Town commissioners have decided not to ban smokeless tobacco products in town-owned parks, a regulatory move that would have propelled the Orange County town onto the front lines of the expanding war against tobacco use. Last week, town commissioners opted instead to approve an ordinance that prohibits only the use of traditional tobacco products that are lit and burned.
Hillsborough’s park smoking ban takes effect Jan. 2, 2010. “All designated parks owned by the Town of Hillsborough are Tobacco Free Zones,” the ordinance reads. “No person within a park boundary may possess a lighted tobacco product, including but not limited to cigarette, cigar, or pipe.”
The new ban will be enforced with escalating fines, but the ordinance doesn’t define who will do the enforcing, according to Town Attorney Robert Hornik. “It could be the police or code enforcement officers I suppose,” Hornik said.
Smokers caught lighting up in a Hillsborough park will be assessed a $25 fine for the first violation. Breaking the rule a second time within a 30-day period will result in a $50 fine. Those caught ignoring the ban three times or more within 30 days will be fined $100.
Commissioners had been considering a broad tobacco ban since July, when Hornik presented a draft ban that covered products that are both lit and chewed. In August, Hornik said he hadn’t yet decided on whether to keep the reference to chew tobacco but that one or two board members were interested in the idea.
On Sept. 14, Hornik presented for approval a ban that included all tobacco – smoked and smokeless. Hillsborough Mayor Pro Tem Michael Gering asked that the reference to smokeless products be removed. Gering said once he explained his concerns to board members, there was no objection to his request.
“The only rationale that any of us discussed for supporting the ordinance for smoking tobacco was based on health concerns — primarily secondhand smoke for children — and second, on the additional maintenance costs that our staff had already identified for cleaning up cigarette butts,” Gering said. “Neither of those reasons applied to smokeless tobacco, so I thought it was going too far for the town to try and legislate against that part of the ordinance based on that reasoning. And nobody could offer any additional reasoning.”
Gering said he was also concerned about protecting personal liberties. “We seem to be losing them constantly, almost daily I think. I thought we were intruding in an area that we didn’t really have any business going.”
Thomas Firey, managing editor of the Cato Institute’s Regulation magazine, described the prospect of banning the use of spit tobacco as “very-hard-to-justify territory” that is “even more remarkable” than the push to eliminate smoking in parks. “This would definitely be moving into new, fresh territory.”
Firey said he can understand someone might not like the aesthetics of spit tobacco, or that a person might want to change someone else’s behavior. It’s another thing altogether, he emphasized, when elected officials use the power of government to impose their own rules on personal behavior.
State law won’t stand in the way of any North Carolina town that seeks to ban smokeless tobacco on park grounds, according to Elisabeth Constandy of the Tobacco Prevention and Control Branch of the North Carolina Division of Public Health. Although the state’s tobacco laws only reference “smoking” in their language, “there are no laws in place that restrict local governments authority to regulate smokeless products,” Constandy wrote last month in e-mail.
On Jan. 2, North Carolina’s newest tobacco law will ban smoking in restaurants and bars. Constandy said the law also expands local governments’ authority, giving them power to regulate tobacco use on all municipal exterior grounds, whether they own and operate the property, or own it and lease or rent it to someone else.
As of mid-August, no municipalities had contacted Constandy with questions specifically about smokeless tobacco, but she regularly receives inquiries from local governments about the scope of their overall authority.
Donna Martinez is a contributor to Carolina Journal.