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Carolina Beach To Consider Beach Smoking Ban In August

A busy holiday on the beach at Carolina Beach. The Town Council voted to direct their Town Attorney to research implementing a smoking ban on the beach. There are still some questions as to where a ban could be enforced, but Council agreed they would like to consider a ban at their August regular meeting. (Audio of the Council meeting included in report).

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Audio available for this report. Click here to listen to the agenda item from the meeting. (mp3 audio file. Can be played by most audio software)

CAROLINA BEACH - The Carolina Beach Town Council heard public comment at their Tuesday July 10 meeting on the issue of implementing a smoking ban on the beach everywhere except Freeman Park. The item was placed on the agenda at the request of Councilman Lonnie Lashley.
The Wrightsville Beach Board of Aldermen debated the issue earlier this year ultimately voting not to implement such a ban. Concerned residents petitioned the Board to hold a referendum that will appear on the November 2012 ballot posing the question of whether or not to ban smoking on their beachfront.
According to Town Manager Tim Owens, to date the Town of Carolina Beach has not discussed the issue of a smoking ban.
He explained Lashley wanted a public hearing on the topic to seek the opinion of fellow council members regarding the issue.
Owens suggested in a memo to Council last week he wants to have the Town Attorney review the matter to determine if the Town has the authority to consider such a ban and if State law permits such action.
He also wants to determine whom and by what means the ban would be enforced. He said the Town Attorney could then draft an ordinance for future review and consideration by the Council.
The Town of Wrightsville Beach has a law that allows any ordinance to be petitioned to the governing board by signatures of registered voters forcing the issue to be placed on a ballot referendum if the governing board fails to adopt the petition language. The Town of Carolina Beach has no such law, meaning the Town Council is the final word on the issue.
At the Council's Tuesday July 10, meeting, the Council unanimously voted to direct the Town Attorney to research the details of implementing such a ban and return to them at their August regular meeting. Councilman Bob Lewis was not present at the meeting. He was out of town on business.
Don Mcata of Canal Drive said he moved here a year and a half ago and he chose Carolina Beach over other coastal towns because of the unique character of the Town. He said America was founded on tobacco cash crops and North Carolina historically depended on it as a major cash crop throughout history.
He said, "I'm getting a little tired of being told from year to year what my town or state can tell me what to do or what not to do as a tax paying adult. I've never been in trouble with the law and my daughter is in Afghanistan right now with the Marines."
He asked, "What's next?" and "Where does it stop."
He said, "Many of our ordinances are not being enforced. There are still dogs" running on the beach when the Town prohibits it.
Brenda Armes, owner of Olde Salty's Restaurant on the Carolina Beach Boardwalk said, "We have cigarette butts everywhere. It's not a question of people banning smoking it's a question of the abuse from what you get from what they throw down. It is litter. It's not trash, it's toxic waste."
She said, "If the only way we can stop this is to ban people, because they don't have enough sense or courtesy to dispose of this product properly, then it should be banned from Carolina Beach or any beach in the world."
She said butts end up in the water and in the belly of fish and other wildlife causing death due to toxic chemicals.
Jack Stanton said he picks up bags full of trash when towing vehicles from Freeman Park on the north end. He said it's not just cigarette butts.
He said over the years non-smokers have pushed for and achieved bans on smoking in restaurants, bars and many other public places. He said, "It becomes a question of individual rights and freedoms. You can't keep taking away from me, yet demanding the tax money from me to give into a small vocal adamant group." He said banning plastic bags would better help the environment because of their impact on wildlife.
Ethan Crouch, a board member for the Cape Fear Chapter of the Surfrider Foundation with over 250,000 members world wide, thanked the Council for taking public comment. He said, "Having a clean and healthy beach is an integral part of our way of life here in Carolina Beach. It's the foundation of our economy and provides us with a beautiful place of rest and recreation."
He said a smoking ban would provide a safe and healthy environment for everyone and relying on the current litter laws has not worked.
He said, "The dangers of secondhand smoke are well documented. Studies show that there are minimal safe exposure to second hand smoke. We have all been at the beach and found ourselves downwind of a smoker. This is a very unpleasant experience and is dangerous to our health."
He said the second impact is cigarette butts which equate to toxic waste because of the toxic chemicals contained in the non-biodegradable butts which never go away.
He said, "You can't take one step on our beach and not find a cigarette butt on our beach."
He urged the Council to approve a ban and currently there are 126 beaches in the United States that have bans in place. Wrightsville voters will be asked to approve of a ban in November.
Scott Veals said, "We've lived here on Pleasure Island since August of 2009." He said on the issue of enforcing such a ban, he has the right to tell someone they can't smoke on the beach and if they continue, he can call the police to address the violation.
He said, "My wife Bev is a breast cancer survivor and has pulmonary and respiratory issues resulting from her treatments. These issues are triggered by things such as perfumes, pesticides, exhaust fumes and cigarette smoke. We moved here because of the doctor ordered fresh air that the ocean gives us. Bev was able to cut down on her medicine shortly after we moved here because of the fresh ocean breeze. But when we go out and enjoy the beach, she encounters smokers. She has to leave the beach and go take medications. Which also means she needs to be under the care of a physician."
He said, "Who pays for that? Rhetorically, my wife pays for that with her health. I pay for that with my wallet. Nobody else pays for the care of my wife medically. Every episode of breathing cigarette smoke further endangers my wife's lungs" which were damaged as a result of treatments for breast cancer which he says was probably caused by growing up with parents who smoked. 
He urged the Council to approve the ban and said a previous Stanford University study answered whether people have a right to smoke anywhere. He said the study noted people don't have a right to generate toxic air pollution in the breathing space of others especially when the pollutant generating activities are for recreational purposes.
Town Attorney Lawrence Craige explained, "At this point the issue is what is the enabling legislation that would authorize the town to regulate smoking on the beach. It either has to be a local act from the North Carolina General Assembly that gives the Council the authority to do it, some kind of condemnation proceeding that gives title to the regulated property to the Town or some type of deed from a private property owner to the Town."
He said, "At this point it appears there is some enabling legislation that goes back to 1963 that gives the Town title to property from the building line on the 1963 map to the low water mark of the Atlantic Ocean."
He said after reviewing that map, the Town would have the authority to regulate from that building line to the low water mark of the ocean. Where that line is not defined then the Town would not have the authority to regulate that beach property."
Craige said, "There was also legislation passed that granted title to property from the high water mark on any property where there has been beach renourishment, title to that property from the high water mark... is in the state. There may be situations where both the title to the property is with the Town and the State of North Carolina. In that instance the Town would arguably have a right to regulate that land. Absent some indication of ownership by the Town... they would not be able to regulate it."
Town Manager Tim Owens said the southern portion of Town was not a part of the Town limits in 1963 and was not part of the Town's beach nourishment project. He said that area begins around the area of the Carolina Beach Lake and south to neighboring Kure Beach. He said, "In that area south to Kure Beach there may be no way to impose a smoking ban because it's part of the public trust" beachfront.
Owens said currently the State would have to clarify how to deal with people standing at the waters edge smoking on the beach because that would fall outside regulation.
Other ordinances such as banning dogs on the beach are specifically permitted by general policing powers. The legislation adopted by the State giving Town's the authority to implement smoking bans on "public grounds" was adopted in 2010 long after those types of bans were permitted and has specific requirements.
Owens said there are still a lot of issues to be researched before moving forward.
Wrightsville Beach has a different scenario due to legislation adopted in 1939 that gives them title to a section of the beach to the high-tide watermark. There's still some question
how a ban would be enforced should voters approve of a ban in November.
Council member Sarah Friede said, "I'm very much in favor of banning cigarettes on the beach" and would like to request the Town Attorney bring back an ordinance and information advising them how to proceed. She said people can treat their bodies how they please, but when she takes her kids to the beach she doesn't want to be subjected to the health hazards.
Councilman Steve Shuttleworth said he's an ex-smoker of 20 years. He said emails on the topic he's received are "30 to 1" in favor of the ban. He said after spending time on the beach over the weekend, he observed people just tossing down their cigarette butts and it's a problem that needs to be resolved.
He said, "If' it's a question of authority or the state has the authority that maybe something the state has to look at. I doubt they are not going to back us up."
He said, "That would leave Freeman Park and south of the lake. Until such time as we can go to our legislators and ask them for authority south of the lake where there is no building line... we could at least start with a good 12 or 14 blocks from the North End Pier down" to where there is no 1963 building line.
The Council voted to advertise for a public hearing at their August regular meeting in order to consider adopting a smoking ban for areas they determine they have authority.
Councilman Lonnie Lashley sad he was glad to see the Council being bold and going forward. He said, "I'm ready to vote tonight" for the ban.