Taking a first step toward possibly banning smoking on the town’s beaches, boardwalk, parks, playgrounds and oceanfront, members of the Bethany Beach Town Council on Friday, Nov. 16, heard commentary from citizens, advocates and area businesspeople about the controversial notion.
While much of the expert testimony on Friday focused on the health benefits and forward-thinking of such a ban, some of those who spoke also championed the rights of smokers to enjoy the outdoors as they please and even challenged the scientific evidence behind public health concerns that have spurred the question forward in Bethany.
Attorney Jackie McNamara was the first to speak at last week’s public hearing and one of those who traveled the farthest to do so.
McNamara is a research fellow with the Legal Resource Center for Tobacco Regulation, Litigation & Advocacy at the University of Maryland School of Law in Baltimore, and 2007 was her first time visiting the Delaware beach area for a vacation, when she and her family stayed at Sea Colony. She said she had been considering writing to the town about the presence of so many smokers on the public beach when she first heard it was considering banning smoking there.
“My 8- and 11-year-old daughters were perplexed why someone would be smoking on the beach when it was such a beautiful day,” McNamara explained of her experience this summer, noting that the presence of smokers on the beach also held the potential to send an undesirable message to children who observe it.
Further, McNamara cited the litter created by some who smoke on the beach, saying it is considered the top form of litter on the planet when counted by sheer numbers of objects. In addition to being ingested by birds and other wildlife, McNamara said, “Toddlers have been known to ingest cigarette butts.” She said her family had come across a number of discarded butts while on the beach.
With that in mind, McNamara told council members that she strongly supported regulations on smoking on the beach, and she rejected suggestions that such regulations unfairly curtail the rights of smokers.
“They do not unfairly infringe on personal rights,” she said. “You have many restrictions on beach use. I would love to be able to walk my dogs on the beach,” she noted by way of example.
Moreover, McNamara said the smoking problem on Bethany’s beaches appeared to her to be atypical of other beach communities, such as the Outer Banks of North Carolina, where her family had previously vacationed.
“Bethany Beach would be the first in the Mid-Atlantic region to address this. You most certainly will not be the last,” she said, encouraging the council “to do something positive for the health and family-friendliness of the beach.”
Legal concerns minimized, health benefits raised
McNamara’s colleague Chris Bostic also came back to his sometime vacation spot in Bethany to speak on the subject. Bostic, also an attorney, is a clinical instructor with the Tobacco Control Clinic at the University of Maryland School of Law, where his focus is global legal and technical assistance. According to Bostic’s professional record, his recent work with student attorneys has included research into the possibility of a “right to smoke” under foreign and international law.
Bostic also serves as legal counsel to the Framework Convention Alliance (FCA), a confederation of more than 250 organizations from more than 100 countries dedicated to ending death and disease caused by tobacco, and has previously worked as a consultant for the Campaign for Tobacco-Free Kids and for the American Lung Association and Action on Smoking and Health. He is a founding member of the Tobacco Control Legal Consortium.
It was no surprise therefore that Bostic also expressed strong support for the town moving forward with a beach smoking ban, but he did acknowledge that council members might have some trepidations about the landmark move and set about to alleviate those feelings.
“You’re certainly not the first in the world to do this,” he assured them. “In California, most all of the beaches have banned smoking. Communities in New England have also done so, as have those in Amsterdam,” he noted, adding that Hawaiian officials are also working on beach smoking bans.
Bostic also challenged any claims that the town would see a negative economic impact if a ban were instituted, citing hundreds of studies on indoor smoking bans previously enacted statewide and elsewhere that recorded no loss of business — and in some cases an increase.
“If your business has gone to Ocean City with the indoor smoking ban, it would be unique,” he said, adding that only studies funded or influenced by the tobacco industry had shown any indications to the contrary.
Bostic said, in fact, that for every single smoker who might not come to Bethany Beach because of a ban, the town could expect four non-smokers who would applaud the move and might be more likely to visit.
As for the assertion that smokers have a right to light up, as a self-proclaimed card-carrying member of the ACLU, Bostic stated there is no constitutional right to smoke. And he assured the council that they should have no real concern about the town getting into legal hot water because of a decision to ban smoking on the beach.
“This has already come up in federal court, and the judges have said there is no right to smoke,” he said. “You will not be sued, and if by some chance you are, the case would immediately be dismissed.”
As for concerns about enforcement, Bostic said enforcement had not proven a problem in other municipalities that had banned smoking on their beaches. “It’s treated as any other ordinance,” he said. “Lifeguards will never be asked to scan the beach for smokers.”
And, on the health front, Bostic said a smoking ban would be beneficial, pointing to the same studies that Bethany’s Charter and Ordinance Review Committee had found so concerning and convincing during their research into a smoking ban, leading to their unanimous recommendation to pursue one.
“Second-hand smoke is not as dangerous outside as it is indoors,” he allowed. “But studies have shown that it would take 60 mph winds to completely dissipate smoke. … If you can smell it, it is hurting you.”
Bostic also noted the environmental effects of smoking and tobacco products, calling cigarettes “tiny toxic waste dumps” that contain thousands of chemicals, hundreds of which are toxic, and all of which collect in cigarette butts. Those toxins include carbon monoxide, DDT, arsenic, lead and more. More than 60 carcinogenic chemicals have been identified in cigarettes, he said.
Further, Bostic said he would be at the town’s disposal as it moves ahead with discussion and possible legislation instituting a ban.
Citizens weigh in for ban
Beyond the sometime visitors and admitted advocates, Friday’s public hearing also heard testimony from at least one citizen with direct knowledge of the health impacts of second-hand smoke, even outdoors.
Matthew Fishall’s family has owned a property on First Street for 10 years. He’s also a fourth-year medical student with plans to specialize in pediatrics.
“I’ve seen five children admitted to the hospital due to second-hand smoke at playgrounds,” Fishall said, noting that one of those children had needed to be intubated to restore breathing after their asthma attack and was kept in the hospital for two weeks after the episode.
Further, he noted the risks of second-hand smoke to those with coronary heart disease, emphysema and other chronic illnesses. “Any exposure can have a negative effect,” he said, noting particular vulnerability for children and the elderly — two of Bethany Beach’s largest and most cherished populations.
Ocean View business owner Bill Winkler expressed concerns about the impact of smoking on the area’s environment. A member of the Surfrider Foundation and operator of a business that sells metal detectors and other beachcombing equipment, Winkler said cigarette butts are a frequent find for him and his customers when they visit Bethany Beach.
“People do not carry-on/carry-off as they’re supposed to,” he said. “They use the beach as an ashtray.”
Year-round resident Karen Dixon, who has worked as a drug and alcohol awareness educator in the Philadelphia area, said she also supported a ban.
And resident Glen Dixon said he was concerned about smoke and litter. “I encourage you to follow through with this ban and keep this a child-friendly, vacation-friendly environment,” he said.
Jean Shaw, a 27-year year-round resident, declared herself “a beach person,” noting she can be found on the town’s beach five days of the week from April through October. “I do resent people smoking around me,” she said. “There are a lot of people who do throw their butts in the sand.” She noted that butts are often washed out with the tide, where they can be ingested by turtles, birds and dolphins.
Opposition to ban also heard by council
One-time Planning Commissioner Phil Boesch went into his statement to the council recognizing he was the first at the hearing to state opposition to a ban.
“As usual, I’m the one on the other side,” he said.
But Boesch, rarely one to mince words, had strong feelings about the imposition of new restrictions on the town’s beachgoers.
“I’m hearing our friends from the University of Maryland tell us how to operate our beach,” he said. “They don’t live here, and they don’t have to put up with it,” he added. “I came here because it was a nice, friendly, relaxed place.”
Pointing to ongoing complaints about the height of the town’s new beachfront sand dune, Boesch also cautioned council members to take care in making more changes in the town. “Be careful what you wish for,” he warned.
“I’m not a smoker, but I object to you telling me I can’t smoke outside. They smoke because they enjoy it. Why should I take that enjoyment away from them?” he asked.
For those who object to smoke, he advised, “If you don’t like it, walk away. … If you don’t like the smell, move.”
And to the litter issue, Boesch questioned the efficiency of the town’s beach cleaning methods if they don’t pick up cigarette butts. Town Manager Cliff Graviet said he felt the equipment would be unable to specifically capture something that small without becoming cumbersomely loaded with sand.
“The second-hand smoke claim, in my opinion, is a bogus argument,” Boesch concluded.
Perhaps the most intriguing speaker of the Nov. 16 public hearing was young Daniel Vasquez, who followed his father, Raymond, to the podium and in opposition to the ban.
The senior Vasquez had stated his agreement with Boesch’s points, adding that a complete ban was going to far when it included areas beyond playgrounds, schools and daycare centers. If Disneyland can have designated smoking areas, he said, why not a Delaware beach town. “People should be able to get away from second-hand smoking in places they must go,” Raymond Vasquez acknowledged of indoor smoking bans, but outdoors, he said, a ban amounted to discrimination.
Daniel Vasquez, whom his father said had asked to speak after overhearing some conversations prior to the hearing, argued that a ban would actually be detrimental to children and families. “Parents would have to leave the beach and take their children with them,” he said, noting that his father does not litter and puts his extinguished butts in his pocket to dispose of later.
Mary Fisher, a two-year full-time resident and smoker, said she represented a number of her friends who opposed the ban but who were not comfortable speaking in public.
“I agree with a lot of the non-smokers’ issues,” she admitted, allowing that smoking bans indoors and on the boardwalk were a good idea. “I could go along with not smoking right there,” she said. But for a wider ban, she said, “My rights are being infringed upon. I’m careful where I smoke.”
Fisher said she was careful to take all her butts with here and even picked up other litter on the beach. Not so considerate, she said, are other beachgoers, who do things like leave deep holes for others to fall in.
“As far as I know, this is the United States and all kinds of people live here. When you’re out in public, all kinds of things are going on,” she said. “I don’t feel that it’s fair that non-smokers get all the rights. I won’t believe for an instant that everybody cannot get along on that beach. They’re not the only ones with rights.”
Former Town Council Member Jane Fowler, a non-smoker, also stepped up in opposition to a ban, joining in a recent chorus of criticism that the council is going too far in adding new restrictions to the town.
“This is nit-picking. It’s almost a police state. It’s too much,” she said. “This is a knee-jerk reaction to the health thing.” Fowler said she, too, would go along with a ban on smoking on the boardwalk, but not on the beach, “and, for God’s sake, not in the ocean.”
“Please don’t do this,” she concluded. “Too many people are saying this is too nit-picky.”
Suzanne Evans, a three-year full-time resident and longtime property owner, agreed. “I’m concerned about the whole idea of a ban. What’s next?” she asked. “Will cell phones be taken away?”
Lifelong resident Cecilia Lewis also stated opposition to a ban. “The Town of Bethany Beach is overstepping its bounds in this,” she said, citing concerns over how the town could enforce an ordinance banning smoking on the beach.
Joan Thomas, a seven-year full-time resident and former smoker, said she couldn’t support a ban either. “I can’t see denying someone that pleasure,” she said, also questioning enforcement issues.
“I wouldn’t want to see a sign on the beach,” she said, adding that the move could lead to citizens feeling they were being called up on to enforce the ban themselves. “They will tell me it’s none of my business,” she said of smokers who might be confronted. “This is too controlling. I don’t want to police the beach.”
Full-time resident Dennis Cleary, on the one hand, praised the notion of a ban as a “brilliant, bold idea,” but he said the more he’d thought about it, the more concerned he got with the possible consequences of a ban, which could be difficult to enforce with far-away visitors who wouldn’t necessarily be carrying identification on the beach.
“I don’t believe in creating ordinances that are unenforceable,” he said. “I do support a drastic decrease in smoking.” Cleary suggested the council consider testing an alternative to a formal ordinance, instead posting signs discouraging smoking on the beach and then measuring the results before taking any further action.
Council members will continue to consider the idea of a smoking ban for the beach, boardwalk, parks, playground and the oceanfront in the coming weeks. The initial aim of research into the idea was for legislation to be in place by the summer of 2008, but council members have yet to voice consensus on whether to pursue legislation at all.
Some South Bethany officials have also expressed interest in pursuing a smoking ban on their beach but have said they will allow Bethany Beach to lead the way with research and legislation before moving forward with their own legislative process. The item is on the council’s agenda for discussion at a Nov. 26 special meeting/council workshop at 7 p.m. at the South Bethany town hall.
The Bethany Beach town council is unlikely to address the issue again before January, having agreed, after a fashion, not to hold a regularly-scheduled December council meeting. The council could, however, continue discussion on the smoking ban in a planned December council workshop and act upon the issue sometime in the future.