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Kure Beach Council Informed Beach Smoking Ban Not An Option

Kure Beach Town Attorney Andy Canoutas informed the Town Council on Thursday July 19, that any future proposal to ban smoking on the beachfront similar to ones proposed in Wrightsville Beach and Carolina Beach is not an option. The Town doesn't have title to the beach and under state law that's required before adopting a ban.

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KURE BEACH, NC - Kure Beach Town Attorney Andy Canoutas informed the Town Council at their July 19, meeting the Town has no legal authority to adopt a ban on smoking on the beachfront similar to proposals in Wrightsville Beach and Carolina Beach.
Mayor Dean Lambeth requested the item be added to the agenda to address the issue due to the ongoing issue in the other two beach towns. The Carolina Beach Town Council held a public hearing at their Tuesday July 10, meeting. That hearing was well attended by citizens offering a wide variety of opinions both in favor and in opposition to a smoking ban on the beachfront for numerous reasons. The Carolina Beach Council voted to consider a ban at their August regular meeting.
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.
On Tuesday July 17, Mayor Lambeth said in anticipation of the issue being brought up due to proposals in both Wrightsville Beach and Carolina Beach, "I wanted to let them know we don't own the beach."
Lambeth said, "Most of the cigarette butts on our beach come from storm water runoff" that reaches the beach via storm drain outfall pipes. He added, "Plus, it would be hell to enforce. I haven't heard of anyone bringing up the issue at this point, but we need to go ahead and have Council discussion."
During the July 19, Council meeting Town Attorney Canoutas explained, "Under the state law which is "Smoking Prohibited in Public Places and Places of Employment" that the legislature passed... states that local governments can pass these ordinances on local government grounds. When you read the definitions of the general statute, grounds is defined as an unenclosed area owned, leased or occupied by the local government. Well, we don't own any of that out there" on the beach.
He explained, "The property out here on the beach, we are very unique I guess. Back in the days of old when the Kure's first started selling properties, they use to sell the properties on the oceanfront to the high water mark. And there are a lot of people out there still paying taxes on that even though it is in public-trust by case law."
The terms "Public Trust" refer to the an ancient common law observed in North Carolina that says the public can use the beach from the dunes to the water regardless of whether any portion is held in private ownership. It's also an important part in local beach nourishment agreements with the federal government and supports the state's long-standing position that public access to the beach and ocean is a paramount public right.
Canoutas explained, "In my opinion, we don't have the authority" to impose a smoking ban. He said, "Wrightsville Beach is in a different position because in 1939 they acquired the beach by deed. They own their beach so they can enforce anything they want to out there."
Canoutas explained, "I don't know about Carolina Beach. All I know is in 1963 they got an act passed establishing a building line but I don't know what that is as far as title to property."
He said, "I know that we don't own anything out there on that sand. We are blessed by the fact that we have our easement line for beach renourishment and also the CAMA coastal line pretty well takes care of our problems out on the beach therefore we don't need any other laws or any other possession. I just don't see where we have the authority to get into a smoking ban."
He said dog ordinances and other regulations on the beach such as littering are enforceable on the beach because they are part of the Town's general policing power, but the state set specific requirements for adopting smoking bans.
Canastas said the Town could cite people for littering.
Mayor Lambeth said, "And that'll be another dozen police officers..."
Councilman David Heglar asked, "I remember when we went through and had to get property owners to sign away rights prior to beach renourishment, so that didn't change the title..."
Canoutas explained, "That had nothing to do with the building, the easement we got was purely a certain distance that the Army Corp of Engineers has a right to go upon when they are doing beach renourishment."
He explained, "The owners own the property all we have is a perpetual easement forever to use the beach."
Canoutas agreed with Heglar the easement also prohibits property owners from building within that area.
Heglar said, "What if the original owners put up no-smoking signs there? Since it's not our property, could everybody go outside their house and put one up?"
Canoutas said that's unlikely because it wouldn't be enforceable and they'd likely have to get permits for signs and pay for surveys.
Council member Emilie Swearingen asked, "Does the state have any responsibility? Could you go to the state to put a smoking ban out there?"
Canoutas said, "You can go to the legislature anytime to get anything passed."
Mayor Lambeth said, "We would have to ask the state."
Heglar said the state could change the statute to permit Kure Beach to impose a smoking ban on the beach.
Lambeth said, "It's my recommendation to let Carolina Beach work through this quagmire before we're brought into it."
Canoutas said Carolina Beach, "Has a building line established by the legislature that took that easement in 1963. They didn't bother going to the individual property owners. They gave them certain number of days to come forth and protest and they didn't come and protest. So the land automatically reverted to the town for an easement."
In response to a comment in the audience about where the state law permits bans on the beach, Heglar said, "This is a tobacco state. I'm not sure exactly how the legislature wrote that [law] but they wrote it specifically around what the government could control around smoking."
The Council took no action.
Earlier in the meeting two people signed up to speak on the smoking ban issue.
Carolina Beach resident Beverly Veals said her son is a lifeguard in Kure Beach and asked the Council to consider lifeguards who can't move from their towers when people are smoking nearby.
She said, "I address the council to keep that in consideration when you are looking at the smoking ban" to provide a smoke free environment for their employees.
Carolina Beach resident Ethan Crouch explained, "I'm a board member of the Cape Fear Chapter of the Surf Rider Foundation. The Surf Rider Foundation is a non-profit organization dedicated to protecting the oceans, waves and beaches through a powerful activist network. Locally we have over 1,200 engaged volunteers. Worldwide we are made up of over 250,000 members..."
Crouch explained, "Having a clean and healthy beach is an integral part of our way of life here in Kure Beach. It's the foundation of our economy and provides us with a beautiful place for rest and recreation. Passing an ordinance to eliminate smoking on the beach strand is a controversial issue with many different elements to consider. But the heart of the matter is simply an effort to protect our beach and offer people a safe and healthy environment."
He said, "I hope tonight is just the start of the conversation to determine what is the best strategy for our community because relying on the current litter laws is simply not working. Smoking on the beach does create two major challenges to a clean and healthy beach. The first challenge... is second hand smoke. The dangers of second hand smoke are well documented. Studies show that there are no minimal safe exposure to second hand smoke. We have all been to the beach and found ourselves downwind of a smoker. This is a very unpleasant experience and is also dangerous to our health."
Crouch explained, "The second challenge smoking proposes to a clean and healthy beach is the litter generated from cigarette butts. Unfortunately right now our beach is covered in this toxic waste. Cigarette butts are actually made of ... a form of plastic that does not biodegrade. Also they contain lots of dangerous chemicals."
He said, "Cigarette butts are the number one littered item in the world. They are by far the most common item we collect in all of our beach cleanups. Placing cigarette butts in the same category of other littered items is not practical because they are so pervasive and this litter is toxic."
Crouch said, "Sadly, with the current policy in place, you can't take one step on our beach and not find a cigarette butt in the sand."
He said, "Currently there are 130 beaches in the U.S. that have a smoking ban in place. The residents of Wrightsville Beach are voting in November on a similar ban as well as Carolina Beach now is considering a ban in August."
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. A mark that is a moving target with beach erosion and periodic beach nourishment projects.
Carolina Beach more limited in the area where a smoking ban could be imposed on the beach.
Carolina Beach Town Attorney Lawrence Craige explained on July 10, "At this point it appears there is some enabling legislation that goes back to 1963 that gives [Carolina Beach] 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.
Carolina Beach Councilman Steve Shuttleworth made a motion at their July 10, meeting to direct the Town Attorney to research an ordinance banning smoking on the beachfront in certain areas.
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 Carolina Beach 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.