- Published on Thursday, 16 August 2012 23:31
- Written by Super User
Carolina Beach Town Manager Tim Owens advises the Town Council on a proposed beachfront smoking ban. The Town Attorney advised the Council they have no authority to enact such a ban. The Council approved adopting the smoking ban pending consideration for approval next year by the State General Assembly.
By WILLARD KILLOUGH III
CAROLINA BEACH – The Carolina Beach Town Council voted Tuesday night August 14, to adopt a ban on smoking on the beachfront pending approval from the North Carolina General Assembly at a future date.
This means there is no active smoking ban until the Town requests a local state representative to sponsor a local bill granting them the power to uphold such a ban.
The General Assembly does not meet again until the start of the new legislative session on January 9, 2013 and any such legislation if introduced would not be voted upon until some time later in 2013.
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.
In a memo delivered to Council Tuesday August 7, Town Attorney Lawrence Cragie explained, "The Public Beach (land from the low water mark westward to any land raised by a publicly financed beach renourishment project) is owned by the State of North Carolina in accordance with" state General Statute 146-6(f) and, "The Public Trust Doctrine. The Town of Carolina Beach may not adopt and enforce ordinances prohibiting smoking under" General Statute 130A-498, "Since the Public Beach is not "local government grounds."
Craige explained, "Other local ordinances adopted and enforced by the Town (leash law, alcohol consumption, vehicular access, littering) on Public Beach are generally the result of enabling legislation from the North Carolina General Assembly granting specific authority for the local government to adopt and enforce said ordinances on public land."
Craige said State law was amended January 2010 to give local governments expanded authority to regulate smoking in "public places" and on "local government grounds." That law says it's, "The intent of the General Assembly to allow local governments to adopt local laws governing smoking within their jurisdictions that are more restrictive than State law."
He explained, "In other words, is the Public Beach within the Town's jurisdiction as a "public place" or as "local government grounds" so that the Town has authority to regulate smoking under" that State law?
He explained the answer is no because the State law defines a "public place" as an enclosed area to which the public is invited or in which the public is permitted. The Public Beach is not enclosed. An area is "enclosed" if it has a roof or other overhead covering of any kind and walls are side coverings of any kind on all sides or all sides but one.
He explained "Grounds" is defined as "an unenclosed area owned, leased, or occupied by State or local government". He explained, "In other words, local governments do have the authority to regulate all unenclosed areas owned, leased, or occupied by the local government. For example, a Town may regulate smoking in the outdoor area surrounding Town Hall or a Town owned park. However, in accordance with N.C.G.S. 146(f) and as stated in an April 6, 1998 Attorney General Opinion, the Town's Public Beach is not considered "local government grounds" subject to local government regulations on smoking."
Craige said a 1963 Carolina Beach Building Line Act granted title to the Town to land between that line and the low water mark of the Atlantic Ocean subject to certain restrictions.
In 1985, the State Lands Act was amended to establish title to certain lands raised from navigable waters. A new section was added addressing title to land in or immediately along the Atlantic Ocean raised above the mean high water mark.
Craige explained, "Although the 1963 Session Law as a special legislative grant conveyed good title to the Town of Carolina Beach subject to public trust rights, publicly funded projects since May 30 1985 (to the extent they raised land within the bounds of the grant above the mean high water mark by hydraulic dredging or deposition of spoil or sand) would have vested title in the State by operation of law pursuant" to North Carolina General Statute 146-6(f).
Craige said the 1998 Attorney General Opinion reinforced the 1985 Act thus taking title to the beach away from the Town and placing it with the State due to publicly funded beach nourishment projects over the years.
Cragie explained, "In effect, the continuing beach renourishment and bulldozing activities since 1985 west of the low water mark transferred title from the Town of Carolina Beach to the State by operation of law."
He explained, "After more than 55 years of public renourishment, up-to-date surveys would probably show that virtually all oceanfront land in Carolina Beach east of the landward toe at the bottom of the west-face" frontal dune is at minimum subject to the public trust and likely owned by the State."
Because of all of the those factors, Craige said in his opinion the Town can not in fact adopt a ban on smoking on the beach.
Craige said Town's can enforce other regulations such as vehicles driving on the beach because the State General Assembly grants specific permission to enforce such ordinances if a Town chooses to do so.
State law permits a city to adopt an ordinance to regulate the illegal disposal of solid waste, including littering on public and private property and, "A city may adopt ordinances to regulate and control swimming, surfing and littering in the Atlantic Ocean adjacent to that portion of the city within its boundaries."
Since the 2010 State Law regulating bans on smoking by local governments is specific in its language, Cragie explained, "Absent enabling legislation from the general assembly that gives the Town of Carolina Beach the authority to prohibit or regulate smoking on the public beach, the Town cannot do so."
Town Manager Tim Owens explained offered five options to the Council at their August 14, meeting. Those included:
1. Approve the ordinance regulating smoking on the beach realizing the limitations that the Town may have to regulate this type of item.
2. Approve the changes to the litter ordinance that specify certain tobacco products as litter when discarded.
3. Request special legislation to be able to regulate this type of activity on the beach. He explained, "I would suggest that we meet with our elected officials following the upcoming election to get their viewpoint on the matter before any formal request is made regarding this matter."
4. Hold the public hearing on the matter to receive input on the item or cancel the public hearing.
5. Delete the item from the agenda.
Councilman Lonnie Lashley said the Council should move forward and be the first in the state to adopt a ban. He said, "The community of Carolina Beach wants to ban smoking on the beach." Several in the audience said, "No they don't."
Lashley recommended the Council adopt the ban saying, "The effective date would not come into play until it is approved by the General Assembly... and we could not enforce that until it is approved by our legislators in Raleigh."
Mayor Rothrock urged waiting until after the November elections to speak with legislators about possible new legislation rather than, "Writing something that might be useless" depending on what the legislature agrees to.
The Council heard from about nine people speaking in favor of the ban with two speaking against it. Those in favor of the ban cited environmental concerns of toxic chemicals leaching from cigarette butts into the environment and the impact of second hand smoke on non-smokers.
Those opposing the ban expressed concern with further limiting the rights of smokers. Carolina Beach resident Gina Benton said smokers have already been pushed outside of most buildings, restaurants and bars and now that they're outside, there's a move to ban smoking outside.
Resident Scott Veals presented a bottle of butts picked up from the beach and cited studies that say toxic butts not only harm the environment, he said, "The littering of cigarette butts on the beach detract from our city's beauty, they're an eyesore and they detract from the families enjoyment of our beach."
Veals noted second hand smoke contains over 7,000 harmful chemicals and cited a Stanford University study that showed breathing second hand smoke outside is 100 times the impact of normal background pollution in the air.
Council member Sarah Friede said she has concerns about passing an ordinance the Town may have no jurisdiction to enforce. She said, "I would hope with some tweaking we could consider adopting this ordinance with the complete understanding that it will not go
into effect unless and until there is enabling legislation from the state. Clearly, I don't want to buy a lawsuit."
Friede said she received hundreds of emails on the issue and 95 percent of them were in favor of the ban.
She explained, "If I had gotten 95 percent responses saying don't ban it... what would I think. Deep down I would still think it's a public health issue. I'm not interested in taking away anyone's rights. People have a right to smoke if they want to, but there is no way for a person to live in a bubble and contain the smoke completely."
She explained until smokeless cigarettes become more popular, "There is no way of getting around the fact that cigarettes create second hand smoke and it affects people in a way that very few other behaviors do. That to me is why I cannot say the rights of smokers are more important than the rights of non-smokers to have their lungs, health and wishes respected."
Councilman Steve Shuttleworth said, "For me it's a stewardship issue" and said some communities in South Carolina have seen a positive economic impact since adopting smoking bans. He said one Wrightsville Beach hotel put out butt disposal containers for smokers to use. In Carolina Beach, there are only trashcans on the beach.
Mayor Ray Rothrock said he recently visited the Boardwalk area after the July 4, holiday and cigarette butts were very visible. He said if the Town moved to ban smoking in that area, every business would likely oppose it.
The Council voted four to one with Council members Sarah Friede, Shuttleworth, Lashley and Bob Lewis voting in favor of adopting the ban pending permission to enforce it from the State Legislature next year. Mayor Ray Rothrock voted no.
Shuttleworth requested a budget to provide enforcement of the existing littering law and placing containers out for smokers to deposit their butts.
Lewis encouraged working on a marketing and education program to promote a smoke free beach and better signs altering the public to littering laws.