The Flagler Beach City Commission Thursday is set to approve banning smoking almost any tobacco product in any way on beaches, in parks and on the city’s boardwalk, starting this weekend. Enforcement will be an issue: there are no intentions to police the ban, which does not extend to the beaches under county jurisdiction. The ordinance is silent on vaping and marijuana products.
The ban applies to cigarettes, filtered cigars, pipes, or any device used to inhale smoke from burning tobacco products. It will extend to the beach, public parks, and the boardwalk “unless such activity occurs in an area designated for smoking or tobacco use by posted signage.”
Unfiltered cigars are exempt from the ban. The reason: the ban is primarily targeting the discarding of cigarette butts, which take eons to biodegrade and can harm wildlife. Unfiltered cigars have no such synthetic butts. Their remnants degrade more rapidly.
The ordinance is silent on marijuana, but that doesn’t mean beachgoers may smoke pot on the beach, even though, as City Commissioner James Sherman noted, “I’m sure people smoke pot on the beach.” Smokable marijuana has been allowed since 2019 for people with medical marijuana cards. But the law prohibits smoking pot in public places. That ban has always applied to Flagler Bach’s shoreline and public parks, and still will. (See a briefing on the smoking of medical marijuana here.)
Vaping is a different issue. It’s fully exempt.
“I am working specifically within the language that the statute authorized,” City Attorney Drew Smith, referring to the 2022 law that gave cities and counties authority to ban smoking along the state’s 825 miles of beaches and in 13,000 parks or recreational facilities.
The Legislature first approved an indoor smoking ban in 1985. Voters 20 years ago approved a constitutional amendment broadening restrictions in places such as restaurants, bars, workplaces and certain other locations. The 2022 law removes the word “indoor” from the “Florida Indoor Clean Air Act,” now that bans can extend outdoors. In 2018, another constitutional amendment extended indoor workplace bans to vaping. But the vaping ban neither in the constitutional amendment nor in the 2022 law applies to public recreation areas.
“Because the legislative language was specific to tobacco, for now, I’ve tracked it,” Smith said. “The authorizing legislation says tobacco products.” He added: “If you ever have a constituent who you’re trying to help understand how powerful certain lobbies are in this state, just show him this legislation or this ordinance, where we have to exempt out unfiltered cigars, because a certain lobby made sure that the product was protected from this.” But City Clerk Penny Overstreet clarified about cigars: “The theory was, they don’t have a butt, it burns all the way to the end.”
City Commission Chairman Ken Bryan suggested the ban and won consensus from the commission in early September. City Attorney Drew Smith drafted the five lines to be added to the rules and regulations ordinance controlling beaches and recreation facilities.
“A lot of this stems from a lot of our experiences on the beach and the parks, and also because the legislators gave us the ability to be able to pass this particular ordinance within the municipalities. From what I can tell I don’t think the county has any pleasure or desire to do anything of this nature, but we control most of the beach here in Flagler Beach and all of us have personally been out on the beach to pick up cigarette butts, and also been exposed to some of the secondhand smoke of individuals that choose to use product. But at any rate in consideration for the health of the people and our visitors, we brought it forward. So here we are.”
“Y’all know I never agree with about anything. But I’m going to say Yeeeees to this. Yeeees,” Commissioner Eric Cooley said. Cooley owns the 7-Eleven downtown, at the beach, and sells cigarettes that get smoked on the beach, but nevertheless favors the ban.
“There’s nothing worse than standing under the A frame at the pier and being smoked out by a bunch of cigarettes in the morning while you’re trying to host a beach cleanup,” Mayor Suzie Johnston said. “I’m literally watching people who smoke drop cigarettes, and then another person come behind them to clean up. Can’t fix stupid.” But, the mayor asked, how would the ordinance be enforced, and “are we even going to make an attempt to enforce it? That’s my biggest question on this. We have lots of rules in this city. That’s all we have are rules. We don’t have enforcement.”
The city has a similar anti-littering ordinance, but doesn’t enforce it. On the other hand, its 10-year-old ban on bonfires between May and October has been respected, likely because it’s difficult to hide flaming lawbreaking, though the ordinance, as Commissioner Jane Mealy noted, does not spell out the months when fires are banned. She noted several inconsistencies in the ordinance, whose language the commission had not examined in a while. For example, it has a broad, vague ban on alcohol anywhere in parks and beaches, although alcohol has not, in fact, been banned from the city’s beaches. Alcohol may not be sold on the beach. The commission will be clarifying those clauses.
As for enforcement of the smoking ban, it falls under the city’s code enforcement powers, but no penalties are spelled out.
“You have peer pressure, and also pure consideration and the respect of the law itself,” Bryan said. “A lot of is going to be educational, as far as I can tell, and hopefully the word gets out. There’s always going to be someone that’s going to throw a McDonald’s bags on the street. There’s always going to be people that are going to smoke where they’re not supposed to smoke. And I’m sure that there will be some issues with enforcement.”
“You can see what San Francisco did their streets are smoke free,” the mayor said.
San Francisco bans smoking “outside entrances, exits and operable windows and vents of all buildings,” and bans it even in apartment buildings, hotels and motels, but not on streets. The ban is primarily directed at secondhand smoke. It does not apply to marijuana, since smoking marijuana in public is prohibited, and a ban on smoking it in one’s apartment would have removed the only place residents could legally smoke it. In Flagler Beach, smoking marijuana is prohibited without a medical marijuana card.
Cooley said the new ordinance language is “a starting point” only, with no expectation that police will be issuing tickets for violations. “We put the structure in place to get this started,” he said. “From there, later, we kind of start figuring out how do we get our arms around this.” He mentioned an education campaign, drafting the county’s tourism division to help, angling at a green-beach sort of message.
The County Commission has shown no interest, so far, in applying such a ban to its beaches and parks.