Ninety-Nine Red Balloons? Not If Some in Cape Cod Town Get Their Way

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The town of Orleans on Cape Cod is considering a ban on selling and releasing helium balloons.

Selectmen voted this week to set a public hearing on a bylaw proposed by the town’s Conservation Commission that would set a fine at $50 per offense.

Those offenses include selling or distributing to the public “any type of balloon (including, but not limited to plastic, latex, rubber or Mylar balloons) inflated with any type of lighter-than-air gas,” according to language in the proposed bylaw.

The bylaw language continues:  “No person shall throw, deposit, discard, or otherwise discharge inflated or uninflated balloons into any street, alley, waterway, park, beach, or other public place in the Town of Orleans.”

The Orleans Conservation Commission discussed and approved the draft bylaw at its meeting December 11.

“The purpose is really to address public concerns regarding the hazards to wildlife and marine life within the town for the release and improper disposal of balloons,” said John Jannell, the town’s conservation administrator, during the December 11 meeting, according to a video of the meeting posted on the town’s public-access television station web site. (It runs from 39:43 to 56:56.)

Opponents of helium balloons say they do damage to animals that try to eat them.

Jannell stressed that balloons filled with lighter-than-air gas are the target, not all balloons.

“So I think you can still buy and blow up balloons …” Jannell said.

“… with your own hot air,” commission member Walter North said, to laughter.

“With your own hot air. That was a good one,” Jannell said.

Jannell said he took the language for the draft bylaw from existing balloon bans in the town of Chatham (south of Orleans) and the town of Nantucket, with some tweaks.

Orleans Conservation Commission members disagreed on some of the details.

Rich Nadler, a commission member, expressed concern that the fines could pile up under certain circumstances.

“Wait a second. So I was just at a party, and they had balloons. Fifty of ‘em. And that’s not unusual. It was a party. And there were fifty of them. It was, ah, I won’t say – it was a club. So it was, you know, a couple of hundred people at this event. And that would be, what, $2,500 or something like that, fine for that one event?” Nadler said.

“No, it’s not per balloon,” commission member Judith Bruce said.

“It’s per transaction,” said Bob Rothberg, an associate member of the commission.

Conservation Commission chairman Mike Brink floated a hypothetical scenario.

“Let’s assume that I live in Orleans and I want to buy a balloon and I can’t because I’m prohibited from doing that. I can go to another town and buy a balloon and that’s O.K.. But I can’t release it,” Brink said.

“You can’t inflate it and release it. You could buy it in Orleans. You could inflate it yourself. But then you can’t release it. You can’t buy it inflated already,” Rothberg said.

“So one can buy a canister of lighter-than-air gas someplace, and inflate it myself, if I buy the balloon someplace else, but I can’t release it,” Brink said.

One commission member wanted to fine businesses for having the balloons, whether they sell them or not, taking her cue from a cable news network discussion.

“So if they’re offered for sale — not to use an MSNBC reference, but last night they were talking about if you rob a bank but you’re not successful, that’s still criminal. If you have balloons for sale, that’s an offense,” said commission member Ginny Farber.

“No it isn’t, actually, under this,” Rothberg said.

“There’s the intent to sell,” Farber said.

“There are a lot of intents that are not criminal. It’s doing it that’s criminal. Or attempting to do it, is sometimes criminal,” Rothberg said.

Another commission member said $50 per offense isn’t nearly enough. She suggested $100.

“I think you probably also have Realtors that have balloons and helium tanks, that routinely use balloons for their open house signs,” said commission member Bruce. “… For a hundred dollars there’s a little more care and caution about those not being released.”

But commission members eventually decided to keep the fine at $50 per offense.

One commission member pointed out a possible loophole. The bylaw, Nadler noted, says “… no person shall knowingly release or cause to be released into the air any balloon(s) inflated with any lighter-than-air gas.”

“Most balloons get released accidentally,” Nadler said.

In Massachusetts a town conservation commission has regulatory jurisdiction over state and local laws and regulations governing wetlands and administers town-owned conservation land. Conservation commission members and staff often also take an interest in protecting the environment.

A Board of Selectmen is the executive authority over the day-to-day affairs of most small and medium-size towns in Massachusetts. Selectmen (among other things) ordinarily decide which articles make it onto the warrant for Town Meeting, where voters of a town decide whether to approve or reject them.

During the Orleans selectmen’s meeting Wednesday, January 2, as first reported by the Cape Cod Times, selectmen briefly discussed the proposed bylaw and agreed to call a public hearing to allow further discussion of it. (The selectmen’s discussion is available at the Orleans local cable-access web site, from 3:10:18 to 3:12:05.)

After the public hearing (which wasn’t immediately scheduled), selectmen will decide whether to put the proposed balloon ban on the warrant for annual Town Meeting in the spring. If it makes it to Town Meeting, and if a majority of voters at Town Meeting approve it, the bylaw as currently drafted would take effect in Orleans on September 15, 2019.

The draft text of the proposed balloon ban bylaw is available here.

If the ’80s rock group Nena wanted to film an updated version of the music video for its hit song “99 Red Balloons” (known in German as “99 Luftballons”) in the Cape Cod town of Orleans after a proposed balloon ban took effect, the band could buy balloons in Orleans and then inflate them with helium or could buy pre-inflated balloons somewhere else, but couldn’t buy balloons inflated with helium in the town. Nor could the band knowingly release the balloons in the town. But if the band “Set them free at the break of dawn” (as the song has it) accidentally … it would be a gray area.