The ordinance regulating so-called enclosed public smoking areas in the City of Sheboygan is one that has just about everybody confused.
Several tavern owners say they’ve invested big money to build smoking rooms onto their establishments — offering ventilated areas for patrons to light up without sending them outdoors onto public sidewalks — and finding out they’re not in compliance with the city ordinance.
“I’ve been MIA from my business for 2½ months because this has taken up all my time and thousands and thousands of dollars and it’s kind of a nightmare and a big letdown,” said Hamilton Wesley Watt, 64, owner of the Vibez Tavern, 2513 S. Eighth St., who was told by officials last week his smoking room doesn’t comply with the city or state smoking ordinances.
Elected officials are trying to rework the ordinance in an effort to help businesses that thought they were following the law in good faith.
“I think the city should at least mirror the state (smoking ban),” Mayor Bob Ryan said. “I don’t think we should be any more restrictive than the state.”
City zoning and building inspection officials, meanwhile, are staying out of the fray, leaving it up to tavern owners to familiarize themselves with the city and state ordinances before they pull permits and start building smoking rooms, to eliminate the possibility of not complying with the law. That includes checking with the City Attorney’s Office and state officials.
“We put the onus on the property owners to know the rules and make sure they are complying with them,” said Steve Sokolowski, planning and zoning manager.
State law, which went into effect last July 5, essentially bans indoor smoking in all public places, including bars and restaurants. But the Legislature amended the law to include a loophole that allows for smoking areas that could allow for a roof and no more than two substantial walls. That would allow fresh air to enter within windows or other openings in the other walls. The Tavern League of Wisconsin has requested through its attorneys that the city follow the state smoking law.
The city ordinance was tougher than the state law, but was recently relaxed by the Common Council to increase the amount of wall space in a smoking area from 50 to 75 percent of the confined surface area, which places the minimum open space area at 25 percent.
Ald. Mark Hanna, at the time of passage on May 2, amended the ordinance to grandfather in all businesses that already had been approved for permits for smoking rooms.
However, faced with complaints from the Tavern League and tavern owners, aldermen on Monday night referred the measure to the council’s Law and Licensing Committee to review and possibly revise the changes in the city ordinance covering smoking rooms.
A recent check by police and city officials last week showed of the 10 smoking rooms constructed by taverns in the city, eight were not in compliance with the city ordinance — including Vibez Tavern, which doesn’t have enough open window area to clear out smoke.
Assistant City Attorney Chuck Adams had recommended the grandfather clause be removed from the ordinance, but Ald. Jim Bohren said he hopes that it will remain.
“I hope at the next Law and Licensing meeting that this can be hashed out, the original suggestion that Ald. Hanna made that these people that got these building permits in good faith are grandfathered in and we can get this to a satisfactory conclusion, not only for the bar owners, but also that we fall within this ordinance,” Bohren said.
Adams said that before the state smoking ban went into effect, the Department of Commerce developed interpretative regulations for smoking rooms for municipalities to follow in drafting their own smoking ordinances, which Sheboygan did. But Adams said the commerce department later withdrew that interpretation, leaving cities to fend for themselves in determining their own smoking ordinances.
Adams said the revised smoking city ordinance passed by the council is less strict, and is an effort to clarify what an enclosed smoking area is.
“I think that perhaps not everyone understood that the purpose of this ordinance was to become less restrictive,” he said.
Another reason for the ordinance was to offer tavern owners more control over their smoking patrons, instead of sending them onto the streets to smoke.
“The experience over the winter was such that a number of (city) staff people wanted to rethink the issue, because there had been some issues in places where smoking was going outside, and there were noise issues,” Adams said.
Because the law is ambiguous, Jack Van Der Weele, a city building inspector, said the city puts a disclaimer on permits for building additions that say the addition is not being approved as a smoking room. Watt’s permit for his addition at Vibez Tavern had such a disclaimer, Van Der Weele said.
Adams said the Law and Licensing Committee probably won’t take up the smoking ordinance until June, to give tavern owners and the Tavern League a chance to speak at the public hearing.
“All I’m asking them to do is hey, just follow the state law and let’s get on with it,” Watt said. “Mirror it, write it and adopt it.”
By Bob Petrie