Sunday, July 12, 2020

Town council delays nicotine possession ordinance until April

Protecting the kids rather than being punitive

By Mark Reaman

To help ensure that a kid caught possessing nicotine products isn’t stigmatized for life by having a criminal conviction on his or her record, the Crested Butte Town Council on Monday delayed a decision on a proposed ordinance prohibiting the possession of tobacco and nicotine by minors under the age of 18.

The council wanted to make sure that the intent of the ordinance is clearly understood to give the offending minor and his or her family a chance to get educated on the dangers of tobacco and vaping and not receive a formal court record for the first offense.

In an hour-long discussion on Monday, March 18, the council listened to both sides of the argument. Crested Butte chief marshal Mike Reily emphasized that his department would make sure the ordinance was used as “something beneficial for local kids to help prevent them from getting into nicotine or vaping. It is set up similar to an ordinance used in Gunnison. The first steps are not punitive but there to help local youth make good decisions.”

Andy and Sue Tyzzer, parents of a 16-year-old student at the Crested Butte Community School, made the case to not criminalize teenagers for something like getting caught smoking. “I suggest this is the wrong tool to use to obtain a positive result,” said Andy. He told the council he had talked to some officials in Gunnison who reported to him that the ordinance did not show “a beneficial causal effect. Criminalization is not an effective tool.”

Andy Tyzzer said the ordinance would force kids into the judicial system, possibly leaving a lasting record of guilt. “Think of a 14-year-old who gets caught at school with a vaping device and now has to be part of the court system. He or she has to go in front of a judge and the record stays with them. The unintended consequence is that it puts stress on the kid and on the family. And stress fuels substance abuse. Why use the police and the judicial system at all? Use the education part of the ordinance in the schools for everyone. Educate the kids and the families about tobacco and vaping. Eliminate the opportunity for minors to see tobacco products being advertised at local stores like City Market and then tax the heck out of it,” Tyzzer suggested.

Gunnison County Substance Abuse Prevention Project (GCSAPP) executive director Kari Commerford said she had spoken with Tyzzer and while she agreed that criminalization is not a good way to eliminate substance abuse, especially as a solo method, the county uses several methods to address such problems. “Our view is this is not criminalization,” she said. “It is a pathway for education. We see it being a useful tool.

“Per my conversation with Andy, we will also be doing things like bringing awareness about tobacco promotion and the harm of advertising tobacco to youth to places like City Market,” continued Commerford. She did say that since the ordinance was passed in Gunnison, tobacco use rates by local students had declined.

Several CBCS students spoke to the council as well. Havalin Haskell said they experienced students vaping every day and they saw the ordinance as a positive step to help stem the use.

Caroline Bryndal commented that many kids don’t view vaping as a “real drug,” in part because there are no legal consequences to doing it.

Parent Joel Wisian said the CBCS advisory accountability committee had discussed the topic and voted unanimously to support such an ordinance.

“I just don’t want to see the police involved at all,” said Sue Tyzzer. “I don’t want to see minors taken to court. Parents need to step up and talk to them about a healthier path.”

Student Hope Freeman said the new ordinance could help some parents become aware that their kids are vaping and bring consequences for the action.

“Let’s do what we can to protect our children, not punish our kids,” said Andy Tyzzer.

Reily said the kids wouldn’t be arrested but may be cited and issued a ticket. “The idea is to not be punitive but have consequences,” he emphasized. “But the tool would allow for conversations to happen. Like we do with most things in the Marshal’s Department, we give a boatload more warnings than we do tickets. It is not our intent to go looking for a kid with a Juul in their hand.”

Councilman Jackson Petito wanted it to be clearer in the proposed ordinance that the intent of the council was to emphasize education opportunity over judicial action. “I trust when Mike [Reily] says that this will be used as a tool in the toolbox,” he said. “The point is to protect kids, not put them in the judicial system.” He proposed the idea of restricting such advertising in town and “taxing the hell out of such products” if possible.

Petito suggested adding a clause to the ordinance making it clear that the intent of the ordinance was not to subject minors to the criminal justice system but rather to expose them to educational opportunities.

Town attorney John Sullivan clarified that the ordinance would indeed “criminalize” the possession of nicotine products by a minor as a petty offense. He said if the juvenile pled or was found guilty, the offense would be on their record.

“I think the intent is good but this is an overreach by us. It’s a family thing,” said councilwoman Laura Mitchell.

Councilman Will Dujardin asked if there was a way to make sure the first offense would not result in a record.

Sullivan said allowing for a “deferred prosecution” on the first offense could accomplish that although that legal maneuver was rare. “The town doesn’t normally offer the deferred prosecution option,” he said.

But the council wanted to move in that direction and Sullivan said he could make the necessary changes to the proposed ordinance to accomplish the goal for the April 1 meeting. The council voted 7-0 to continue the public hearing for the ordinance at the April 1 meeting.

“We want to get this done but we want to get it done right,” said Dujardin.

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