Given legal barriers on smoking ban, council decides to ask nice

The Front Royal Town Council’s move to approve a no smoking at school bus stops code as an emergency ordinance change hit a stop sign on August 21.  That “stop before proceeding” notice came from Town Attorney Doug Napier.  Napier informed council that his research indicated that no Virginia municipality has such an ordinance, and that State law surrounding smoking restrictions would make such a code problematic legally.

Napier explained that is because the enabling State legislation references either publicly-owned property or facilities.  And as elaborated in the staff summary of those codes, for the most part it references buildings or enclosed areas.  In fact, school buses are specifically cited in one section of applicable Virginia Code 15.2-2829.

And while the code does authorize some authority at “other public places” such as parks, those are municipally-owned spaces, not public right of ways where one would find a bus stop.

However, Councilman Chris Morrison who brought the matter to council’s attention with two citizens who addressed an August 7 work session insisted he had spoken to officials in both Fairfax and Winchester City who had verified that they had codes in place regarding school bus stops such as he is supporting here.

Asked about Morrison’s claim the following day, Napier said he had spoken to the Fairfax assistant attorney who explained their code addressed only enclosed shelters at bus stops utilized by schools.  Napier said he had no information verifying Morrison’s assertion about such a smoking prohibition in Winchester.

As Jacob Meza, left, and Town Manager Joe Waltz listen, Chris Morrison argues for more to be done legally to prevent smoking at school bus stops. Photos/Roger Bianchini

The staff summary questioned whether with a maximum $25 civil penalty, the cost of attempting to enact the proposed ban was “worthwhile to pursue”.  It was also noted that the town police representative present on August 7 had observed such a statute would present some enforcement difficulties.

Faced with these legal roadblocks, an alternate strategy was presented – ask nice through the public school system and depend on the common sense and good nature of the public.  The town attorney suggested that the school system send out notices to parents reminding them “not to smoke around kids” at the school bus stops because second hand smoke is a health hazard.  The council consensus was that parents were likely to observe such a request voluntarily because no one’s intention is likely to present a health hazard to their own or other children.

“I like the idea of the letter,” Jacob Meza said, adding, “the real concern we have is not to smoke next to children.”

While no citizens were present on August 21 in support of the initiative, during the public remarks on August 7 no specific examples of parents smoking in close proximity to students were cited.  The primary complaint presented was that there was adult smoking observed at some school bus stops and that smoking is a generally-recognized health hazard, so should be legally prohibited.

Vice-Mayor Tewalt agreed that with legal and enforcement issues the best course of action was to write the letter asking smoking parents at bus stops to keep a safe distance from the children.  Tewalt wondered if council wasn’t flirting with governmental overreach – “What’s the next ordinance going to be, how to raise your kid? … It has nothing to do with our job … there are (no comparable ordinances) in the state.”

Vice-Mayor Tewalt makes a point as Councilmen Meza and Morrison wait their turn.

However, Morrison was reluctant to let go of his initiative.  After asserting that Fairfax and Winchester do have codes similar to what was being proposed here, he told his colleagues, “Let’s do what we can … we have tobacco-free school zones.  I felt like we should do what we can!”

However, the council consensus was to instruct the town attorney to work with the public school administration on the letter requesting parents to either refrain from smoking or keep a safe distance from children if they do smoke at the bus stops.