily tabled.
“My main reason was for enforcement.”
E-cigarettes, also sometimes referred to as vape pens, are battery-powered devices that simulate smoking by vaporizing a liquid solution and emitting aerosol that resembles smoke. Public health officials say the devices contain more than just water vapor and can contain nicotine and other harmful ingredients.
The devices currently aren’t included under BRF’s indoor smoking ban ordinance, which mimics the state law enacted four years ago that bans smoking in indoor areas, including bars, taverns and restaurants.
Black River Falls resident and attorney Ken Artis, who was at last week’s meeting, said restrictions on smoking stem partly from concerns about nicotine, which e-cigarettes contain.
“These are loaded with nicotine,” he said. “It’s an obvious public health problem.”
Alderperson Pete Olson said he’d like to see the city wait to act on the ordinance until further legal research is conducted. He also said he could see restrictions on e-cigarettes on city property and vehicles but had concerns about impacts to private business.
“I don’t think we should worry about that right now,” he said.
Jerel Gunning, a member of the tavern league, asked the city to keep the organization informed of the process as it moves forward.
“All we ask is that we stay involved as to what proceeds or doesn’t proceed,” he said.
The council voted 7-0 to table the ordinance until a later meeting.