Since it's passage in November 2011, only one person has received a citation for smoking on Gulfport Beach: attorney Andy Strickland.
Strickland says that he deliberately tried to get a ticket, informing the city in advance of his plans to smoke in violation of the law, so he could challenge the charge in court.
Strickland believes that the ban is illegal and unconstitutional.
According to a Florida Statute, the regulation of smoking is up to the state, not local governments, he said.
Regulation of smoking preempted to state. This part expressly preempts regulation of smoking to the state and supersedes any municipal or county ordinance on the subject; however, school districts may further restrict smoking by persons on school district property.
Strickland has been focused on the smoking ban for several months.
He organized and held a peaceful protest, called a "smoke in" in January. Nearly two dozen supporters come out and lit up alongside him.
But, despite efforts to receive a citation, the protestors left empty handed. At that time, Gulfport Police Chief Robert Vincent said the beach lacked proper signage. As a result he advised officers not to issue citations.
Strickland tried again in February. This time he waited until all signs were in place, and he notified authorities of his plans to smoke on the beach. He received the citation and was planning on fighting the violation in Pinellas County Court until the charges were dropped at the discretion of the Gulfport City Manager and City Attorney.
Strickland said he was prepared for a day in court on Thursday, April 5, but when he checked with the judge's assistant the day before, he found out there would be no trip to the Pinellas County Courthouse.
“I was surprised. Because quite frankly if the city and city attorney believe that an ordinance is legal, they should look forward to defending it,” Strickland said.
Gulfport City Manager Jim O'Reilly said the charges were dropped because "We didn't believe the county court was the venue for Mr. Strickland to have his case heard. It's a community standard question, it should be a local home rule issue," O'Reilly said.
City Manager Andrew Salzman says the ban is legal.
“There are numerous communtieis that are doing it: Tampa has a ban, Sarasota, Cape Canaveral. There are many municipal governments that have banned smoking in parks, playgrounds, beaches. There is no case out there that says the ban is illegal.
"What there is, there’s a couple of attorney general opinions, which is not law. Law is determined by a judge and utilmate by an appeleite court,” Salzman said.
O'Reilly and Salzman both said that if Strickland receives another ticket he will have the oppertunity to challenge it before the city's Special Master in the new Special Magistrate program. Salzman says that is another reason why the charges were dropped.
“We wanted to bring it forward to the Special Master, versus going through the expense of county court,” Salzman said.
Strickland says he will move forward with his ultimate goal with another "smoke in" on Saturday, April 21 at 10 a.m. at the Gulfport Beach.
And last week, Strickland informed members of Gulfport City Council of his intentions. Gulfport Patch has attached the "open letter" given to councilors.
Below is an excerpt:
"Soon, my office will submit a motion, pro hac vice, to represent a pro bono Gulfport citizen in a proactive lawsuit to have your ordinance nullified.
“The whole purpose why I submitted the letter is just to explain to the City of Gulfport, me telling them why I’m doing it, versus a third party, and also to tell them what’s next.
"This is something that the City of Gulfport should consider. I don’t have a problem with other parts of the smoking ban even though I know that it’s illegal, I would be happy if they simply recinded this beach ban and I think that would be a good compromise,” Strickland said.
Strickland is organizing another "smoke in" on Saturday, April 21 at 10 a.m. at the Gulfport Beach.
“The issue is not 'smoking' or 'not smoking', the issue is liberty, the issue is controlling government,” Strickland said.
About the ban:
Gulfport City Council voted 5-0 to pass a smoking ban on the beach, athletic fields and facilities and playgrounds in the city on Tuesday, November 1, 2011.
What's the fine?
The citation carries a $143 fine for the Class III violation.
The ban affects the following locations in Gulfport:
- Gulfport Beach (shoreline from the Rec Center to the Casino)
- Gulfport Recreation Center's playgrounds and outdoor basketball court
- Gulfport Little League Complex
- Hoyt Field Baseball Field
- Tomlinson Park Skateboard Park and children's playground
- Chase Park tennis Courts
- Chase Park children's playground
- Caldwell Park children's playground
The ban does not affect: