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State smoking ban may prompt city to repeal local law

April 14, 2010

Attorneys in Wauwatosa's legal department are recommend repealing the city's smoke-free restaurant ordinance to make way for a statewide ban that will prohibit smoking in just about all indoor public places starting July 5.

Although the city is required to follow the state's stricter ban, adopting it as the local ordinance will allow Wauwatosa to enforce the law in municipal court, which means fines from violators would become city revenue.

The existing ordinance, enacted in 2006, prohibits smoking in city restaurants. But exemptions are allowed for eatery/bar combinations that made at least half their gross sales from alcohol or already had smoking areas sealed by walls or doors.

The Community Development Committee on Tuesday unanimously supported doing away with the existing ordinance, but there were a couple of dissenters - Aldermen Robert Dennik and Thomas Herzog - on adopting the state ban.

"I already have a mother, I don't need another one," Alderman Robert Dennik said, referring to a disagreement with government dictating where people can smoke when private businesses are involved.

At this point, the validity of the law isn't up for debate, Assistant City Attorney Eileen Miller Carter said.

"This will be the law in the city and every other municipality (in Wisconsin)," she said.

The final decision is up to the full Common Council next Tuesday. However, if they choose not to repeal and replace the existing ordinance, violations would be prosecuted in circuit court and the city would lose out on dollars, Miller Carter said.

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