The URL can be used to link to this page

Home My WebLink About2005-05-17; City Council; 18132; Presentation from Teens for TomorrowAB# 18,132 MTG. 5/17/05 DEPT. CM - TITLE: REQUEST TO MAKE A PRESENTATION FROM TEENS FOR TOMORROW CITY OF CARLSBAD -AGENDA BILL DEPT. HD. CITY ATTY. CITY MGR 15 ~~ RECOMMENDED ACTION: Receive presentation from Teens for Tomorrow regarding youth access to tobacco. ITEM EXPLANATION: The City Council provides an opportunity for citizens and organizations to have an item placed on a City Council Agenda by submitting a letter to the City Manager. Attached is a letter (Exhibit 1) from Joyce Kistler, member, Teens for Tomorrow, requesting the opportunity to make a presentation to the City of Carlsbad’s City Council regarding youth access to tobacco. FISCAL IMPACT: There is no fiscal impact at this time. EXHIBITS: 1. Letter to Ray Patchett, City Manager, from Joyce Kistler, member, Teens for Tomorrow, dated May 3, 2005. I EXHIBIT 1 Carlsbad High School 3557 Lancer Way, Carlsbad, California 92008 (760) 331-5100 “Excellence in Education” Teens For Tomorrow Scott Wright Principal May 3,2005 Dear City Manager Patchett, Despite the efforts of local law enforcement to stop illegal tobacco sales to kids, it remains a serious problem in the City of Carlsbad. According to a recent countywide survey conducted by the San Diego County Tobacco Control Coalition and the Tobacco- Free Communities Coalition, almost 29% of Carlsbad retailers sold to minors. Tobacco is the only legalized product that when used as intended causes death. Yet store clerks continue to sell illegally to minors. Additionally, 80% of adult smokers say they began smoking before the age of eighteen. As Teens for Tomorrow we feel we have a responsibility to the youth of this community to ensure that their health and well being is a priority to the Carlsbad City Council. We request 20 minutes at the May 17* Council meeting to briefly address the Council regarding the issue of youth access to tobacco and a resolution for the problem through tobacco retailer licensure. Thank you. Sincerely, - e- Jo e Kistler Teens For Tomorrow (760) 729-5240 a- i VISTA COMMUNITY CLINIC Mailing and Corporate Address: 1000 Vale Terrace Vista, CA 92084 (760) 631-5000 Fax (760) 414-3701 www.vistacommunityclinic.org clinic Locations: Vista Community Clinic 1000 Vale Terrace Vista, CA 92084 (760) 631-5000 Fax (760) 414-3701 Vista Community Clinic Tri-City Community Health Center 161 Thunder Drive, Suite 212 Vista, CA 92083 (760) 631-5030 Fax (760) 941-2641 Vista Community Clinic 818 Pier View Way hide, CA 92054 Fax (760) 721-5649 Vista Community Clinic 517 N. Home Street Oceanside, CA 92054 (760) 631-5009 Fax (760) 721-7348 Vista Community Clinic 4700 North River Road Oceanside, CA 92057 (760) 433-6800 Fax (760) 433-0529 Board of Directors: Rrsidmr Carol Dillard Kce Rrsiht Merdes Freire (760) 631-5250 Scmtary Reyes Telles Tmasum Michael Hire Dirrrrorr Silvia Alcantar Maria L. Chavez Raye Clendening Dave Cowles Olivia Gonzales James Hagar Carmen Harney-Greska Vicki Monahan Lucy Rojas Karen Sanchez Anne Speraw Velia Villaseiior-Telles Dal Williams Susan Woods &ccutivc Dimctor Barbara Mannino Joseph Troya May 2,2005 Dear Local Decision Maker, Despite the efforts of local law enforcement to stop illegal tobacco sales to kids, it remains a serious problem in the City of Vista. According to a recent countywide survey conducted by the San Diego County Tobacco Control Coalition and the Tobacco-Free Communities Coalition, almost 28% of Vista retailers sold to minors. Tobacco is the only legalized product that when used as intended causes death. And yet store clerks continue to sell illegally to minors. It is time to hold tobacco retailers accountable. Tobacco retail licensing is a common-sense approach that will ensure that retailers operate legally, ethically and responsibly when it comes to preventing illegal tobacco sales to minors. Requiring a license to sell tobacco products sends a clear message to all tobacco retailers that Carlsbad is serious about protecting kids Erom this deadly addiction. Please review the materials in this packet and learn how enacting a retailer licensing program in the City of Carlsbad benefits local business owners and the community. Sincerely, YpfffAd yndse Gemmell Project Coordinator, Heath Educator, Tobacco Control Program Tobacco Control Program (760) 407- 1220 x 139 (760) 407- 1220 x 144 Mksh Statement Vuta Community Clinic is a privatc, nonpmft rorpomtion whirhpmihs high quality comprrhcnriwprimary hcdtb cam and hcalzh cducation to mcct the net& of community mrmbm with ajk on thosc in nrcd bcrawc of economic, social or culnrml bam'm. Congratulations! Antioch Berkley Brentwood Clayton Colma Concord Contra Costa Ddy City Dandle East Palo Alto El Cemto El Cajon El Segundo Goleta Lafa yet te Lawndale Los Angeles Martinez Millbrae Oakley Orinda Pasadena Palm Desert Pinole Pit t sburg Pleasant Hill Rancho Mirage Redwood City Richmond Riverside Roseville Sacramento SanCarlos San Fernando San Fransisco San Louis Obispo San Mateo San Mateo County San Rafael Santa Barbara S tanislaus County Walnut Creek This list of Calilornia cities who have successfully passed tobacco retail licensure policies reflects Cal.Iomia 3 beivltby attitmle and concern for reducing youth access to tobacco products. And the list Keeps growing... We encourage you to join!!! tobacco/county/licensur&fo kivOrdinance list communities ha I i t i on \‘ I s 1’ ;z CObIR.1 lW ITY rLlNlC TOBACCO FACTS Prevalence 0 0 0 33.9% of SA Diego County retailers sold tobacco to kids in 2004.’ 18.3% of San Diego youth smoke cigarettes.2 Approximately 80% of all adult smokers in the U.S. started smoking before the age of 18. Every day, nearly 4,000 young people under the age of 18 try their first ~igarette.~ Youth Addiction 0 0 Health 0 0 0 0 0 0 The addiction rate for smoking is higher than those for marijuana, alcohol or cocaine; and symptoms of serious nicotine addiction often occur only weeks or even just days after youth “experimentation” with smoking first begin^.^ Smoking during youth is also associated with increased likelihood of using illegal drugs.5 Roughly one-third of all youth smokers will eventually die prematurely from smoking-caused disease.6 Tobacco kills more Americans each year than alcohol, cocaine, crack, heroin, homicide, suicide, car accidents, fires and AIDS combined? Tobacco use is the leading preventable cause of death in the United States. Cigarette smoking causes an estimated 440,000 deaths, or about 1 of every 5 deaths, each year.’ An estimated 35,000 coronary heart disease and 3,000 lung cancer deaths and deaths occur annually among adult nonsmokers in the United States as a result of exposure to secondhand smoke.’ Tobacco use is a leading risk factor for many chronic diseases, including heart disease, cancer and stroke? Secondhand smoke contains a complex mixture of more than 4,000 chemicals, more than 50 of which are cancer-causing agents (carcinogens).” Economics 0 0 In 1999, smoking cost San Diego County $1.2 billion in direct health care costs and lost productivity due to illness and premature death. That’s $2,975 per smoker and $443 per resident.” Per the Synar Amendment (Section 1926 of the Alcohol, Drug Abuse and Mental Health Administration Reorganization Act of 1992), federal funding for alcohol and drug abuse prevention and treatment programs may be cut by up to 40% if tobacco sales to minors exceeds 20%. This amounts to a potential loss of almost $8 million for San Diego County and more than $100 million for California. Tobacco Industry Marketing 0 In 2001, cigarette companies spent $1 1.2 billion, or more than $30 million per day, on advertising and promotional expenses. This amounted to more than $39 for every person in the United States or $241 for each adult smoker.” Public Support 0 0 0 88% of Southern Californians believe playgrounds should be smoke-free and over 76% support smoking bans on restaurant patios and at building entrance^.'^ 75% of San Diegans support licensing tobacco retailer^.'^ 63% of San Diegans think that laws banning the sale of tobacco products to minors have not been adequately enf~rced.’~ 1. 2. 3. 4. 5. 6. 7. 8. 9. Unpublished data, American Lung Association, 2004. California Department of Health Services, Tobacco Control Section, California Student Tobacco Survey, 2001 , httm//webtecc.etr.org/cstats SAMHSA, HHS, Calculated based on data in National Household Survey on Drug Abuse, 2001 , www.samhsa.gov/oas/nhsda.htm. See, also, HHS, Youth and Tobacco: Preventing Tobacco Use among Young People: A Report of the Surgeon General, 1995, http://sgreports.nlm.nih.gov/"/B/C/L/O/ /nnbclq.Ddf (page 49). U.S. Centers for Disease Control and Prevention (CDC), "Symptoms of Substance Dependence Associated With Use of Cigarettes, Alcohol, and Illicit Drugs - United States 199 1 - 1992," Morbidity and Mortality Weekly Report (MMWR)), November 10, 1995, www.cdc.gov/mmwr. DiFranza, J.R. et al., "Initial Symptoms of Nicotine Dependence in Adolescents," Tobacco Control 9: 3 13-19, September 2000, http://tc.bmjjournals.com. Campaign for Tobacco-Free Kids (TFK) fact sheet, The Path to Smoking Addiction Starts at Veiy Young Ages, www.tobaccofieekids.ordresearch/factsheets/Ddf/O 127.pdf. American Lung Association, November 2003 , www.lunmsa.org, Teenage Tobacco Use Fact Sheet, http://www.lungusa.org/site/pp.asp?c=dvLUK9OOE&b=3987 1. CDC, "Projected Smoking-Related Deaths Among Youth-United States," MMWR, November 8, 1996, www.cdc.gov/mmwr. CDC, National Center for Chronic Disease Prevention and Health Promotion, February 2004, www.cdc.gov , Tobacco Related Mortality Fact Sheet, www.cdc.gov/tobacco/factsheets/Tobacco_Rheet. htm CDC, National Center for Chronic Disease Prevention and Health Promotion, February 2004, www.cdc.pov , Tobacco Related Mortality Fact Sheet, www.cdc.gov/tobacco/factsheets/Tobacco Related Mortalitv factsheet.htm CDC, National Center for Chronic Disease Prevention and Health Promotion, February 2004, www.cdc.gov , Health Effects of Cigarette Smoking Fact Sheet, www.cdc.gov/tobacco/factsheets~ealthEffectso~igare~eSmoking-Fac~heet. htm 10. CDC, National Center for Chronic Disease Prevention and Health Promotion, February 2004, www.cdc.gov, Secondhand Smoke Fact Sheet, www.cdc.gov/tobacco/factsheets/secondhand smoke factsheet.htm California, December 2002, p 148 Industry Marketing Fact Sheet, www.cdc.gov/tobacco/factsheets/Tobacco Industry Marketing Factsheet.htm April 200 1. http://webtecc.etr.org/cstats. 11. Max, Wendy, Rice, Dorothy P, Zhang, Xiulan, Sung, Hai-Yen, Miller, Leonard; The Cost of Smoking in 12. CDC, National Center for Chronic Disease Prevention and Health Promotion, February 2004, Tobacco 13. Field Research Corporation, Survey of California Adults on Secondhand Smoke, South Coast Region, 14. California Department of Health Services, Tobacco Control Section, California Tobacco Survey, 1999, 1 Up In Smoke: Illegal Tobacco Sales to Youth The Son Diego County edition of Prevention File is published in cooperation with the County of Son Diego Health and Human Services Agency, Alcohol and Drug Services [ADS] Please address all comments to "SA, ADS, P.0. Box 85222, Son Diego, CA 921 865222, or call ADS ai 619/692.5717 E-mail. bcranehe@co.sondiego.ca us Y UP IN SMOKE: TWO 15-YEAROLDS STAND OUTSIDE A LOCAL CONVENIENCE STORE. The first one goes in, looking around for antitobacco signage and self-serve cigarette displays. After he leaves, the second teen enters the store, approaches the counter and asks the clerk for a pack of Marlboros. She even shows the clerk her ID. She nervously awaits the States failing to maintain an illegal tobacco sale rate under 20 percent will not be eligible to receive 40 percent of their block grant funds. In California, that translates into $100 million dollars in federal funding. In 1995 the percent of retailers selling tobacco to a minor was 37 percent, dropping to a low of 12.8 percent in 2000. The latest figures prepared bv the California clerks response Teens cround Son Diego CoLnry, frcm Oceans ce and Esconcl do IO E Caton and SoJih 43ra Street in Son 3 ego, do iris on c reph oas s Scme ger tqe cigaretres others 00 r10: ht these klds doq't smoke They are aecop In tooacco si ng operailors The resJlts oi ihelr efforts become YoLtn PJrchcse Swey aara Decoy operations spr ng from ibe Federal 1992 ShAR Aqenament (see Preventran file, Vo 18, ho 1, W nw 2003) SY\kR re+ res irclt slates enact cna amely erbrce ia~s prob o t ns toDclcco 531es IC) clnyone mder me nge o1 16, cona.ct 'maom, 5:: erd c iPjpect2rs to assess II e$a tc3occc soles, a11 report resJ ts ir, :?e 3nnd 3p3 c3t on for hck granr turn- '3 [,on 1-e Sdksmce Abuse arcl !,\enrai I-ecltr S2,~ices Aclm I srratior SFSSkSA: SAN DIEGO COUNTY EDITION SPRING 2003 PREVENTION FILE The Sale of Tobacco Products to Persons Under 18 Years of Age Is Prohibited by law and Subject to Penalties. Valid identification May Be Required Department of Health Services, Tobacco Control Section, show a rate of 19.3 percent for the first half of 2002. California launched the Stop Tobacco Access to Kids Enforcement (STAKE) Act in 1995. It includes the following: * Prohibits the sale of tobacco to any person Assesses penalties against the store owner for Requires retail sellers to check ID of anyone who * Requires businesses to post STAKE warning Prohibits tobacco advertising within 1,000 feet In response to possibly losing funds, under 18 the illegal sale of tobacco appears to be under 18 posters where cigarettes are sold of schools and playgrounds STAKE funds come from the tobacco companies under the Master Settlement Agreement. They are available for 25 years unless the tobacco companies go broke first or until smoking is no longer an issue. Son Diego County earmarks $2 million each year to address chronic disease and tobacco use. Tony Vaninetti with Son Diego County Health and Human Services Agency and program director, Tobacco Control Resource Program, says: “The underlying rationale is that if you can keep a kid from experimenting and getting addicted to cigarettes before they’re 18, they are probably not going to do it. If they get addicted before 18, they will probably stay addicted their whole life.” A strip mall on South 43rd Street in Southeast Son Diego houses The Palavra Tree, an alcohol and other drug services program funded by the County of Son Diego Health and Human Services Agency. The Reverend Cleo Malone, executive development in teens and additional years to create a habit. ”The major focus of enforcement is the PC 308101 sting operation,” says Kristin Harms, the policy and enforcement coordinator of Tobacco Free Programs for the ALA. ”We are working with enforcement to make this a priority.” PC 30810) concerns the selling of tobacco to minors. May 2002 organized by Harms, perceived lack of importance in the community is one of the largest barriers to implementing PC 308(a). In a social climate of competing priorities and budget cuts, community pressure can bring this issue to the forefront. Harms collects At a law enforcement roundtable in sting operation statistics to raise director, and Juan Smith, project The underlying awareness in the community. This director for the I Hate Tobacco data will be available on the ALA Project, are passionate about is Website (www.lungsandiego.org) keeping their community’s youth that if you can in April 2003. away from tobacco. Their primary focus is prevention and they keep a kid from Son Diego Sheriff’s Department preach this message wherever experimenting and the cities of Oceanside, la kids are found: schools, youth Mesa and Escondido to perform centers and churches. ”Most kids The county contracts with the getting addicted to PC 308(a) sting operations. Shannon Murphy, a detective in the Escondido Police Department, cigarettes before will buy tobacco illegally if both peer pressure and opportunity are present,” says Smith. Control (August 2002) shows they’re 18, they are was involved in 24 decoy operations in 2002. “1 recruii probably not going and prepare the decoys and A study published in Tobacco new evidence that teen smokers to do it. train other EPD officers to run the become addicted to nicotine much faster and with fewer cigarettes than previously thought. Thirty-three percent of adolescent smokers display symptoms of addiction when reported smoking only one day a month, 49 percent when smoking once a week and up to 70 percent before they become daily smokers. The study also found that girls display addiction symptoms within three weeks for an occasional smoker compared to an average of six months for boys. According to American tung Association statistics, more than half of adult smokers start before the age of 14, and 90 percent begin by the age of 19. No one is quite sure why this is but theories include incomplete brain operations. Decays must be under the age of 18. They must be ‘age appropriate’ in appearance. Decoys are directed to present identification upon request and to be truthful about their age if asked (although the law does permit decoys to lie about their age). If an illegal sale occurs, the violator is issued a misdemeanor citation far Penal Code 308(b), Furnishing Tobacco to a Minor. The decoy and violator are photographed together, and the tobacco product is returned for a refund.” When attempting to buy tobacco products from a store clerk, decoys follow a specific protocol. The three approaches to purchasing allowed under PC 308(a) are: * present iD without being asked and be truthful about age, only show ID if asked and be truthful about age, and wait until asked to show ID and then lie about age (allowed under STAKE Act since January 20021. Diane Ake, prevention specialist for CASA-Comrnunities Against Substance Abuse-works with youths in El Caion. Funded with monies from the Master Settlement Amendment, 15 teens trained about the provisions of PC 308la) formed a group called Students Together Against Alcohol 'N Drugs (STAAND). "Tobacco is an addictive and deadly product. Kids should not have such easy access to it," says Ake. A year ago selected El Cajon retailers sold cigarettes to minors at a rate of 18 percent. After a STAAND education and awareness campaign for those retailers, a second round of sting operations in November and December 2002 got a sales rate of only 12 percent In the North County communities of Del Mar, Solana Beach and Encinitas ten high school seniors are now leaders and activists in the battle to eliminate illegal tobacco sales. Under the guidance of Candace Porter, program director for the San Dieguito Alliance for Drug-Free Youth, the teens established the Youth Tobacco Prevention Corps in February 2002. Their accomplishments to date include: community assessment of 73 stores in their area that sell tobacco, which rates retailers on the amount of tobacco advertisements and promotional items visible bth inside and outside the store and where cigarettes are sold within the store, curriculum for children in grades 36 called The lies and the Truth About Tobacco, and the Five Star Merchant Award given to six of the 73 stores. Award criteria include stores lowest in tobacco advertising, not displaying cigarettes close to candy and videos, owner committed to not selling tobacco to minors and passing decoy sting operations. Challenges abound in the fight against illegal tobacco sales. Tobacco companies spend "$9.7 billion a year in advertising. That works out to $26 million per day," says Porter. Smith adds, "The tobacco industry targets those under 18. They target our youths on a constant basis by the strategic way they place advertising in stores." Peer pressure and available cigarettes from older siblings and parents rank high on the list. Many see the merchants as a maior factor. Some reasons a store may sell cigarettes to minors include high turnover rates for clerks, often the clerks selling tobacco are not the owner, busy stores and a lack of consistent training. Malone and Smith at The Palavra Tree deal with merchants who sell tobacco products other than cigarettes. These include Royal Blunts, Black & Milds, and Bidis, which are cigarettes from India. All of these products are more potent and therefore more harmful than regular cigarettes. "Merchants are merchants and they are in business to make money and to sell the product by any means necessary," says Malone. "Merchants in areas such as this, where there is a large degree of hopelessness, tend to exploit that hopelessness by providing people with things that they want, not need, in spite of it having a serious effect on public health." All are actively working for new laws to license merchants who sell tobacco. "Presently, merchants are only fined a small s amount, which is not much of an impediment to most retailers. If licensed, the threat of losing that license is much more of a barrier," says Harms. "You have to have a license to drive a car or sell alcohol, to do almost anything. We want to propose an ordinance so that these folks will be licensed as a potential means of having some control over their illegal behavior," adds Malone. He hopes that with the support of communiiy agencies, churches, youth groups and key council members, the case for tobacco licenses will go to the City Council for approval. Vaninetti is the facilitator of a panel discussion concerning youth and tobacco at the 2003 San Diego Substance Abuse Summit [see below). This yearly event brings together providers, policy setters and enforcement people. Harms and AL4 communiiy partners Smith, Ake and Porter as well as Detective Murphy are on the panel. Topics to be presented include Youth Purchase Survey, PC 308(al and local activities that help prevent tobacco access to those under age 18. In addition, some . - youths will share their experience in decoy operations, 17 For more information on the panel discussion, call Tony Vaninefi at 6 79/285-6576. For more information regarding community projects, callJuan Smith at 6 I9/263-7768, Diane Ake at 6 7 9/442-2727 ext. 7 7 7, and Candace Porfer at 760/942-8478. The Substance Abuse Summit Vlll Conference will take place Monday, March 24, and Tuesdoy, March 25,2003 at the Town and Country Convention Center, Son Diego, Calif. For more information visit www.substunceubusesummit. com/conference SAN DlEGO COUNTY EDITION SPRING 2003 PREVENTION FILE \'I NSTITUTE San Diego Model Ordinance Requiring a Tobacco Retailer License (with Annotations) Technical Assistance Legal Center 505 14'h Street, Suite 810 Oakland, CA 946 12 Phone: (5 10) 444-8252 Fax: (510) 444-8253 http : //talc .phi. org talc@phi.org The Technical Assistance Legal Center is a project of the Public Health Institute. This model provision was produced with funds received from the Tobacco Tax and Health Protection Act of 1988-Proposition 99-under grant #99-85069 with the California Department of Health Services, Tobacco Control Section 2 TABLE OF CONTENTS Section I . Findings ............................................................................................................... 3 Section I1 . Severability ........................................................................................................ 5 Section I11 . Amendments to Municipal Code ...................................................................... 5 Section L (* 1) 3 . Definitions ........................................................................................... 5 Section L (*2) ] . Requirements for a Tobacco Retailer License ..................................... 7 Section L (*3) ] . Application Procedure ......................................................................... 8 Section L ("4) ] . Issuance of License .............................................................................. 8 Section I (*5) ] . Other Requirements and Prohibitions ............................................... 10 Section (*6) ] . Fees for License ................................................................................. 10 Section L ("7) 3 . Licenses Nontransferable .................................................................. 11 Section (*8) ] . License Violation and Compliance Monitoring ................................ 11 Section F (*9) ] . Suspension or Revocation of the License .......................................... 13 Section (* 10) 3 . Administrative Fine ......................................................................... 16 Section [- (* 1 1) ] . Enforcement ..................................................................................... 18 Section (* 12) 3 . Private Enforcement ........................................................................ 20 San Diego Model Ordinance Requiring a Tobacco Retailer License 3 AN ORDINANCE OF THE I CITY / COUNTY ] OF I I REGARDING THE LICENSURE OF TOBACCO RETAILERS AND AMENDING THE [ ] MUNICIPAL CODE The [ Citv Council of the Citv / Board of Supervisors of the County ] of [ ] does ordain as follows: COMMENT: This is introductory boilerplate language that should be I adapted to the conventional form used in the jurisdiction. SECTION I. FINDINGS. The [ Citv Council of the City / Board of SuDervisors o f the Countvl of[-- ] hereby finds and declares as follows:’ WHEREAS, state law prohibits the sale or furnishing of cigarettes, tobacco products and smoking paraphernalia to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Cal. Pen. Code 308); and WHEREAS, state law requires that tobacco retailers check the identification of tobacco pur- chasers who reasonably appear to be under 18 years of age (Bus. & Prof. Code § 22956) and provides procedures for using persons under 18 years of age to conduct onsite compliance checks of tobacco retailers (Cal. Bus. & Prof. Code 0 22952); and WHEREAS, state law requires that tobacco retailers post a conspicuous notice at each point of sale stating that selling tobacco products to anyone under 18 years of age is illegal (Cal. Bus. & Prof. Code 22952, Cal. Pen. Code 4 308); and WHEREAS, state law prohibits the sale or display of cigarettes through a self-service display and prohibits public access to cigarettes without the assistance of a clerk (Cal. Bus. & Prof. Code 0 22962); and WHEREAS, state law prohibits the sale of “bidis” (hand-rolled filterless cigarettes imported primarily from India and Southeast Asian countries) except in adult-only establishments (Cal. Pen. Code 308.1); and WHEREAS, state law prohibits the manufacture, distribution, or sale of cigarettes in pack- ages of less than 20 and prohibits the manufacture, distribution, or sale of “roll-your-own” tobacco in packages containing less than 0.60 ounces of tobacco (Cal. Pen. Code 9 308.3); and WHEREAS, state law prohibits public school students from smoking or using tobacco prod- ucts while on campus, while attending school-sponsored activities, or while under the supervision or control of school district employees (Cal. Educ. Code 0 48901(a)); and ’ Each of the authorities identified in this model ordinance can be obtained from the Technical Assistant Legal Center at the address, phone, and e-mail address indicated on the first page of this model ordinance. San Diego Model Ordinance Requiring a Tobacco Retailer License 4 [ WHEREAS, ] [ discuss any local ordinances regulating the sale of tobacco products, such as a comdete self-service disDlav ban, a ban on cigarette vendinp machines, or a conditional use permit or other land use restriction on tobacco sales ] [ : and 1 WHEREAS, despite these restrictions, minors continue to obtain cigarettes and other tobacco products at alarming rates. Each year, an estimated 924 million packs of cigarettes are consumed by minors 12 to 17 years of age, yielding the tobacco industry $480 million in profits from un- derage smokers;’ and WHEREAS, in a 2001 California youth-buying survey, 17.1% of retailers surveyed unlaw- fully sold tobacco product to minor^;^ and WHEREAS, in a 2004 San Diego County youth-buying survey, 33.4% of retailers surveyed unlawfully sold tobacco products to minors; and WHEREAS, 88% of adults who have ever smoked tried their first cigarette by the age of 18 and the average age at which smokers try their first cigarette is 14’/2;4 and WHEREAS, [ C& / County ] has a substantial interest in promoting compliance with fed- eral, state, and local laws intended to regulate tobacco sales and use; in discouraging the illegal purchase of tobacco products by minors; in promoting compliance with laws prohibiting sales of cigarettes and tobacco products to minors; and finally, and most importantly, in protecting chil- dren from being lured into illegal activity through the misconduct of adults; and WHEREAS, the California courts in such cases as Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1989, and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993), have af- firmed the power of the [ Citv / County 1 to regulate business activity in order to discourage violations of law: and WHEREAS, a requirement for a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell or distribute cigarettes or other tobacco products to adults. It will, however, allow the [ City / Countv 1 to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco-related laws; and WHEREAS, 65% of California’s key opinion leaders surveyed support implementation of tobacco-licensing requirements.’ DiFranza & Librett, supra, at 1106 n.2. Cal. Dep’t Health Servs., Tobacco Control Section, Youth Tobacco Purchase Survey 2001 (forthcoming 2002) (upon release, survey results are expected to be available at http://www.dhs.ca.gov/tobacco/htrnllpressreleases.htm). Note that the youth sales rate cited above is a statewide average. Youth sales rates for a particular city or county may be significantly higher. Check with your local tobacco prevention project, usually located in the county Health Department, to see if local figures are available. U.S. Dep’t of Health & Human Servs. et al., Preventing Tobacco Use Among Young People: A Report ofthe Surgeon General 67 (1 994). Cal. Dep’t of Health Servs., Tobacco Control Section, Independent Evaluation ofthe California Tobacco Con- trol Prevention & Education Program: Wave 2 Data, 1998, Wave I & Wave 2 Data Comparisons 1996-1998 (ZOOI), available at http://www.dhs.ca.gov/tobacco/documents/.pdf (last updated April 24,200 1). 4 San Diego Model Ordinance Requiring a Tobacco Retailer License 5 NOW THEREFORE, it is the intent of the [ City Council / Board of Supervisors 1, in enact- ing this ordinance, to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalty provided therefore. COMMENT: These findings lay out the policy rationale for the ordi- nance. California Penal Code section 308(e) preempts local laws that are “inconsistent” with the state law that prohibits tobacco sales to minors and provides civil and criminal penalties. By regulating businesses in order to discourage violations of federal or state law but not increasing the penalties established by such laws, the City or County is staying within the safe harbor created by the Cohen and Bravo Vending cases. Cohen upheld San Francisco’s regulation of escort services to discourage prostitu- tion, while Bravo Vending upheld Rancho Mirage’s ban on tobacco vending machines, which was intended to discourage tobacco sales to minors. In addition to the Cohen and Bravo Vending cases, helpful authorities are EWAP, Inc. v. City of Los Angeles, 97 Cal. App. 3d 179, 191 (1979) (regulation of adult ar- cade to discourage lewd conduct), and Brix v. City of San Rafael, 92 Cal. App. 3d 47, 53 (1979) (regulation of massage parlors to 1 discourage prostitution). SECTION 11. SEVERABILITY. If any section, subsection, subdivision, paragraph, sen- tence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not af- fect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sen- tence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. or circumstance. The [ City Council / Board of Superv isors ] of the [ & / County 3 of [ 1 COMMENT: This is standard language. Often this “boilerplate” is found at the end of an ordinance but its location is irrelevant. It is placed here to simplify updating cross-references should the City or County wish to customize this model by adding or deleting sections. SECTION 111. [ Article / Section 1 of the [ ] Municipal Code is hereby amended to read as follows: Sec. [ (*1) 1. DEFINITIONS. The following words and phrases, whenever used in this article, shall have the meanings defined in this section unless the context clearly requires otherwise: (a) “Department” means [ ___ I. San Diego Model Ordinance Requiring a Tobacco Retailer License 6 COMMENT: This term is used in the ordinance to refer to the City or County agency charged with issuing licenses and possibly en- forcing the ordinance. In some areas, more than one agency may be involved in administering and/or enforcing the ordinance. (b) “Person” means any natural person, partnership, cooperative association, private cor- poration, personal representative, receiver, trustee, assignee, or any other legal entity. COMMENT: The Municipal Code likely contains a definition of I “person” and, if so, the definition provided here can be omitted. (c) “Proprietor” means a Person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a Person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of se- curity for debt. A managerial interest shall be deemed to exist when a Person can or does have, or can or does share, ultimate control over the day-to-day operations of a business. COMMENT: This term is defined in attempt to prevent sham own- ership changes made for the sole purpose of evading the license penalty provisions. (d) “Tobacco Product” means: (1) any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or other- wise distributed with the expectation that the product or matter will be introduced into the human body but does not include any product specifically approved by the Federal Food and Drug Administration for use in treating nicotine or tobacco product dependence. COMMENT: This is definition is based upon a common definition used in many tobacco control laws but also includes non-tobacco nicotine products such as nicotine water and nicotine lollipops. (e) “Tobacco Paraphernalia” means cigarette papers or wrappers, pipes, holders of smok- ing materials of all types, cigarette rolling machines, and any other item designed for the smoking or ingestion of Tobacco Products. COMMENT: This definition draws on the language of Penal Code section 308(a). Whether to regulate sales of Tobacco Parapher- nalia in addition to sales of Tobacco Products is a question of local policy. If only tobacco sales are to be regulated, both this definition and the words “Tobacco Paraphernalia” as used in the operative sections below, should be omitted. (f) “Tobacco Retailer” means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, Tobacco Products, or Tobacco Parapherna- lia; “Tobacco Retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, Tobacco Products, or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange. San Diego Model Ordinance Requiring a Tobacco Retailer License 7 COMMENT: These definitions only reach persons who sell To- bacco Products or exchange them for something of value. Tobacco-related products, such as t-shirts and the like, are not included. Sec. (“2) 1. REQUIREMENT FOR TOBACCO RETAILER LICENSE. (a) It shall be unlawful for any Person to act as a Tobacco Retailer without first obtaining and maintaining a valid Tobacco Retailer’s license pursuant to this [ each location at which that activity is to occur. / chanter ] for (b) No license may issue to authorize Tobacco Retailing at other than a fixed location. For example, Tobacco Retailing by Persons on foot and Tobacco Retailing from vehicles are prohibited. (c) No license may issue to authorize Tobacco Retailing at any location that is licensed under state law to serve alcoholic beverages for consumption on the premises (e.g., an “on- sale” license issued by the California Department of Alcoholic Beverage Control) and no li- cense may issue to authorize Tobacco Retailing at any location offering food for sale for consumption by guests on the premises. For example, Tobacco Retailing in bars and restau- rants is prohibited. (d) The license fee established pursuant to Section [ (*6) ] confers paid status upon a license for a term of one year. Each Tobacco Retailer shall apply for the renewal of his or her Tobacco Retailer’s license no later than thirty (30) days prior to expiration of the pay- ment term. COMMENT: The payment term of licenses is a matter for local pol- icy. If this ordinance is adopted as an amendment to a local, regulatory business license ordinance, many administrative de- tails, such as the term of licenses, may be covered by the existing license ordinance. It may be best to rely on those provi- sions to avoid unintended inconsistencies that can complicate enforcement of the ordinance. (e) Nothing in this [ article / chapter 1 shall be construed to grant any Person obtaining and maintaining a Tobacco Retailer’s license any status or right other than the right to act as a Tobacco Retailer at the location in the City / Chmty ] identified on the face of the license. For example, nothing in this [ article / chapter 1 shall be construed to render inapplicable, su- percede, or apply in lieu of any other provision of applicable law, including, without limitation, any condition or limitation on smoking in enclosed places of employment made applicable to business establishments by California Labor Code section 6404.5, COMMENT: Subsection (c) makes explicit the fact that granting a Tobacco Retailer license does not affect a Tobacco Retailer’s status under other local, state, or federal law. For example, ob- taining a local license does not transform a business into a “retail or wholesale tobacco shop” in which smoking is allowed pursuant to California Labor Code 6404.5(d)(4). San Diego Model Ordinance Requiring a Tobacco Retailer License 8 Sec. (“3) 1. APPLICATION PROCEDURE. Application for a Tobacco Retailer’s license shall be submitted in the name of each Proprietor proposing to conduct retail tobacco sales and shall be signed by each Proprietor or an authorized agent thereof. It is the responsibil- ity of each Proprietor to be informed of the laws affecting the issuance of a Tobacco Retailer’s license. A license that is issued in error or on the basis of false or misleading information sup- plied by a Proprietor may be revoked pursuant to Section [ -(*9)(c) ] of this [ article / chapter 1. All applications shall be submitted on a form supplied by the Department and shall contain the following information: 1. The name, address, and telephone number of each Proprietor. 2. The business name, address, and telephone number of the single fixed location for which a Tobacco Retailer’s license is sought. 3. The name and mailing address authorized by each Proprietor to receive all license-related communications and notices (the “Authorized Address”). If an Authorized Address is not sup- plied, each Proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph 2. above. 4. Whether or not any Proprietor has previously been issued a license pursuant to this [ & - cle / chapter ] that is, or was at any time, suspended or revoked and, if so, the dates of the suspension period or the date of revocation. 5. Such other information as the Department deems necessary for the administration or en- forcement of this ordinance. COMMENT: Again, if the ordinance is included in a comprehensive licensing ordinance, this section might be omitted. The fourth re- quirement is intended to allow the administrative agency to identify applicants who have previously had licenses suspended or revoked. The fifth requirement authorizes administrative and enforcement staff to establish application forms that require vari- ous types of information to aid effective operation and enforcement of the ordinance. For example, it may be useful to include in the application a statement, perhaps made under pen- alty of perjury, that the applicant has familiarized himself or herself with the legal requirements applicable to tobacco retailing. It would, of course, be helpful to provide information about those requirements to those who apply. Sec. [ - (*4) 1. ISSUANCE OF LICENSE. Upon the receipt of an application for a To- bacco Retailer’s license and the license fee, the Department shall issue a license unless substantial record evidence demonstrates one of the following bases for denial: (a) the application is incomplete or inaccurate; or (b) the application seeks authorization for Tobacco Retailing by a Proprietor for which or whom a suspension is in effect pursuant to Section [ (*8) ] of this 1 article / chaDter 1; San Diego Model Ordinance Requiring a Tobacco Retailer License 9 or by a Proprietor which or who has had a license revoked pursuant to Section [ (*9)(a)(4) ] of this [ article / chapter 1; or (c) the application seeks authorization for Tobacco Retailing at a location for which a suspension is in effect pursuant to Section [ -(*8) ] of this [ article / chaDter 1; or at a location which has had a license revoked pursuant to Section [ (*9)(a)(4) ] of this [ article / chaDter 1 provided, however, this subparagraph shall not constitute a basis for de- nial of a license if the applicant provides the [ & / County ] with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquir- ing the premises or business in an arm’s length transaction. For the purposes of this subparagraph, an “ann’s length transaction” is defined as a sale in good faith and for valu- able consideration that reflects the fair market value in the open market between two informed and willing parties, neither under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for the primary purpose of avoiding the effect of the violations of this [ article / chaDter 3 that occurred at the location, is presumed not to be an “arm’s length transaction”; (d) the application seeks authorization for Tobacco Retailing that is prohibited pursuant to Section [ (“2) 3 of this [ pursuant to this Code [ [ chapter / article 3 [ - ] (e.g., the zoning code) 1, or that is unlawful pursuant to any other local, state, or federal law. / article (e.g., mobile vending) 1, that is unlawhl COMMENT: Although a license technically should not be issued if prohibited elsewhere in the City or County code, it is valuable to make note of what other tobacco ordinances staff should take into consideration. For example, if the code contains a zoning or conditional use permit ordinance affecting tobacco retailers, the licensing ordinance should refer to it directly to assist staff in im- plementing the ordinance. This section makes issuance of licenses a mandatory, ministerial duty of staff unless record evidence can be developed supporting one of the four justifications for denial of the ordinance can be shown. “Substantial record evidence” is oral or written evidence within the City’s or County’s records that is sufficiently reliable and persuasive that a court will accept it. The usual test is that it must be the kind of evidence upon which responsible people rely in making important business, personal and other decisions. It is lawful to establish a discretionary license system, where li- censes are issued only after some form of hearing (which could be a “paper“ hearing conducted by mail) and individually tailored conditions of approval are imposed. However, given the likely volume of such licenses in most communities, this ordinance takes a less ambitious approach and will require less staff time and money to implement. Providing record evidence of the bases for denial under subsec- tions (b) and (c) should be simple and can take the form of a memo from planning staff or from staff members who maintain the records of suspensions and revocations. Proving that an ap plication is incomplete also will be simple. Proving that an San Diego Model Ordinance Requiring a Tobacco Retailer License 10 application contains false information will be more difficult and greater attention to the quality of evidence (i.e., its persuasive- ness and reliability) is therefore appropriate. If oral evidence is to be relied upon, it should be reduced to writing, as by a staff memo to the file that reports the oral complaint of a resident. Sec. 1 (*5) 1, OTHER REQUIREMENTS AND PROHIBITIONS, (a) DISPLAY OF LICENSE. Each license shall be prominently displayed in a publicly visible location at the licensed premises. (b) POSITIVE IDENTIFICATION REQUIRED. No Person shall engage in Tobacco Re- tailing without first examining the identification of the purchaser, if the purchaser reasonably appears under the age of twenty-seven (27) years old, and confirming that the proposed sale is to a purchaser who is at least the minimum age in state law for being sold the Tobacco Product or Tobacco Paraphernalia. (c) MINIMUM AGE FOR PERSONS SELLING TOBACCO. No Person shall engage in Tobacco Retailing if the Person is younger than the minimum age in state law for being sold or for possessing any Tobacco Product. Sec. [ - (*6) 1. FEES FOR LICENSE. The fee to issue or to renew a Tobacco Re- tailer’s license shall be established by resolution of the [ Citv Council / Board of SuDervisors 1. The fee shall be calculated so as to recover the total cost of both license administration and li- cense enforcement, including, for example, issuing the license, administering the license program, retailer education, retailer inspection and compliance checks, documentation of viola- tions, and prosecution of violators, but shall not exceed the cost of the total program. All fees shall be used to fund the program. Fees are nonrefundable except as may be required by law. COMMENT: California Government Code sections 66016-6601 8.5 govern the establishment of fees; other local requirements estab- lished by charter or ordinance, may apply as well. The Government Code requires a noticed public hearing. This ordi- nance provides that fees are established by resolution both because the Government Code permits the use of a resolution rather than an ordinance and because many cities and counties adopt an annual master fee-setting resolution that can be amended to include this fee. It is lawful to impose a fee on applicants in an amount sufficient to offset the cost of the entire tobacco enforcement program of the locality under such cases as Sindair Paint Co. v. Board of Equalization, 15 Cal. 4th 866 (I 997). The license fee can incorporate the cost of enforcing a// tobacco laws because a violation of any tobacco-related law is a basis for revocation or suspension of a license. For example, if the enforc- ing agency is the police department, a new officer could be hired and the cost of hire included in the fee so long as the efforts of a full-time officer (or the equivalent number of staff hours) are used to monitor and enforce tobacco laws in connection with monitor- ing compliance with the license. San Diego Model Ordinance Requiring a Tobacco Retailer License 11 One approach to setting the fee is to estimate the cost of admini- stration and enforcement of the licensing program. For example, estimate the number of stores in the city or county and how much time it will take a government employee to review applications and issue licenses. The fraction of that employee’s time can then be used to calculate the annual cost, based on the cost of that employee’s salary, benefits, and his or her share of administra- tive overhead such as rent, insurance, legal advice, etc. As for enforcement costs, calculate, for example, how many yearly in- spections are necessary (ideally one to four per retailer) and how much staff time each inspection demands. It is important to document these calculations for two reasons: to provide support for the fee amount; and, to refute a potential legal challenge claiming the fee exceeds the cost of administration and enforce- ment. Please contact TALC for an example of a fee calculation performed by the county of Santa Barbara prior to passage of that county’s licensing ordinance. Note that the City or County can avoid having to calculate staff time by mandating that a set amount of time, e.g., 15 hours a week, shall be spent on license enforcement activity (including enforcing the tobacco laws that give rise to a license violation). New staff could be hired to meet this mandate and the cost can ’ be incorporated into the license fee. Sec. [ (“7) 1. LICENSES NONTRANSFERABLE. A Tobacco Retailer’s license is nontransferable. If the information required in the license application pursuant to Sec- tion [ (“3) ] , items 1,2, or 3, changes, a new Tobacco Retailer’s license is required before the business may continue to act as a Tobacco Retailer. For example, if a Proprietor to whom a license has been issued changes business location, that Proprietor must apply for a new license prior to acting as a Tobacco Retailer at the new location. Or if the business is sold, the new owner must apply for a license for that location before acting as a Tobacco Retailer. Sec. [ - (*8) 1. LICENSE VIOLATION AND COMPLIANCE MONITORING. (a) VIOLATION OF TOBACCO-RELATED LAWS. It shall be a violation of a To- bacco Retailer’s license for a licensee or his or her agent or employee to violate any local, state, or federal tobacco-related law. COMMENT: This provision makes licensing an effective tool for comprehensively enforcing tobacco control laws. A city or county can use the suspension/revocation provisions of a license to en- courage compliance with all tobacco-related laws, even laws that the city or county might not otherwise have authority to enforce, such as the Stop Tobacco Access to Kids Enforcement Act (“STAKE Act,” Bus. & Prof. Code § 22958). This provision also gives a city or county additional enforcement options: enforcing an underlying tobacco law, such as not selling tobacco to minors (Penal Code 308); and/or discouraging illegal behavior by suspending or revoking a license. Losing the right to sell tobacco will likely be a bigger financial deterrent than an occasional fine imposed under other laws. San Diego Model Ordinance Requiring a Tobacco Retailer License TOBACCO RETAILER LICENSE Questions and Answers What is tobacco licensing? A tobacco retail license requires retailers to obtain a license to sell tobacco products. If the retailer sells to minors, or violates any other state or local law pertaining to tobacco, the license can be suspended or revoked. Are there existing laws which require tobacco retailers to have a license to sell tobacco? Currently there is no statewide law that requires a tobacco retailer to be licensed. However, 32 California communities require tobacco retailers to be licensed. What are the benefits of tobacco retail licensing? 0 Sends a message to all tobacco retailers that the community is serious about protecting kids from tobacco products. Helps determine who in the community sells tobacco. Increases compliance with laws designed to eliminate the sale of tobacco to minors by creating a greater deterrent than fines alone for violating the law. Increases compliance with all tobacco-related laws. Creates a level playing field for all members of the business community. Licensing and related enforcement are very cost-effective measures for saving lives (up to 1,000 as cost effective as mammography), according to leading researchers in the area of youth access. 0 0 0 0 0 How much will a license cost ? The license fee should reflect the costs of administering and enforcing the licensing program; enforcement is necessary to ensure retailer compliance. The cost will be determined by the city and may be a flat fee or a fee based on the volume of tobacco each retailer sells. AMERICAN LUNG ASSOCIATIONe of Son Diego and lmberial Counties communities halition Questions and Answers About AB 71 Statewide Tobacco Licensing Law What does Assembly Bill 71, the new statewide tobacco licensing law, do? AB 71 sets up a new statewide program that requires retail stores, as well as tobacco wholesalers, distributors, manufacturers and importers to get a license. The primary purpose of the new licensing program is to reduce cigarette smuggling and the resulting loss of tobacco tax revenues to the state by having a stepped-up enforcement program to catch smugglers and cigarette counterfeiters. In addition, AB 71 sets up a system for suspending or revoking a tobacco retailer's license if they are convicted a certain number of times for selling tobacco to minors. Do businesses have to get other licenses for other things, or is this an unusual requirement? It is customary for businesses in California to obtain some kind of permit or license in order to conduct business, sell products or offer services. These licenses and permits generally require an annual fee or payment. Can a retailer lose their tobacco license for selling tobacco to minors under AB 71? In theory, yes, but, in reality, no. To start with, the penalties that could lead to the revocation or suspension of a tobacco license for selling tobacco to minors only go into effect in years when the statewide sales of tobacco to minors rate is greater than 13 percent. On January 1, 2004, when the bill goes into effect, this "trigger" mechanism will mbe activated because the 2003 statewide illegal sales rate was 12.2 percent. Any convictions that occur under the laws prohibiting tobacco sales to minors, Penal Code (PC) Section 308 or the Stop Tobacco Access to Kids Enforcement (STAKE) Act, during this time will have no effect on a tobacco retailer's state license. Even in years when the state's illegal sales rate is greater than 13 percent a retailer is at little to no risk of losing their license. Under AB 71, the state would not suspend a retailer's license until that retailer has been convicted of selling to minors four times in one year. It takes eight convictions in two years before a license can be revoked. These conviction rates are unrealistic considering that since 1995 the STAKE program has not fined the same retailer more than three times, due to a lack of sufficient funding to do enforcement compliance checks and inspections. Doesn't AB 71 provide funding for increased enforcement, to conduct undercover stings and other enforcement actions aimed at catching retailers illegally selling tobacco to minors? No. AB 71 provides no fundinq for enforcement to reduce illegal sales of tobacco to minors . The primary purpose of AB 71 is to address cigarette smuggling, not to help reduce illegal sales of tobacco to minors. Does a local ordinance have to follow the state guidelines in AB 71 for triggering the suspension or revocation of a tobacco license if the retailer is caught selling tobacco to minors? No. The state law does not dictate or restrict the penalties included in local licensing ordinances for violations of tobacco control laws. Does AB 71 preempt cities or counties from passing their own local tobacco licensing ordinance? NO. AB 71 specifically does NOT preempt local governments from passing their own tobacco licensing ordinance, including annual fees on retailers to pay for local enforcement of the laws against selling tobacco to minors. In fact, the anti-preemption language in AB 71 supports stronger local Hicensing ordinances. This language states, “Nothing in this division preempts or supersedes any llocal tobacco control law other than those related to the collection of state taxes. Local licensing Haws may provide for the suspension or revocation of the local license for any violation of a state tobacco control taw.” Can a city or county charge a retailer an annual tobacco license fee even though they have to pay for a license under AB 71? Yes. AB 71 requires a tobacco retailer to pay a $1 00 one-time only licensing fee. There is nothing in AB 71 or any other state law that prohibits a city or county from requiring an annual tobacco license fee. In addition, AB 71 will not provide any funding for enforcement of laws against selling tobacco to children, so local cities and counties will need to consider fees on local retailers in order to help reduce illegal sales of tobacco to minors. I s it legal to require a retailer to pay for a tobacco license from the state and from a city or county? Isn’t that excessive? It is neither illegal nor excessive. The two fees combat two different issues surrounding tobacco sales in California - the state fee pays to combat smuggling and black market cigarettes, and a local fee would pay to combat sales to youth. These fees are the cost to regulate tobacco sales, not punishment for selling tobacco. Many businesses in California must obtain licenses and pay fees for the privilege of conducting their business. Furthermore, the state fee is only a one-time $1 00 fee. Examples of these fees include: . . Stores that sale beer, wine and sprits for consumption off premises: original fee $12,000 - Annual renewal fee $446. State Gambling Incense - $500 application fee. Annual fee based on the number of tables in the facility. Pharmacy - $400 application - $250 annual fee Produce Dealers - $1 00-$500 annual fee. Furniture and bedding retailer - $240 biennially Retail Water Facility License - $325.80 - adjusted annually Guide Dog School License - $250 application - annual fee based on expenditures. . . If the double fee does create a good deal of opposition, one option would be to deduct the $1 00 from the retailers’ fee in the year that the retailer is required to pay both fees. The requirement to obtain both a local and a state license is not unique to tobacco retailers. For example, gambling facilities (card rooms) in California must have both a state and local license. Shouldn’t cities and counties wait and see what happens under AB 71 before considering a local tobacco licensing ordinance? No. The sales to minors provisions in AB 71 are so weak and there is no reason to believe that they will do anything to protect the youth in your community. AB 71 does not provide increased funding to enforce sales to minors laws. In fact, even if enforcement occurs, a conviction would not matter under AB 71 unless the state’s illegal sales rate goes above 13 percent. However, last year when the state's sales to minors rate was established at 12.2 percent, many communities that conducted local youth purchase surveys found their rates to be much higher. Strong local tobacco retail licensing programs that fully fund enforcement measures are needed to make a difference. Can a local city or county pass a law when the state already has a law that does the same thing? Yes, AB 71 in no way preempts locals' efforts. However, if locals are interested in passing good public policy that makes a difference in their community they should want an ordinance that does much more than AB 71. The following are examples of provisions that local tobacco retail licensing ordinances can include that AB 71 does not include: . An annual fee that funds an enforcement program. The establishment of an enforcement plan that requires a specific number of compliance checks per year, per retail outlet. . Coordination of tobacco regulations so that a violation of any existing local, state or federal tobacco regulation violates the local license. A ban on cigarette sales by mobile venders, bars and card rooms. Language that requires retailers to remove tobacco advertisements when their license is suspended or revoked. a Why do we need local enforcement when the state already conducts enforcement programs to reduce illegal sales of tobacco to minors? The State's enforcement program conducts approximately 2,500 compliance checks a year. That means that the state's enforcement program checks just about 3% of the estimated 80,000 tobacco retailers in California each year (The California State Board of Equalization estimates that there are 80,000 tobacco retailers state wide). of AB 71. Yet enforcement has shown to be the most significant factor in changing retailer behavior. Clearly, more enforcement is needed. The amount of enforcement will not increase with the passage If the state license is a one-time only $100 fee, why would a city or county need to charge another fee for its local licensing program? Good public policy requires that sufficient funding be allocated to the program so that it may achieve its stated goals. For a local licensing ordinance to be effective, that is, to reduce the illegal sales of tobacco to minors in the city or county, it will require a sustainable funding source to pay for local enforcement. Whether it is assigned to the police department, sheriff or the health department, conducting the enforcement actions leading to reduced illegal tobacco sales will require local funding. AB 71 is not designed to specifically accomplish the goal of reducing illegal sales to minors, so it doesn't provides enforcement funding for this purpose. Source: Center for Tobacco Policy & Organizing, ALA of California. G:\TOBACCO\TFC Grant\Obj. 4 Enact Tobacco Control PoliciesEl Tobacco Policy Fact SheetsWew AB 71 Fact Shett.doc communities boa I i t i o n Overview Tobacco-Free Communities Model Ordinance Summary The proposed Tobacco-Free Communities Model Ordinance is a comprehensive approach to stopping the illegal sale of tobacco to children and protecting the public from secondhand smoke through Licensing retailers to sell tobacco Restricting the location and density of tobacco retailers (through land use controls) Prohibiting self-service sales of all tobacco products and paraphernalia at retail locations Prohibiting smoking in unenclosed areas accessible to the public Licensing Tobacco Retailers Prohibits mobile tobacco sales Addresses deficiencies in new state retailer license law (AB 71) Requires compliance with all existing tobacco control laws as a condition of holding the license Prohibits sale of tobacco in restaurants and bars Funds enforcement and administration of program through licensing fee Requires minimum number of annual enforcement operations Provides automatic immunity for youth decoys Requires removal of tobacco products and advertising for suspended or revoked licenses Imposes administrative penalties for selling tobacco without a license Restricting the Location of Tobacco Retailers * Grand-fathers in existing retailers Prohibits location of significant tobacco retailers like Cigarettes Cheaper within 1,000 feet of areas which children frequent Limits the density of all tobacco retailers Prohibiting Self-service Sales of Tobacco Products and Paraphernalia Closes loophole in state law by prohibiting self-service sales of all tobacco products and tobacco paraphernalia Requires retailers to display any tobacco products or paraphernalia in a locked cabinet Protecting the Public from Secondhand Smoke 0 Prohibits smoking in unenclosed areas including beaches, parks, restaurant patios, transit waiting areas, building entrances, and any outdoor place accessible to the public Prohibits smoking within 50 feet of any municipal building and within 20 feet of all other buildings Prohibits smoking in all enclosed and unenclosed common areas of multi-unit residential buildings Requires 75% of hotel and motel guest rooms to be permanently designated non-smoking Requires “no-smoking’’ signs be posted everywhere smoking is prohibited In addition to the forgoing, all provisions: Define violations of any tobacco control ordinance as a public nuisance and unfair business practice Provide for private enforcement in small claims court * 2004 County of San Diego Tobacco Sales to Minors Study Summary Results of Youth Purchase Survey of 873 Tobacco Retailers March 2004* Participating Agencies American Lung Association of San Diego & Imperial Counties Communities Against Substance Abuse Coronado SAFE Palavra Tree Institute for Public Strategies Labor’s Community Service Agency North Inland Community Prevention Program San Dieguito Alliance for Drug-Free Youth Union of Pan Asian Communities Vista Community Clinic Funding Agency County of San Diego, Tobacco Control Resource Program Report Prepared by Marianne Brown, MPH COUNTY OF SAN DIEGO TOBACCO SALES TO MINORS STUDY March 2004 - " - __ . ~ --.~"-_II_ - - " -_--1^1 Introduction With funding from the San Diego County Tobacco Control Resource Program, the American Lung Association coordinated a countywide youth purchase survey from January to March 2004 to determine the rate of illegal tobacco sales to minors. City/ Community La Mesa San Diego El Cajon The effort involved ten agencies, 3 1 adult volunteers and 62 sixteen and seventeen year-old minors who attempted to purchase tobacco from 1,065 stores throughout San Diego County. Participating agencies are members of the San Diego County Tobacco Control Coalition and the Tobacco-Free Communities Coalition and included the American Lung Association, CASA, Coronado SAFE, Palavra Tree, Institute for Public Health Strategies, Labor's Community Service Agency, North Inland Community Prevention Program, San Dieguito Alliance for Drug-Free Youth, Union of Pan Asian Communities and Vista Community Clinic. No. of Stores 'YO Sold Surveyed 40 57.5 264 44.3 80 40.0 Local law enforcement was notified prior to the survey and a letter granting immunity from prosecution was obtained from the San Diego District Attorney's office. National City Unincolporated Areas Encinitas Vista Carlsbad Imperial Beach Santee Survey Results Countywide, minors were able to purchase tobacco products in 296 out of 873 stores, yielding an illegal sales rate of 33.9%. Following is a breakdown for 16 of the county's 18 cities (Escondido and San Marcos were not included due to resource limitations), as well as for three communities in the unincorporated areas: 47 36.2 74 32.4 44 29.5 58 29.3 31 29.0 14 28.6 16 25.0 Illegal Sales Rate by Community American Lung Association of San Diego and Imperial Counties 2 Revised 9/23/04 Illegal sales rates were also calculated by region and were found to vary significantly. (Note: the rate for North Inland must be interpreted with caution due to the small sample size and lack of data from Escondido and San Marcos.) Results are shown below: Illegal Sales Rate by Region - City of San Diego East County I Region I No. of Stores I % Sold Surveyed 264 44.3 222 38.3 Store Type No. of Stores Surveved North Coastal North Inland (excludes Escondido and San Marcos TOTAL 873 33.9% Yo Sold I Illegal sales rates were also calculated by store type. DeWmeatlproduce stores were more than five times likely to sell than drugstores/pharmacies. American Lung Association of San Diego and Imperial Counties 3 Revised 9/23/04 Illegal Sales Rate by Selected* Store Chains Long’s Drugs Stater Bros. Wal-Mart TOTAL I Chain/Franchise I NO. of Stores I YO Sold I 13 0.0 5 0.0 7 0.0 433 * Chains with less thanfive stores surveyed not included in the table Data Collection Selection of Stores Obtaining an accurate list of retailers that sell tobacco was a challenging task since retailers are not required to obtain a local license to sell tobacco. A list of 2,478 retail markets ZikeZy to sell tobacco was obtained from the San Diego County Department of Environmental Health Services. Stores in geographically outlying areas and those in areas with less than 5 stores were eliminated from the study sample, leaving 2,209 stores. From that group, target numbers of stores per area were calculated to obtain city- and region-wide illegal sales estimates yielding a total sample of 1,065 stores. Surveys were completed for 873 of the 1,065 stores, yielding a completion rate of 82%. Purchase Attempt Protocol The same protocol was used in all purchase attempts to ensure consistency of the data. However, participating agencies were allowed to tailor the protocol to their community. For example, youth participating in the surveys conducted in southeast San Diego tried to purchase blunts, swishers and small cigars, as these products are very popular in that part of the city. All youth and adult survey participants received the same training from the American Lung Association and from participating agencies to further ensure consistency in data collection. After being driven to each store by an adult volunteer, youth entered the store and asked the store clerk for tobacco. If the clerk asked for ID and the youth had one, it was presented to the clerk. If the youth did not have ID, he or she stated so and would also claim that he or she “was old enough”. American Lung Association of San Diego and Imperial Counties 4 Revised 9/23/04 This protocol was used to most accurately reflect how kids actually obtain tobacco. State law prohibits retailers from selling tobacco to minors but a recent survey conducted by the California Department of Health Services found that 62% of kids in California who use tobacco think that it is easy to obtain it. Discussion of Findings Minors' ability to buy cigarettes illegally varied significantly between cites and regions. Illegal sales rates by city ranged from 0% in Coronado, Del Mar, and Solana Beach to 57.5% in La Mesa. Rates by region varied widely from 17.9% in a small North County Inland sample to 44.3% in the City of San Diego. Illegal sales by store type varied widely. The highest sales rate was found in deli/meat/produce markets (70%). Sales rates ranged from 28.4% to 51.3% for retailers such as discount stores, gas stations, independent markets, convenience stores, supermarkets and liquor stores. The lowest rates were found in drugstores/pharmacies (1 3.5%) and tobacco shops (0%). Nearly 10% of the 1,065 stores in the sample did not stock tobacco products at all. Statistical analyses revealed that although both region and store type were related to illegal sales, region of the county was the strongestpredictor of minors' ability to buy tobacco products. Sales clerks asked for minors' ID 73% of the time. When salesclerks asked for IDS, the sales rate was the lowest at 14.3%. When sales clerks did not ask for ID, minors were able to buy tobacco 88% of the time. Frequent Comments Noted by Youth from Sales Clerks That Sold The only question was "Are you old enough?' I said yes. Asked if I was 18, I said yes, and then he sold to me. Ask for ID, said I didn't have it, then sold it to me. I showed ID, he laughed and took money. Clerk warned me to bring ID next time. Clerk said no but then he slid them to me. Cashier skipped register entry asking for ID entry. Asked if I wanted matches. Offered to get another pack-buy one get one free sale. I didn't have enough money so the clerk asked if I wanted a cheaper pack. Cashier charged $5 and didn't ring it in the cash register. Cashier said to hurry up! Thank you, come again. American Lung Association of San Diego and Imperial Counties 5 Revised 9/23/04 1 It’s time to license tobacco sales BARBARA MANNINO and JUDl STRANG tobacco to minors accounted for 37 percent of the market in 2002. A year after enforcing its tobacco retail licensing or- Selling tobacco to kids has dinance, which suspends the been illegal for more than licenses of repeat offenders, 100 years, yet a recent study Contra Costa’s illegal sales of of more than 800 San Diego tobacco fell to 2 percent. County retailers, co- Tobacco and kids ordinated by the are a deadly combi- American Lung As- nation. sociation, found . Nicotine addic- that 33 percent of tion takes hold them broke the law. In Carls- faster in children than in bad, 30 percent of retailers adults, often within a few sold tobacco to a minor; 29.5 weeks of the first cigarette. percent sold in Encinitas, .The Centers for Disease 27.9 percent inVista and 18.6 Control and Prevention has percent in Oceanside. found that the younger a per- Kudos to retailers surveyed son is when he or she starts in Del Mar and Solana Beach: smoking, the more difficult it None of them sold tobacco to is to quit. our youth participants. More than 74 percent of The Tobacco-Free Cornmu- California’s adult smokers nities Coalition has spent started smoking before they years trying to educate retail- were 18. ers about the long-term con- If we can prevent teens fmm sequences of selling tobacco smoking by reducing their ac- to children, but too many re- cess to tobacco products, we tailers disregard the law. can reduce the temble finan- We must protect our chil- cial, emotional and physical toll dren by enacting tough laws that tobacco use causes. with meaningful penalties for The costs of tobacco addic- lawbreakers, or we risk losing tion are as devastating as its another generation to tobacco emotional and physical tolls. addiction and tobacco-related In 1999, smoking cost San disease. Licensing tobacco re- Diego County $1.2 billion in tailers would send the message direct health-care costs and that our community is serious lost productivity due to ill- about protecting ow kids. ness and premature death. These laws work. In Contra That’s $2,975 per smoker - Costa County7 illegal sales of $4.43 per resident. Irresponsible retailers who break the law are engaging in unfair competitive practices and forcing all of us to shoul- der tobacco’s enormous eco- nomic burden. Research shows that self- policing programs such as the tobacco industry‘s “We Card” program are not effective. The recently enacted California Cigarette and Tobacco Prod- ucts Licensing Act of 2003, AB 71, requires any business that sells tobacco to have and dis- play a tobacco retailer’s li- cense issued by the California State Board of Equalization. But this law is designed to combat smuggling and coun- terfeiting, not to reduce ille- gal sales to minors. The good news is that AB 71 allows communities to en- act their own, more stringent licensing laws. Stiff penalties, including suspension or reve cation of licenses, can help enforcement agencies battle illegal sales. Our cities should enact such laws. We must protect our children by ensuring that the tobacco industry does not ensnare a new generation of tobacco addicts. Barbara Mannino is executive director of the Vista Community Clinic. Judi Strang is executive director of the San Dieguito Alliance for Drug-Free Youth. I u m