Boca decides not to jail e-cigarette users, for now
February 25, 2015
Karl Dickey
West Palm Beach Libertarian Examiner
Last night, February 24, 2015, the Boca Raton City Council was deciding whether to put in place a new ordinance to fine and jail residents and tourists if they used an e-cigarette in most public places, including private businesses. Proposed ordinance 5296 was ultimately ?tabled? until at least the Florida legislature session ends in May or until new science comes out suggesting e-cigarette vapor is harmful to others.
Had the council voted for the ordinance, those found to be vaping e-cigarette liquids could have been fined up to $500 and/or could have spent up to 60 days in jail. According to language in the proposed ordinance, it also would have put the Boca Raton Police Department in a difficult situation in trying to determine which vapor was using a nicotine product and which was not.
The action also would have taken another freedom away from business owners to decide for themselves if they wished to allow vaping or deny vaping in their establishment. Boca Raton Mayor Susan Haynie said last night that she had spoken with a prominent restaraunteur yesterday on the subject and he would support the ordinance because he finds vaping annoys some of his customers. What this Boca Raton business owner apparently fails to realize is that he has the ability to ban vaping in his businesses today, without the threat and force of a government imposed ban. The proposed ordinance would have taken that right away from business owners throughout the city. There is nothing today that is keeping any business owner from banning vaping in their business.
The Region 13 representative from the Libertarian Party of Florida spoke at the meeting explaining that the proposed ordinance would take yet another right away from businesses and individuals when no health threat has been proven. The proposed ordinance was introduced by Deputy Mayor Constance Scott after smelling someone vaping near her in a public place and was reportedly annoyed enough to put a stop to it through government force.
Boca Raton City Attorney Diana Grub Freiser questioned whether people would actually be jailed for vaping in Boca Raton. Referring to Section 1-16 which describes the general penalty of the city’s code, she said, ?They are just existing provisions, they are in the code, I am not saying they are not in the code. As a practical matter and as a legal matter, we have never, nor would we ever, and I am not aware of any municipality that would ever seek jail time for a municipal code violation.? Which begs the question, if the city would never jail someone for violating the city ordinance, then why have the language in the ordinance. The city may want to consider changing the language to something less harsh for its code violations. She went on to say that jailing someone would be unconstitutional, which raised even larger questions that, according to her, the City of Boca Raton has unconstitutional penalties in its municode.
Only one person spoke in favor of the ordinance, with all others of the public speaking against it. The person that spoke against it focused his opposition due to his parents passing away due to cigarette smoking. April Davis spoke that the proposed ordinance would be a step backward as the general use of e-cigarettes have not been proven harmful and her use of them has helped her stop regular cigarette smoking. She said, “The FDA to date has failed to find any harmful levels of carcinogens or anything else. The propylene glycol, I am told, is actually something that is pumped into the air vent systems at hospitals in order to keep it more sanitary.” Deputy Mayor Scott had suggested earlier in the evening propylene glycol was one of the toxic substances emitted from e-cigarette vapor. Propylene glycol is also used in various edible items such as coffee, ice cream, whipped dairy products, beer and soda. Davis continued, “I think this [proposed ordinance] would deter many residents, in a fearful manner, because you hear $500 fine, 60 days in prison, and although in theory we know that is not going to happen ? I think the fear of that would be a detractor in getting people to quit smoking. I know many of the people I encounter, in my age group, age 50-75, who have been smoking [regular] cigarettes, which we know are harmful, and this is the first thing they have discovered as an alternative.” Davis said e-cigarettes helped her kick her regular cigarette habit and voiced her concern the proposed ordinance would keep others from doing the same.
Individuals in the e-cigarette industry spoke against the proposed ordinance offering multiple studies to show the net benefits of using e-cigarettes over regular cigarettes. Erika Weiss, owner of an e-cigarette store in Boca Raton and others throughout Broward County said, “It [the proposed ordinance] would be a giant step backwards in terms for public health. The tobacco control campaigns have done a wonderful job in terms of moving mainstream combustible cigarettes out of the mainstream, but electronic cigarettes different than traditional cigarettes. They do not emit smoke. There is no second hand smoke. There is no negative effects on the public from second hand vapor, and I can cite the studies.”
So, for now, Boca Raton residents and tourists can continue to vape without being concerned about being thrown in a cage by a Boca Raton Police officer. The proposed ordinance has been tabled which means that it is still pending and can be brought up at a future city council meeting.
