Official Lights Up Smoking Ban Debate

By Elaine Van Develde

It's no smokescreen. There will likely be at least 'no' vote to try to smolder the Fair Haven smoking ban ordinance.

That's what Mayor Ben Lucarelli said at the end of a short debate on the subject at Monday night's Borough Council meeting.

Though the ordinance has only been drafted and the vote is still a future prospect, Councilman Rowland Wilhelm has sparked some debate about what he believes is not a constitutional move to ban smoking, except on impervious surfaces away from playing fields, in public parks  in the borough.

Councilman Robert Marchese, who also sits on the new Rumson-Fair Haven Municipal Alliance to Prevent Substance Abuse and is an attorney, drafted the ordinance after many public discussions on the issue.

"This is a severe overstep of governmental powers," Wilhelm said when council workshopped the draft ordinance. "Is it even constitutional?"

Wilhelm questioned whether or not there would be an hourly restriction  imposed on smokers, such as only when games or other activities are in progress. He also asked if there would be an exemption for those using vapor cigarettes in an effort to quit.

Those provisions were discussed as possible inclusions before the draft, but Marchese said he had taken them out, adding that he, himself, is a major proponent of constitutional rights.

Marchese also said that, yes, the ordinance is constitutional because it restricts smoking in publicly owned places, or places owned by the borough and the governing body is acting on behalf of the borough and its residents.

"Only because it's borough property would I say it's constitutional," he said. "We are the property owners. In terms of what we are talking about here, it's not too invasive."

Smoking has been banned in borough-owned buildings and on all of school property for some time now, Adminstrator Theresa Casagrande noted.

"Yes, in enclosed spaces and where you have little kids marching around … I get that," Wilhelm said.

He raised the notion that he feels if someone, for instance, decides to smoke a cigar while walking their dog at night in, say, Fair Haven Fields, they should be able to do so.

No, they should not, Marchese said, clarifying that if they want to do so in their own yard or outside of a park, it's a different story. But, he said, it's also a fire safety issue.

"I don't want people smoking in the (Fair Haven Fields) Natural Area," Marchese said. "I don't want people smoking in the Bird Sanctuary. I live across the street from a park and I've smelled smoke coming from that park at 11 at night more than once."

That, Wilhelm said, is behavior he doubts any ordinance will ever stop. Continuous enforcement, he added, is just not possible, considering police do not have the manpower to patrol one area for one ordinance's violations.

Realizing that reality, that he and other council members have acknowledged in the past, Marchese said that it's just good to have the ordinance in place to "indicate the desire of the council."

no ordinance is going to stop, unless police happen to catch the violators every time it happens, which is difficult, since they cannot be expected to man one spot continuously for one ordinance's enforcement.

Wilhelm questioned whether or not the paths in Fair Haven Fields, which are coated with quarry dust, might be considered impervious.

No, officials said.

Impervious surface, as it reads in the ordinance, Borough Attorney Salvatore Alfieri said, "is surface that has been compacted or covered with a layer of mat so that it is highly resistant to the infiltration of water."

Realizing that he is in a minority in his opinion, Wilhelm stuck to his theory of unconstitutionality and reiterated that, no, he's not a smoker.

"It's probably safe to say that there will be at least one 'no' vote on this ordinance when we get to that point," Lucarelli, who does not vote, said.

The ordinance will be up for introduction only at the Sept. 9 meeting. It will go through public hearings at meetings following that and then be up for a vote, probably at the end of September or October, officials said.