Thursday, May 7, 2009

Lawmakers to introduce "compromise" amendment

Key lawmakers from both houses of the Legislature announced yesterday afternoon that they reached a compromise on changes to some provisions of the smoke-free workplaces bill in order to send the bill to the floor of both houses of the Legislature for a final vote. This vote is long overdue.

To view the full text of this substitute amendment, click here.

A summary of the changes includes:

  • Date of implementation: July 5, 2010
  • Fine structure: Individuals smoking in workplaces would be fined $100-$250. A business owner’s first violation does not carry a fine, but each subsequent offense has a $100 fine.
  • Outdoor smoking: The bill says smokers have to maintain a “reasonable distance” from any smoke-free building. The bill also preempts local governments from passing ordinances making outdoor patios smoke-free. Governments can still regulate and pass smoke-free ordinances on outdoor city property such as parks and fair grounds. Individual businesses can also choose to have smoke-free patios.
  • Tobacco retailers that receive 75% or more of their income from tobacco sales are exempt.
  • Cigar bars that receive 15% or more of their income from cigar sales can have cigar smoke in their establishments, but not cigarette smoke.
  • Hotel rooms are not exempt under the new amendment.

The legislative process from here:
  • Friday May 8: The Assembly and Senate meet in executive session, without public debate, and will have a vote on AB 253 and SB 181 with the proposed amendment outlined above.
  • If passed, it will move to the organization committees in both chambers for scheduling.
  • Wednesday May 13: Target date for the bill to be up for debate in both houses. They will vote on the proposed amendment, any other amendments proposed, and finally the bill.


Ira said...

Here is what Americans for Nonsmokers’ Rights has to say about preemption. After that is a quote on Philip Morris strategy.

Preemption of local tobacco control legislation is NEVER an acceptable compromise and should always be opposed, no matter how attractive the state legislation. State level tobacco control legislation should always include explicit anti-preemption language protecting the right of local control.

"Our goal is to see some form of preemption/accommodation legislation passed in all 50 states by the end of next year. The achievement of universal preemption/accommodation is imperative…. The immediate implications for our business are clear: if our consumers have fewer opportunities to enjoy our products, they will use them less frequently and the result will be an adverse impact on our bottom line."
--Tina Walls, Philip Morris (1994)
(Bates No. 2062340066-0100,

Preemption is a provision in state (or federal) law that eliminates the power of local (or state and local) governments to regulate tobacco. Preemption is the tobacco industry's favorite legislative tactic to prevent local smokefree laws. Even with all its financial resources, Big Tobacco can't effectively fight smokefree battles everywhere at once. Rather than engage in numerous local campaigns around a state, Big Tobacco would much prefer to fight just one battle at the state legislature where its resources, i.e., lobbyists and campaign contributions, give it the best chance of blocking or weakening meaningful smokefree air legislation.

As part of the tobacco industry's quest to achieve preemption in all states, health advocates can expect to hear statements from hospitality and gambling trade associations calling for "statewide uniformity" and "avoiding a patchwork quilt of local laws." Tobacco industry efforts to strip away the rights of local policymakers remain a potent threat to smokefree air laws and could stop a local campaign before it even begins. Even when not engaged in a local public education or legislation campaign, health advocates must remain vigilant of this tobacco industry dirty trick. Tobacco allies may include preemptive language in state bills that may or may not slightly improve the state smokefree air law at the expense of stopping all future smokefree air legislative activity. Preemption of local tobacco control legislation is NEVER an acceptable compromise and should always be opposed, no matter how attractive the state legislation. State level tobacco control legislation should always include explicit anti-preemption language protecting the right of local control.

For more detailed information on preemption, visit ANR's preemption website, Protect Local Control, at

Anonymous said...

To me this is not fair at all, if a person own the building where the business is and has to pay taxes, then they should have a say in wether they will be smoke free or not, if a non-smoking does not like being there then go somewhere else like I do.

Ira said...

Last time I posted a statement from Americans for Nonsmokers’ Rights on how preemption is never acceptable even if the legislation is otherwise good. Upon reflection, I am concerned that I may have given the impression that the current legislation is otherwise good. However, SB 181 is a disaster.

Before I go into detail, here is a quote from Fighting Bob Lafollette.

“In legislation, no bread is often better than half a loaf. I believe it is usually better to be beaten and come right back the next session and make a fight for a thorough going law than to have written on the books a weak and indefinite statute. “I believe that half a loaf is fatal whenever it is accepted at the sacrifice of the basic principal to be attained. Half a loaf, as a rule dulls the appetite and destroys the keenness of interest in attaining the full loaf. A halfway measure never fairly tests the principal and may utterly discredit it. It is certain to weaken, disappoint, and dissipate public interest. Concession and compromise are almost always necessary in legislation, but they call for the most thorough and complete mastery of the principals involved. In order to fix the limit beyond which not one hair’s breadth can be yielded.”

The current proposal has many, many shortcomings. For one thing it allows for smoking right up to the entrance of workplaces, including restaurants, taverns, private clubs, and retail establishments. So we all know the smoke will enter into the establishments just as if there was a smoking room and probably more so than if there was the fictional separately ventilated smoking rooms.

Smokefree outdoor laws are growing in number in other parts of the country.

It looks like Madison’s ordinance. 23.05 is in trouble.

Prohibition of Smoking in Places of Employment
(b) Every building which is a place of employment shall have at least one entrance which is
smokefree. For buildings with fewer than four (4) entrances, no more than one entrance
may be designated as a smoking entrance. For buildings with four (4) or more entrances,
no more than 25% of all entrances may be designated as a smoking entrance.

In California, some communities are starting to ban smoking near apartments. For example there are ordinances that prohibit smoking outside the windows of nonsmoking units. Such a local ordinance will not be possible in Wisconsin as this preemption law only allows outdoor prohibitions on property owned by the municipality.

Another significant shortcoming is that there is no real enforcement. In most communities the local police are not going to enforce the state law. I know that in Madison the public health department does the enforcement and the police almost never do.

Moreover the fines are so low, they can be taken as the cost of doing business. I can certainly see the situation whereby someone wants to have party and people are allowed to smoke. Even if the owner was caught before and warned, the fine would only be $100.

Another major problem is that the bill explicitly prevents ordinances from using license suspensions. That is most unfortunate. As it turns out, that tactic has been used extensively by the Iowa AG.

Three More Bar Licenses Challenged for Smokefree Air Act Violations
Two bars in Lee County, one in Boone County bring total actions to 44.

Other problems include no ban on smoking in work related vehicles, not even government owned vehicles. No severability language. No retaliation prohibited language. Not very good language for people living in assisted living facilities. It also appears as though the penalty (court costs?) is also waved for violating this proposal.

The fact that there are major problems with the legislation should come as no surprise given the legislative actors. In the 1970s and into the 1980s, Fred Risser worked on smokefree legislation and then made numerous concessions to get the Clean Indoor Air Act passed. Of course, smoking was allowed almost everywhere and there was no enforcement.

Russ Decker has long been a friend of the Tavern League of Wisconsin. So it is no surprise that he took the bill out of Sen. Carpenter’s committee and put it in Sen. Erpenbach’s committee.

Sen. Erpenbach is very proud that he was named an outstanding freshman by the Tavern League of Wisconsin.

Conclusion: Passing local ordinances is the way to go.

Anonymous said...

I'm certainly not as eloquent or as educated at Ira, but to me this compromise seems like a good thing. If I can take my family to any restaurant and any bowling alley and not have to breathe in second-hand smoke, I will feel that progress has been made. Will this be perfect? No. But I guess I feel like my "half-loaf" will satisfy me. So many more people will be protected from second-hand smoke. -Heather