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City of New Berlin, WI
Waukesha County
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Table of Contents
Table of Contents
Code
New Laws (8) Index
[HISTORY: Adopted by the Common Council of the City of New Berlin 10-10-2000 by Ord. No. 2124 as Secs. 9.27 and 9.35 of the Municipal Code.[1] Amendments noted where applicable.]
[1]
Editor's Note: Chapter 93, formerly "Cigarettes and Tobacco Products," was retitled 1-26-2021 by Ord. No. 2643.
As used in this chapter, the following terms shall have the meanings indicated:
CIGARETTE
Any roll of tobacco wrapped in paper or any substance other than tobacco.
[Amended 10-9-2012 by Ord. No. 2496]
SCHOOLS
The public schools under the jurisdiction of the School Board of the City.
TOBACCO PRODUCTS
Cigars, cigarettes, cheroots, stogies, periques, smoking tobacco, tobacco in any form including, but not limited to, granulated, plug cut, crimp cut, ready rolled, fine cut, chewing tobaccos, snuff, snuff flour, cavendish, plug and twist tobacco, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco and any other kinds or forms of tobacco prepared in a manner as to be suitable for chewing or smoking or both.
VAPOR PRODUCTS
Noncombustible products that may or may not contain nicotine, that employ a mechanical heating element, battery, electronic circuit or other mechanism, regardless of shape or size, that can be used to produce a vapor in a solution or other form including, but not limited to, an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device. "Vapor products" shall include any vapor cartridge, solution or other container that may or may not contain nicotine that is intended to be used with an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device. "Vapor products" do not include any products regulated by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.[1]
[Added 1-26-2021 by Ord. No. 2643]
[1]
Editor's Note: See 21 U.S.C.A. § 351 et seq.
Section 134.66, Wis. Stats., as amended from time to time, is hereby adopted by reference as though fully set forth herein.
Section 254.92, Wis. Stats., as amended from time to time, is hereby adopted by reference as though fully set forth herein.
[Added 1-26-2021 by Ord. No. 2643]
A. 
Findings. The Common Council of the City of New Berlin finds that:
(1) 
The purpose of this chapter is to protect the public health, safety and welfare of the property and persons in the city by prohibiting persons under 18 years of age from possessing cigarettes, tobacco and vapor products and prohibiting the sale of cigarettes, tobacco and vapor products to persons under 18 years of age; and
(2) 
Persons under age 18 are prohibited by law from purchasing or possessing cigarettes and other tobacco products, and retailers are prohibited from selling them to minors. Now, there are many tobacco-less products available, commonly referred to as "electronic cigarettes," "e-cigarettes," "e-cigars," "e-cigarillos," "e-pipes," "e-hookahs," or "electronic nicotine delivery systems," which allow the user to simulate cigarette smoking and introduce vapor products into one's body. These products may be purchased by minors and are being marketed without age restrictions or health warnings and come in different flavors that appeal to young people; and
(3) 
The production and distribution of vapor products and electronic smoking devices is not currently regulated by federal or state authorities, and the U.S. Food and Drug Administration ("FDA") has not completed testing of these products. However, initial studies by the FDA have determined that use of vapor products and electronic smoking devices can increase nicotine addiction among young people and contain chemical ingredients known to be harmful, which may expose users and the public to potential health risks; and
(4) 
The use of electronic smoking devices has increased significantly in recent years, as evidenced by the fact that:
(a) 
The FDA has found that over 5,000,000 middle and high school students were users of e-cigarettes in 2019, and almost 1,000,000 were using e-cigarettes on a daily basis; and
(b) 
The use rate among middle schoolers rose from 0.6% in 2011 to 10.5% in 2019; and
(c) 
A majority of youth e-cigarette users report using flavored varieties; most youth e-cigarette users first start using e-cigarettes with a flavored variety and, for the period 2013 to 2014, 81% of youth e-cigarette users cited the availably of appealing flavors as the primary reason for use; and
(d) 
In 2018, about eight in 10 middle school and high school students - more than 20,000,000 youth - said they had seen e-cigarette advertising; and
(e) 
According to the Centers for Disease Control ("CDC"), in 2016, approximately 1/3 of U.S. middle school and high school students who had ever used an e-cigarette also reported using marijuana in the device; and
(5) 
Existing studies on electronic smoking devices' vapor emissions and cartridge contents have found a number of dangerous substances including:
(a) 
Chemicals known to cause cancer such as formaldehyde, acetaldehyde, lead, nickel and chromium; and
(b) 
PM 2.5, acrolein, tin, toluene, and aluminum, which are associated with a range of negative health effects such as skin, eye, and respiratory irritation, neurological effects, damage to reproductive systems, and even premature death from heart attacks and stroke; and
(6) 
A Harvard University health study found high levels of diacetyl in 39 of 51 unique flavors of chemicals used in electronic smoking devices. Diacetyl is associated with bronchiolitis obliterans and other severe respiratory diseases among workers who have inhaled heated vapors containing diacetyl; and
(7) 
As of August 2019, the University of Wisconsin Center for Tobacco Research and Intervention has found several cases of severe breathing complications and lung disease linked to vaping; and
(8) 
Since April 2019, the FDA has received at least 118 new reports of e-cigarette users experiencing seizures and similar incidents. The agency has received at least 127 reports of neurological events following e-cigarette use between 2010 and 2019; and
(9) 
As of February 18, 2020, 2,807 people have been reported to the CDC as hospitalized due to vaping and there have been 68 deaths confirmed related to vaping; and
(10) 
Electronic smoking devices emit ultrafine particles, volatile organic compounds, and other toxins. Exposure to ultrafine particles may exacerbate respiratory illnesses, such as asthma, and may constrict arteries which could trigger a heart attack. The volatile organic compounds, such as formaldehyde and benzene, found in electronic smoking device aerosols are proven carcinogens; and
(11) 
Defective e-cigarette batteries have caused fires and explosions which have resulted in serious injuries; and
(12) 
Children and adults have been poisoned by swallowing, breathing, or absorbing e-cigarette liquid through their skin and eyes. Approximately 50% of calls to poison control centers for e-cigarettes are for children five years of age or younger; and
(13) 
Some cartridges used by electronic smoking devices can be refilled with liquid nicotine solution, creating the potential for exposure to dangerous concentrations of nicotine. The CDC has found that:
(a) 
Most e-cigarettes contain nicotine and that 99% of the e-cigarettes sold in assessed venues in the U.S. contained nicotine; and
(b) 
Some e-cigarette labels do not disclose that they contain nicotine, and some e-cigarettes marketed as containing 0% nicotine have been found to contain nicotine; and
(c) 
Nicotine can harm the developing adolescent brain (which continues to develop until about age 25; and
(d) 
Using nicotine in adolescence can harm the parts of the brain that control attention, learning, mood, and impulse control; and
(e) 
Using nicotine in adolescence may also increase risk for future addiction to other drugs; and
(f) 
A single JUUL pod (a device brand) contains as much nicotine as a pack of 20 regular cigarettes; and
(14) 
A study published in the Journal of Environmental and Public Health suggests that electronic smoking devices "may have the capacity to 're-normalize' tobacco use in a demographic that has had significant denormalization of tobacco use previously"; and
(15) 
Research indicates electronic smoking devices may lead youth to try tobacco products. In addition, research indicates that youth who use electronic smoking devices are more likely to use tobacco products, including cigarettes, than those youth who do not use electronic smoking devices; and
(16) 
The use of electronic smoking devices in smoke-free locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in public places and places of employment; and
(17) 
Electronic smoking devices are commonly used to vaporize and ingest controlled substances, such as marijuana wax, synthetic marijuana, liquid marijuana, and hash oil.
B. 
Purchase, sale or possession of vapor products.
(1) 
Sale of vapor products to minors prohibited. No person, by himself, his servant or agent, or as the servant or agent of any other, shall sell, give away, or otherwise dispose of, by vending machine or otherwise, any vapor product to any person under the age of 18 years.
(2) 
Purchase or possession of vapor products by persons under 18 years of age prohibited.
(a) 
No person under 18 years of age may falsely represent his or her age for the purpose of receiving any vapor products.
(b) 
No person under 18 years of age may purchase, attempt to purchase or possess any vapor products except as follows:
[1] 
A person under 18 years of age may purchase or possess vapor products for the sole purpose of resale in the course of employment during his or her working hours if employed by a retailer. The defenses provided in § 134.66(3)(a) through (c), Wis. Stats., shall also be defenses to any prosecution hereunder.
[Amended 1-26-2021 by Ord. No. 2643]
No person under 18 years of age may possess any cigarette, tobacco or vapor product at any time inside any building owned, leased or used by a public school in the City.
[Amended 1-26-2021 by Ord. No. 2643]
No person may smoke, light, ingest, chew, inhale or otherwise use any cigarette, tobacco or vapor product or smoke from a cigarette or tobacco product, or use any vapor product, at any time, inside any building owned, leased or used by a public school in the City.
[Amended 1-26-2021 by Ord. No. 2643]
No person, regardless of age, may smoke, light, ingest, chew, inhale or otherwise use any cigarette, tobacco product or vapor product, smoke from a cigarette or tobacco product or use any vapor product on land owned, leased or used by a public school in the City on any day on the official school calendar for student or teacher attendance from 6:30 a.m. until after the time of departure of the last scheduled late bus or 5:30 p.m., whichever is later
[Amended 1-26-2021 by Ord. No. 2643]
No person may smoke, light, ingest, chew, inhale or otherwise use any cigarette, tobacco product or vapor product, while attending a function or event at a public school, or while attending a function or event on a school ground in the City.
Except in such specific outdoor areas as are designated by the Mayor to permit smoking, all persons shall refrain from smoking:
A. 
In City buildings, facilities and vehicles. Buildings shall include all that area enclosed within the outermost entry doors.
B. 
Within 50 feet of any public entrance to City buildings.
[Added 10-9-2012 by Ord. No. 2496[1]]
Section 101.123 of the Wisconsin Statutes, as amended from time to time, is hereby adopted by reference as though fully set forth herein.
[1]
Editor’s Note: This ordinance also provided for the renumbering of former § 93-9 as § 93-10.
[Amended 10-9-2012 by Ord. No. 2496]
Except as otherwise provided, any person who shall violate any provision of this chapter shall be subject to a penalty as provided in Chapter 1. See General Provisions, § 1-18 of this Code. Each day that a violation continues of § 93-9 of this Code shall be considered a separate violation, and the forfeiture applicable hereunder shall apply to each day that said violation continues.