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Carolina Beach May Have No Authority To Ban Smoking On Beach

The Town of Carolina Beach may not be the owners of their beachfront and therefore be unable to enact a ban on smoking on the beach.

By: Willard H. Killough
Managing Editor

CAROLINA BEACH – The Carolina Beach Town Council may have to postpone plans for beachfront smoking ban set for consideration at their upcoming August 14, meeting.

At the Council's Tuesday July 10, meeting, the Council unanimously voted to direct Town Attorney Lawrence Cragie to research the details of implementing such a ban and return with a proposal at their August regular meeting. 

State Session Law 2009-27 states a local government may adopt a smoking ban on local government “grounds.” The law defines "Grounds" as an “unenclosed area owned, leased, or occupied by State or local government.”

The issue centers largely on ownership – or title to – the beach for it to be considered “local government grounds” similar to government owned parks or buildings. Town Manager Tim Owens explained on Friday August 3, a law adopted by the North Carolina General Assembly in 1985 presents a problem.

The Town previously understood a building line created in 1963 gave them title to the largest portion of the beachfront from that building line out to the ocean. The 1985 law – adopted many years later – says, “Notwithstanding the other provisions of this section, the title to land in or immediately along the Atlantic Ocean raised above the mean high water mark by publicly financed projects which involve hydraulic dredging or other deposition of spoil materials or sand vests in the State. Title to such lands raised through projects that received no public funding vests in the adjacent littoral proprietor. All such raised lands shall remain open to the free use and enjoyment of the people of the State, consistent with the public trust rights in ocean beaches, which rights are part of the common heritage of the people of this State.”

In short, Owens said that law appears to give the state title or ownership to any beach that receives public funding for beach renourishment projects. That includes Carolina Beach which has received funding from both the state and federal governments for periodic beach renourishment projects dating back many decades.

Owens said Craige would deliver a more detailed summary of his research to the Council at their August 14, meeting at 6:30PM at Town Hall.

Owens said, “At this point it appears it’s leaning towards a recommendation not to implement a smoking ban” and the Town may have to call upon state legislators for new local legislation to grant authority to enact such a ban.

On Monday July 30, Carolina Beach Mayor Ray Rothrock explained, "I'm against it for several reasons. First, when it came to Council the concern was cigarette butts on the beach, then it was second hand smoke." He said the Town should focus on littering in general and nothing beyond that issue. He said, "If littering is the problem, let's enforce our existing littering laws."
Rothrock said currently the Town is looking at spending thousands of dollars in attorney fees drafting an ordinance when they could be spending that money to enforce or tighten up on the existing littering law that covers all litter, not just cigarette butts.

Rothrock said, "Enforcement will be a waste of time. If we enact a smoking ban, many people will likely go elsewhere" such as Kure Beach, Fort Fisher or other coastal areas without bans in place. He added that paying thousands for research on a ban is largely a waste of time and taxpayer money.

Councilman Bob Lewis said he at least wants to have a discussion about the ban. He was out of Town on business and not able to attend the July meeting where the Council voted to direct the attorney to research and return with a proposed ordinance on August 14. Lewis said Tuesday, "I don't like the fact that we may be creating a non-smoking and smoking sections on the beach. Plus, I have some issues with enforcement which could be ridiculous. I support a non-smoking beach" but there are issues that need to be discussed. He added, "Plus I've heard from some people there's an older loyal crowd of visitors that may be discouraged from returning."

Council member Sarah Friede said she thinks the ban, "Is the right thing to do based on the science that's been presented to us" indicating there's no safe level of exposure to second hand smoke. She explained, "There are things worth spending money on and this is one of them. It's part of the cost of doing business. When a law gets passed, people obey the law. I hope I'm not naive, but people will do the right thing for the most part. We should not assume people will willfully ignore the law."

Friede explained smoking is a more visible violation with smoke in the air unlike general littering or drinking on the beach.

Councilman Lonnie Lashley said at the July 10th, meeting it's a bold move in the right direction and he would have voted on it that night.

Councilman Steve Shuttleworth made the motion at the July 10th meeting to direct the Town to research the ordinance and explained he was in favor of such a ban in whatever areas of the beach the Town ultimately has the authority to impose a ban.