The debate over Hampstead’s now-in-effect prohibition on smoking cigarettes — and, in the near future, pot — on local streets, sidewalks and in parks flared up again at the June council meeting, sparked by a challenge from resident Dan Sterlin.
Some observers are anticipating that someone could bring a constitutional challenge against the ban.
Sterlin, who neither smokes nor approves of smoking, asked how the town is enforcing the bylaw.
“It’s a question that has been asked numerous times,” replied Mayor William Steinberg. “The same as we enforce any other bylaw... We’ve instructed Public Security to go up to anyone they see smoking on streets or sidewalks and tell them that, in Hampstead, it’s not allowed. If they put out the cigarette, that’s the end of it, we’re not trying to raise a whole bunch of revenue.
“If someone says, ‘no way,’ then we give a ticket.”
Sterlin was skeptical, saying Public Security officers (PSOs) do not have the same powers as police officers.
Steinberg said PSOs have the power to enact municipal bylaws.
“You’re asking your PSOs to act as policemen!” Sterlin argued. “They do not have the right of detention, they cannot ask for identification, how will they issue tickets?”
Steinberg said many of Sterlin’s statements were false.
“Yes, they can ask for identification,” the Mayor added, saying it is like a PSO catching a person walking a dog without a leash. “If they persist in not providing identification, the PSO can call the police, who will force them to identify themselves.”
Councillor Harvey Shaffer, a lawyer and the council member responsible for the Public Security portfolio, agreed that the PSO can ask a person to identify themselves.
The two opponents to the ban, Councillors Warren Budning and Leon Elfassy, soon intervened.
“I think your comment just attested to the fact of the unenforceability of this bylaw and the ridiculous nature behind it,” Budning told Sterlin. “I just want to reiterate the fact that I’m completely against this bylaw, and it’s absolutely ludicrous that Hampstead passed it.”
Elfassy said his main problem with the bylaw is enforcing it, and he wondered how the courts would deal with a possible challenge of a ticket.
“You’d have to challenge the constitutionality and legality of the bylaw,” Shaffer said.
The bylaw is “infringing human rights!” Elfassy said, bringing up a possible example of someone from outside Hampstead being given a ticket for smoking in the town. Shaffer replied that anyone from outside Hampstead speeding in the town would get a ticket.
“Speeding and smoking are not the same!” Elfassy insisted.
“It is— until you challenge the legality of the bylaw and it’s deemed to be illegal, it’s enforceable,” Shaffer replied.
Elfassy asked the current commander of Station 9, Patrick Lavalée, present at the meeting, to offer his opinion. The commander said he and the SPVM are not the ones to decide what Hampstead PSOs can and cannot do.