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Attorney Plans 'Smoke In' to Challenge Gulfport Ban

St. Petersburg attorney Andy Strickland plans to continue his fight to lift the smoking ban on Gulfport Beach by organizing another "smoke in" on Saturday, April 21.

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.

Florida Statute 386.209

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.

What's next?

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:

The ban does not affect:

Bill Church April 21, 2012 at 12:43 PM
mtober - pls read AG Crist opinion in response to a clarification request from the city attorney for Margate, FL - it clarifies the confusion over the act's title in that it contains outdoor regulation as well. Our council has decided not to seek an opinion from Pam Bondi because they are dug in! This is going to end badly for us - disparaging Andy Strickland serves no purpose - the law is the law and we need to follow it instead of wasting taxpayer funds tilting at windmills!
William Smith April 21, 2012 at 01:10 PM
MTOBER: Perhaps you should simply focus on the issue at hand instead of tying to distract by attacking personally! Mr. Strickland's letter to Gulfport city leadership explains why he is doing this. If you don't like it too bad! Anyways, our own atty Salzman does not live in Gulfport. Also I have spoke to three anonymous attroneys who said Mr. Strickland is an excellent immigration attorney, Fight the issues, not the person. Be respectful and professional. shame on mtober
Lynda April 21, 2012 at 03:04 PM
Thanks for the extra research! It would be an act of cowardice if towns allowed attorneys such as Mr. Strickland to prevent them from adopting sensible public policies to protect children and allow the use of public resources by people who can't tolerate smoke. Although I agree with Rob that Gulfport doesn't need to spend limited public resources on a lawsuit brought by Mr. Strickland, I think it is a shame to be bullied by an attorney seeking attention into repealing an ordinance protecting children on playgrounds. It seems as though the strategy of not allowing Mr. Strickland to bring a court case will work. Maybe he will try Sarasota or Tampa. One can only hope he will stop harassing Gulfport soon. What a shame the Florida Bar Association doesn't actively police its own members.
Lynda April 21, 2012 at 04:29 PM
Bill Church. If the "law is the law", why did Pam Bondi go to court against ObamaCare? Why is Mr. Strickland harassing Gulfport about a local ordinance? The state "law" which prohibits towns from enacting protective ordinances prohibiting smoking on children's playgrounds is a power grab by the state of Florida (funded by out of state special interests) which will in fact be overturned when it is brought to court by some deep-pocketed city or when (2050?) Democrats take over the Governor's office and the Legislature. The national ridicule which resulted when the city of Tampa was not allowed to ban guns around the Republican convention while it could ban string will be sufficient to cause a modification of this state "law". We all agree, however, that Gulfport cannot afford to be the entity which brings the law to court so Mr. Strickland's harassment is really just bullying a small town to no purpose.
Bill Church April 21, 2012 at 04:47 PM
Lynda, you are mixing apples and oranges - the state of FL has the constitutional power to preempt as the legislature sees fit - it is not a power grab - it is for uniformity and consistancy. Let's not forget that this is a tourist state and we have no personal income tax because of our tourist revenues - uniform codes throughout the state allow visitors to know what they can and can not do which makes for a more friendly atmosphere. If you don't like the states position then lobby the state but to ignore a law because 'the ends justify the means' is dead wrong. We are a nation of laws - which made us great - let's keep it that way!
Bill Church April 21, 2012 at 07:19 PM
Lynda, You are mixing apples and oranges. The state strives for uniformity in their statutes. Remember we are a big tourist state. In fact we have no income tax based on the revenues generated by their visits. Uniformity of Florida statutes creates a friendly atmosphere where tourists - especially foreigners, can know what to expect throughout the state vs worrying about unpredictable local ordinances. If you don't like the state's position then lobby them. The ends do not justify the means. We are a nation of laws and that is what made us great! If we want to chnge things we should do it right not just ignore laws that don't fit our ocal agenda.
Rob Fowler April 21, 2012 at 07:25 PM
For what it's worth, I admire Mr. Strickland's courage and for those of us who still believe we should preserve what it is left of our vanishing civil liberties in the United States, he is a hero. Do not forget the civil liberties we have now are only due the fact that a few outspoken folks in the past, and sometimes against popular opinion, fought for them. The masses have never been the ones to ensure our rights survive. They are usually very quick to vote to take them away out of hysterical paranoia or religious self-righteousness. It is hard for most people to speak up for a right when it does not mean anything to them personally. On the other hand, a person who believes strongly in our Constitution and supports our civil rights will speak up for the rights of those they do not agree with as well as the ones they do. If it weren't for people like Andy Mr. Strickland over the past 230+ years, we'd probably not be allowed to even speak in this kind of dialog due to the First Amendment being eliminated long ago.
Rob Fowler April 21, 2012 at 07:51 PM
mtober: "Knowing that, I'd say this all about getting free media attention for Andy." With all due respect, don't forget that David Hastings was the one getting a lot of free media attention before the election pushing this law in the name of public health and safety. In fact, I think he was even on BayNews 9 (although I didn't catch it but remember him promoting it). And at the same time his Habana Cafe website was, and still is, promoting "Smoking Areas Inside and Out complete with Internet Access and Large Flat Screen TV". Fact is, in the free enterprise system, self-promotion and certainly free media publicity is allowed and even encouraged. Both David and Andy are in accepted standards of business practice to see an opportunity and make the most out of it. Although you don't care for Mr. Strickland, he is reaching a few civil libertarians that have never heard of him before. Even if that is his entire purpose, our city government presented him with the opportunity for him to jump on. That is legal and allowed for him to accept. And for those of who desire to see Gulfport be the very best city it can possibly be, we are glad he is taking this on. I am sure it would take an oversized ego to fight this in public, thankfully someone qualified stepped up to the plate. Remember, this has nothing to do with the safety of children or anyone else (nor about smoking at all), it is about what is right ethically and legally.
mtober April 22, 2012 at 01:43 AM
Rob - I respect your position and that of the others. However, I can't get past the fact that Mr. Strickland only seems to have issues with Gulfport having a smoking ban and apparently only the smoking ban on the beach even though smoking is banned in parks where children may be present. Why is that? He doesn't live in Gulfport so why this infatuation with Gulfport? There are many other municiipalities that have had a ban long before Gulfport did. Why isn't he worried about Civil Liberties for people in those cities? Why isn't he threatning to sue them or taking his protests there? At the workshop the other day the Junior Councilmember from Ward 1 mentioned that the reason the state purportedly controls the outdoor laws is for consistency. Among other things, the state doesn't want tourists becoming confused. Certainly I'm not up on all of the Florida news all he time but I don't recall there being any issues raised by tourists. JM2C
Rob Fowler April 22, 2012 at 02:25 AM
I guess since we've made Gulfport Beach such an easy target he couldn't resist the low hanging fruit. I see he got cited today, so the fertilizer has hit the fan, so to speak.
Lynda April 22, 2012 at 03:46 AM
i am ending my participation in this discussion. I can't type and laugh at the same time. I really hope Mr. Strickland tried to light his cigar in the rainstorm we had this pm. The image of that is incredibly precious. And, really, all this talk of "consistency in Florida's statutes." "vanishing civil liberties" and "confused foreign tourists" over a local smoking ordinance for playgrounds is just too funny. Puff away, guys. History is not on your side. And Herstory certainly is not!
Kim Morrissey April 22, 2012 at 03:46 AM
The very first comment on this thread hit the nail on the head. If the police had ever bothered to enforce the littering ordinance, there wouldn't need to be another ordinance. I know some of you have a problem with the smoking issue itself and I agree to a point, it shouldn't be happening on playgrounds and parks. But I do think people have a right to smoke outside (of course they should be considerate of others, that's a whole other issue), but they should dispose of their butts properly and not litter. And if they do litter, they should get fined. The problem would stop fairly quickly once a few fines were given out.
mtober April 22, 2012 at 06:07 AM
...and 300 New York municipalities have banned smoking. Wow , now that is a trough of injustice for Atty. Strickland to go after!! Right after he goes after all the other municipalities in Florida. We non-smokers should probably all try to go to New York and support their dwindling tourist industry now that the confused foreign tourists have probably stopped going there.;-)
Tony Althaus April 22, 2012 at 11:17 AM
Well said Kim, thank you for understanding my point. :)
CJ April 22, 2012 at 02:19 PM
Let them express the right to protest. Enjoy them while they can on this subject, but the day is coming when the bans ''will' be legal by ''any'' definition of the law. Initiating the bans was the right move to start with. This is the right thing to do. Littering is a terrible thing...and those who don't like smoking have the right to not be subjected to it. I appreciate the protestors rights, but they can't avoid the inevitable. Soon enough, the bans will be enforcible and we will see then if they will be happy to get arrested...whether they are a lawyer or not. I am sure the cops are good at remembering faces of troublemakers. There is no junk science to that thought.
CJ April 22, 2012 at 02:24 PM
What's hard to believe is that the smokers focus their complaints on these bans when they should be upset with the cost of cigarettes. I smoked a long time ago, and the prices are really something. That's where the real crime is. somebody is laughing all the way to the bank, that's for sure.
mtober April 22, 2012 at 03:55 PM
This article was intended to go with my last post. http://www.leaderherald.com/page/content.detail/id/546337/Cigarette-butts-harmful-to-environment.html?nav=5008
Lynda April 22, 2012 at 04:59 PM
I know I promised to stop commenting, but I just have to tell you I love the thought of all the confused foreign tourists who avoid New York due to too many local ordinances banning smoking coming to Florida instead because Florida's top priority is consistency in statutes!! Just too funny. Thanks!!!
mtober April 22, 2012 at 05:31 PM
Rob - IMO it has nothing to do with low hanging fruit and has all to do with sour grapes.
Rob Fowler April 22, 2012 at 07:08 PM
If Gulfport had the authority to legally ban smoking on the beach, we can be sure Andy Strickland, nor anyone else would be lighting up in front of our police. Believing one can stand up and make a statement with the law behind you is very different than being a martyr for what you believe in.
Rob Fowler April 22, 2012 at 07:36 PM
THE GAME: Lawyer vs. Lawyer. Lawyer Number 1 breaks a law he believes will not stand in court in order to overturn the law and make a public statement. He risks losing the fight and would be required to pay the fine and possibly paying the court cost. He uses his own time and money no matter how long this drags on. Lawyer Number 2 stands his ground declaring the law will hold up in court. He risks losing and would have to take the law off the books and possibly pay court costs. He uses tax payer money, local police, and city resources for as long as this drags on. There will be a winner and a loser. Both are taking risks. Seems crazy to me. I am sure a few signs asking people to not smoke on the beach and a few strategically placed attractive ash trays near the pavilions would satisfy the wishes of most Gulfport residents. (No solution will please everybody.) It would significantly reduce second hand smoke and cigarette butt litter without any risk to a single tax payer dollar. Most smokers would go along with the request to not smoke on the beach without hesitation. Smokers during family reunions or other meetings at the pavilions would have a convenient place to throw their butts. The police or court system would not have to be involved, at all. Does this make sense to anybody?
Rob Fowler April 23, 2012 at 12:23 AM
There may be some sour grapes around, but I am pretty sure for Andy it is very ripe sweet juicy mangoes dangling in his face too tempting to ignore... :)
Cherlene Willis April 23, 2012 at 02:36 AM
Dear readers: everyone enjoys the lively and respectful debate. However, I am adhering to the terms of use in moderating comments. Personal attacks will not be posted to this site. Thank you!
CJ April 23, 2012 at 02:56 AM
That was an enjoyble post to read and I basically agree. However, I do not see it so much as Lawyer vs Lawyer..not exactly. More like Lawyer vs Prosecutor , Judge, etc. Not really the same ..even though they are all lawyers. This issue of law is more on a State level...and the State legislators are the ones who will eventually fix this. I t sometime takes time. Florida is just getting started on this smoking ban stuff. Other States have seen the same pattern...but eventually the laws ''do'' get changed...and the bans are made State law or approved by the State to be decided by local jurisdictions. When that happens..laws like we have here will eventually hold water. Untill then...they are mainly just a deterrant. Lawyers have the money to afford the fines and the court costs...but they are only fighting the inevitible. Eventually...the bans will be be valid...and the cops ''will'' ticket people and the fines ''will'' be paid. Untill then...a few lawyers here and there can just play thier game...but not exactly as you say...but similar. They can have their silly fun for now...but not much longer. You can be sure of one thing...cops enjoy arresting and giving tickets to lawyers.
CJ April 23, 2012 at 03:28 AM
The terms of use policies are not Cherlene's..they are the rules of The Patch, which is National..not just here locally...and Cherlene is only doing her job. She may even agree with the posts she deletes, but she has to obey the rules of her emplyment...the Patch. Unfortunately, she also has to be impartial..and on this particular subject...it is hard to do. Even in other communities across the USA that The Patch is in...and this topic comes up...it has the same identical problems. This is a topic that really gets people worked up. Reminds me of the old movie with Dick Van Dyke about people quitting smoking...I think it was called Cold Turkey..it was very funny. When you mess with peoples vices, you can be sure it will get people going strong in their opinions.
CJ April 23, 2012 at 03:35 AM
I agree with you all the way...great message. I have lost all the people dear to me to cancer..so I can relate to your advice. I used to smake a long time ago also..and I quit for many of the reasons you mentioned...but I also remember how much I enjoyed it...or rather..had myself convinced I enjoyed it. When you finally kick it..it leads to a better life. It was tough to do..and I feel very lucky to have beat it. I truly understand why some people can't quit..and I wish them all good luck. My advice..is not to give up..keep qutting over and over until you finally win.
CJ April 23, 2012 at 03:42 AM
mtober...I know from remembering some of your past comments that you often have some of the more interesting things to say...and you seem to have an inside edge on what you know. Many of your details are usually very interesting. You obviously know many things that most people would never hear. Sounds like you have some good friends out there that know what is going on. Usually, that is where some of the best advice can come from.
CJ April 23, 2012 at 03:48 AM
I just had this funny thought of how hilarious it would be if we found out that Strickland and ''JohnE'' were the same person...anyone remember him? He keeps reappearing as someone new on this blog all the time...lol! I know he's not the same person..but it still was funny to me how I had that momemtary thought on it. One thing is for sure..people like that are cut from the same mold.
CJ April 23, 2012 at 01:32 PM
..and here I thought all this talk of low hanging fruit was complimenting some men for having some real gonads to stand up to the issues..but now i see we are really talking about fruit...wow..my wife is right..my mind ''is'' in the gutter. I feel so ashamed.
CJ April 25, 2012 at 02:34 PM
I have been following this story for a long time..every since I think it first was brought up about the smoking bans. Where this all started has been kinda lost in the shuffle over the bans. If I remember correstly, it was sort of a case where you can't fix one problems without fixing another. It was noted by the wonderful volunteers in so many of the litter/clean-up efforts around town that the vast majority of the litter was from smokers. Although smoking litter is ''tiny''..other liter does not even come close in how much litter is out there. Due to this observation, I think this is largely what has led to this heated smoking ban debate. The fact is..this is going on all over the country..and many other communities have made great strides and been completely successful implimenting the bans. Smoking and littering go hand in hand. It is a welcome sight to see our community finally jumping on this bandwagon also. Now we need to regain the focus on the main underlying issue that is behind all this...littering. It would be great to see more fines being delt concerning littering by individuals and businesses who don't clean up after smokers.

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