Bethany Beach Town Council members voted 5-1 on Friday, Feb. 15, in favor of drafting legislation that would ban smoking year ’round in the town’s parks and playgrounds, and in its boardwalk bandstand area at Garfield Parkway.
Smoking would also be banned on the rest of the boardwalk and on the town’s beach during the summer season, from May 15 through Sept. 15, with the exception of designated smoking areas at the eastern edge of the new dunes. The seasonal beach ban includes “wet” areas of the beach — its swimming and fishing zones.
The compromise legislation, with its partially seasonal ban, was favored on a second vote taken by the council Friday, after the council had tied 3-3 on the question of a year-round ban for all of those areas. With the 5-1 vote on the compromise, the council directed Town Solicitor Terence Jaywork to draft the legislation, which is to be brought before the council for adoption at a future meeting.
Violators of the ban would get a warning first, a $100 fine for their second offense and a $500 fine for each subsequent offense.
Vice-Mayor Tony McClenny, who championed the ban in its stricter form and introduced it for the vote last Friday, said he hoped the ban could be in place by May 1 of 2008, or June 1, 2008, at the latest. Councilman Tracy Mulligan was the sole council member to vote in opposition the ban on Feb. 15. Councilman Steve Wode was absent.
“My hope is that after eight months of consideration and discussion … we can bring this issue to a close this evening,” McClenny said in introducing the motion. “We either believe second-hand smoke is harmful to the public health or we don’t,” he added, referencing challenges to the whole notion from at least one citizen.
Citing increasing evidence that even outdoor smoking can have harmful effects on nearby non-smokers and an increasing trend nationwide and internationally toward the banning of smoking indoors and outdoors in public places such as beaches, McClenny said, “I believe we should do the same … and follow the lead of communities that have had the foresight to make this decision.”
McClenny noted that more than 90 percent of the response the Bethany council received about the proposed smoking ban had supported it.
Of about 300 recorded responses from the citizenry at large — including some of the 900 citizen and visitor e-mail addresses in McClenny’s personal records — 33 had responded that they opposed any sort of ban; nine supported a ban only in the town’s bandstand area; four supported a ban only on the beach; six supported bans on the beach and at the bandstand; and 15 supported a ban at the bandstand but specifically opposed a beach-wide ban.
More than 250 responses had favored bans for all the proposed areas, McClenny said, saying those who had opposed the idea were just a small percentage of all who had responded.
McClenny noted that his research into the issue since it was first raised with the town and handed to the town’s Charter and Ordinance Review Committee (CORC) last June had only served to make him an even stronger believer in the necessity of a ban. But other council members were not fully convinced.
Compromises suggested, rejected
Councilman Joseph T. Healy — as he had at the council’s January workshop — proposed that the ban be a voluntary one, at least in its first year, with signage to encourage citizens and visitors not to smoke in those public areas. “I’m concerned about the enforcement issue,” Healy said.
“We’re all concerned with the enforcement issue,” McClenny acknowledged. “But voluntary programs of this nature has been proven not to work,” he countered, citing his research into communities that had tried such steps.
Healy additionally proposed a time-limited ban, such as between 8 a.m. and 11 p.m. during the summer season. But council members were skeptical about the town’s ability to enforce a ban that would change from hour to hour.
“It’s easier to have a rule that is year ’round and all encompassing,” McClenny said. “There’s no question when it starts and when it stops.”
McClenny pointed to his primary focus in supporting the ban. “We need to show children that smoking is not a good thing for them to experiment with or to pick up. Health experts all tell us it’s dangerous,” he said.
Councilman J. Robert “Bob” Parsons’ earlier suggestion to create smoking areas at the front foot of the dunes had been included in McClenny’s original motion as part of an early compromise on the issue, but even that change didn’t fully sell the idea of the year-round ban to the council members.
Mulligan noted some opposition stated at the public hearing the town held in November. He said he also had some enforcement concerns — especially with the town’s transient population of part-time residents and visitors.
“This will pit neighbor against neighbor,” he predicted. “I can’t support this,” he added, suggesting that if littering with cigarette butts was a major issue the town wanted to tackle, it should do so through enforcement of existing littering ordinances.
Mulligan said he was also worried about other indirect effects of the ban. “This will have the effect to drive smokers into more congested areas,” he said, pointing to the sidewalks and other public areas next to the ban zones. “I didn’t see it as the role of this council to change it,” he added.
While he said he supported a ban at the town’s nature center, downtown playground and other child-friendly park areas, Mulligan said he felt such a move should be focused on adding signage and receptacles to encourage responsible smoking, to avoid becoming seen as a town with strict rules.
“That’s not to say that we’re not going to ban it at some point in the future,” he said. “But let’s see if we can reduce it with signage and receptacles.”
Council Member Jerry Dorfman, a 30-year smoker who quit 25 years ago, said he disagreed strongly with Mulligan about the impact of a ban on the town’s resort reputation.
“Once Bethany is known as a place where you don’t smoke on the beach, our image as a family resort will be enhanced,” he predicted. “This is a health issue. I can’t buy the argument that we would become known as a place that is too strict.”
McClenny referenced a recent state-wide ban on smoking in indoor workplaces, which had opponents arguing that the ban would cost businesses customers. “More of us who wouldn’t go to a bar because of the smoke now go there and the businesses have new customers.”
Appearing shocked at the final conclusion Mulligan had reached on the issue after he had expressed indecision in January, McClenny said firmly, “I believe you’re entirely wrong on this.”
Meanwhile, Mayor Carol Olmstead dismissed concerns about enforcement of a ban. “Enforcement is not an issue at all,” she said. “Laws are made because they’re in the best interest of the public.” She said 100 percent compliance and enforcement was not to be expected, as with many laws. “If we pursue a ban, most people will observe it. We have to have an ordinance for the few that don’t.”
While he said he supported a ban on smoking on the beach, Parsons also proposed a compromise to the year-round ban McClenny championed, suggesting the kind of seasonal ban that the council eventually agreed on Feb. 15 to pursue. It wasn’t an immediate hit and failed on a 2-4 vote with only Parsons and Healy voting for it.
Parsons’ amendment, McClenny said, “is going to neuter what we’re trying to accomplish. We have to look at this as a health issue and nothing else. That is how I’ve come to see it over the last eight months.”
The council then turned to McClenny’s original proposal for a year-round ban in all of the areas mention — except for designated smoking areas at the foot of the dune — but came up evenly divided, 3-3, with McClenny, Dorfman and Olmstead favoring the ban and Parsons, Healy and Mulligan opposed.
Citizens champion ban, compromise
Stunned silence greeted the tally as people realized the tie vote meant the failure of the ban. Then some of those in attendance at the meeting objected vehemently to the failure of the measure.
“It’s incredible that we can’t have four people on the council who want to ban smoking,” one woman stated emphatically, promising future consequences for council members who voted against the move and sought re-election in the future.
Resident Joan Gordon then asked the council to reconsider Parsons’ compromise amendment, which allowed for a summer-season-only ban on the beach and larger boardwalk. It was a suggestion the council eagerly took up in the face of the failure of the original proposal.
“I’ve always supported a ban,” Parsons said in response to questions about why he would vote in favor of a ban. “Addicts will find a way to do what they need to do,” added the longtime smoker, who noted he does not himself smoke on the beach. He said the compromise measure would be easier for them to comply with.
Healy was apparently in agreement, also shifting his vote to support the ban in its compromise form. The council voted 5-1 for the compromise, with Mulligan the only one opposed.
McClenny thanked those in the audience who had suggested the council reconsider the compromise instead of accepting the failure of the original ban. He also thanked Parsons for offering “a middle ground and opportunity for compromise.”
“It’s better than nothing,” Dorfman commented after the meeting.
With the vote, the council will send the ban on to Jaywork for drafting as an official ordinance. The ordinance, once formally introduced, will require a second reading before it can be voted upon again by the council and adopted into law.
Mulligan said Saturday that with the 5-1 vote he didn’t expect any change in the outcome of the vote to come at that time, even with Wode potentially in the mix. The council has just enough time to get the ban adopted before the start of the 2008 summer season, assuming it can be drafted in short order.