OCEAN CITY — One week after a discussion of the resort’s smoking ban reached an impasse at the committee level, the debate spilled over to the Mayor and Council meeting on Monday resulting in a tightening in the direction on enforcement.
Three years ago, the council approved an ordinance banning smoking on the Boardwalk and smoking on the beach except in certain designated areas. In the first year, the idea was to educate residents and visitors on the law change and issue warnings and direct them where to legally light up.
In the second year, the council issued a directive to step up enforcement with the learning curve over and the number of citations written by Ocean City Police Department (OCPD) officers late last summer spiked. Entering year three, resort officials have been discussing the direction to take on the smoking ordinance with an eye on stricter enforcement.
The debate has centered on the difference between zero tolerance in the third year with no warnings and citations issued or some level of discretion by the police officers. While most agree there should be zero tolerance for those who deliberately flaunt the law, others believe there should be some discretion for those who are unaware of the ordinance and comply after being told to put their cigarettes out.
The newest round of debating began at the police commission level last week with no action taken and no recommendation forwarded to the full council. On Monday, the council took up the issue again, and after a spirited discussion a compromise of sorts was reached resulting in a stated policy of “consistent enforcement with discretion.”
Getting to that compromise wasn’t easy, however. Councilman Tony DeLuca broached the subject during a review of the police commission minutes from last week. DeLuca said in year three there should be strict enforcement of the smoking ordinance.
“This is the third year,” he said. “The first year was to educate and the second year was about strict enforcement with discretion. The No. 1 complaint we receive is the lack of enforcement of the smoking ordinance on the Boardwalk.”
DeLuca said there were readily available alternatives for smokers on the Boardwalk and enforcement should be stepped up this year.
“They can go east onto the beach in the designated areas, or they can go off the Boardwalk to the west,” he said. “With the Adopt-Your-Beach program, the No. 1 thing they pick up is cigarette butts. I think the learning curve is over and we need to change the behavior on the Boardwalk and beach with stricter enforcement. We keep on going with discretion and discretion, and we’re not changing the behavior.”
However, Councilman John Gehrig said discretion needs to continue to be a vital part of the enforcement efforts on the smoking ban.
“I fundamentally disagree,” he said. “With the professional police officers we have, they should be able to use some discretion. Thank goodness they have some discretion with speeding because I don’t get a ticket every time I go 36 mph in a 35-mph zone or 42 mph in a 40-mph zone.”
Councilman Wayne Hartman, who championed a zero tolerance stance during the police commission meeting last week, said the smoking ordinance was in danger of becoming just another law on the books that isn’t consistently enforced.
“Why do we pass all of these ordinances and then not enforce them?,” he said. “We need to be more direct.”
Hartman said stricter enforcement could come with increased and more prominent signage. He said the current “no smoking” signs tend to get lost in the rest of the sign clutter on the Boardwalk.
“All of the signs blend in,” he said. “The electronic signs really grab their attention and we can get the message out with them. When you walk the Boardwalk, at some point you almost always walk behind the tram. Why not get more signs on the back of the trams and signs on the backs of the lifeguard stands?”
Council Secretary Mary Knight last week advocated for stronger enforcement coupled with a better educational awareness program and continued discretion by police officers. She remained dedicated to those positions on Monday.
“I don’t think we can expect not to use any discretion,” she said. “If somebody comes into town for the first time and lights up on the Boardwalk, I would just hate that we become that intolerant that we just issue a citation without warning. I don’t want the visitors to have that bad taste in their mouth.”
Mayor Rick Meehan said he believed police discretion should remain a vital part of the smoking ban enforcement.
“Both sides are compelling,” he said. “There is a fine line here. There is a difference between no tolerance and enforcement. No tolerance is difficult. I think when they see somebody smoking, they should remind them of the ordinance and tell them to stop. If they light up again, then they issue a citation. That’s the way I see policing. Strict enforcement also includes advising them of the ordinance.”
Gehrig said he was somewhat incredulous that the council was still debating how to enforce an ordinance that has been on the books for three years.
“We have an ordinance that we voted on, and now we’re back here talking about how to enforce it,” he said. “I’m a little blown away by that. The chief said 95 to 98 percent are compliant once they are told about the ordinance. Now, it seems like we’re saying we don’t believe the chief.”
Meehan said that 95 to 98 percent compliance rate applied only to those who had been advised by police on the Boardwalk and beach about the smoking ordinance.
“That means 95 percent of the people who are engaged are compliant,” he said. “The problem is not enough people are engaged. If we make it clear we want this addressed, that’s what’s important to me. We want our officers to know this is a priority for us.”
For his part, OCPD Chief Ross Buzzuro said the department sought guidance from the council on the direction for the smoking ban enforcement. He reminded the elected officials last year they issued a mandate to step up enforcement starting in late July.
“This issue is more than meets the eye,” he said. “It’s evident the ordinance is policing itself when you look at where we were and where we are now. Last July, we had a mandate to enforce the ordinance strictly and we began writing citations. We issued less than 10 citations before July and 79 after we received the mandate to strictly enforce it. Of the tens of thousands of visitors that traverse the Boardwalk, the percentage is really miniscule.”
Buzzuro agreed the $100 citation sends a mixed message to some recipients. Some feel the hit on their wallet and heed the ordinance, while others feel it is another way they are getting whacked for more money while on vacation.
“For every action, there is a reaction,” he said. “The fine is $100. When that fine is issued, it sends a message. Is that message effective, or is it counter-effective?”
DeLuca said the discussion was by no means an affront to the efforts by the police department, but rather that he merely wanted to see stronger enforcement in year three.
“This council made the decision to strictly enforce it,” he said. “I do have the utmost respect for the chief’s recommendations. The first year was to educate and the second year became all about enforcement. Now it feels like we’re backing off that.”
Council President Lloyd Martin related the story of just last week when he was walking on the Boardwalk and observed an individual smoking who walked onto the Boardwalk without putting it out.
“An officer reminded him of the ordinance and he put it out,” he said. “He was walking and talking with friends and probably didn’t realize he hadn’t put his cigarette out. When you see someone, let them know. If they don’t comply, then issue a citation. Sometimes, it’s not the people who are doing it, but the people who knowing they are wrongfully doing it. I’m not going to vote to take away discretion from police officers.”
Hartman agreed there were gray areas when police discretion was appropriate.
“Any time there is an ordinance, there has to be enforcement,” he said. “For the person who just got here and didn’t know, use discretion. For the person who has been here three nights and has seen the signs, they know and there should be a citation issued. I think there can be enforcement with discretion. When I say enforcement, I don’t necessarily mean zero tolerance.”
Gehrig said he wouldn’t want to see police officers patrolling the Boardwalk to become so focused on smoking enforcement that they lost sight of the larger picture.
“I don’t want our officers looking only for smokers or somebody who pulls a lighter out when there are so many other things going on,” he said. “Discretion is part of everyday police work. Let them do their jobs.”
Hartman was taken aback, he said, with the small number of citations issued through the first half of last summer before the directive to step up enforcement was issued. He bounced the debate back to the speeding issue Gehrig referenced.
“Nine citations by the end of July? That’s a lot of discretion,” he said. “We’ve talked about speeding earlier in his discussion and about going 38 in a 35. How many of those get warnings?”
After considerable debate, the council agreed to move forward with a policy of “consistent enforcement with discretion,” which is not remarkably different than what was in place last year. There was a motion for “aggressive” enforcement, but the council agreed that language might be too strong. Hartman said the proof would be in the pudding after another summer in the books.
“Hopefully, we’ll see an improvement,” he said. “The cigarette butts will be a tell-tale sign on how effective this has been. I guess we’ll have another year of learning, unfortunately.”
Meehan said the final product was the result of a good debate and sharing of ideas.
“This is an example of government at work,” he said. “Everybody shared their ideas and came up with what I think is the right decision.”
