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CITY COUNCIL AGENDA ITEM NO. 10

Meeting Date:  June 27, 2000

Subject/Title:     Second Reading of Ordinance 636 amending Brentwood Municipal Code Title 8 to add a new Chapter 8.36 Relating to Restrictions on Tobacco Advertising Promotion.

Submitted by:    Dennis Beougher, City Attorney

Approved by:     Jon Elam, City Manager

RECOMMENDATION        

Second reading of Ordinance 636 amending the Brentwood Municipal Code Title 8 (Health and Safety) to add a new Chapter 8.36 relating to restrictions on tobacco advertising promotion.

PREVIOUS ACTION

This ordinance was introduced and had first reading at the City Council meeting of June 13, 2000.

BACKGROUND

Recent indicators show youth tobacco use is rising dramatically locally, statewide, and nationally.  Two primary factors contributing to youth tobacco use are (1) tobacco marketing and (2) ease of youth access to tobacco products.   Despite the recent 1998 Master Settlement Agreement between the attorney generals of forty six states, including California’s attorney general, and the tobacco industry, there are regulations that cities can do to increase the protection for minors from tobacco products.

Information developed during the tobacco litigation demonstrates that tobacco companies were targeting teenage smokers, as referenced in the findings included with the proposed ordinance.  The United States Surgeon General has declared nicotine, a key ingredient of cigarettes and tobacco products, is as addictive as cocaine or heroin; yet no other addictive product or drug is as accessible to teenagers or as heavily advertised and promoted to teenagers as tobacco products.  Minors using tobacco products are necessarily in violation of the laws regulating their access to tobacco products.

Federal law prohibits the advertising of tobacco products on radio and television, in part, because of substantial evidence showing that the most persuasive advertising was being conducted on radio and television, and these broadcasts were particularly aimed at reaching a large audience of youth.  State law further prohibits the sale or furnishing of cigarettes and tobacco products to minors, as well as the purchase, receipt, or possession of tobacco products by minors.  Penal Code Section 308.  State law also prohibits public school students from smoking or using tobacco products while on campus or attending school-sponsored activities or under the supervision or control of school district employees.  Education Code Section 48901(b).

Despite these restrictions, minors continue to be exposed to and influenced by tobacco advertising and to obtain tobacco products at a high rate.   The average age at which smokers try their first cigarette is 14 ½.   The prevalence of current cigarette smoking among high school students rose 32% from 1991 to 1997, from 27.5% to 36.4%.   Each year an estimated 924 million packs of cigarettes are consumed by minors 12 to 17 years old.    Eleven children become regular smokers every day in Contra Costa County.      

The 1971 Federal Cigarette Labeling and Advertising Act preempts cities from making laws based upon health.  Therefore the proposed ordinance is not a health regulation.  State Penal Code section 308(a) preempts cities from fining retailers that sell tobacco to minors.  Cities can, however, license retailers to discourage them from violating PC 308, just as cities can license massage parlors to discourage their illegal activities.  The First Amendment is not violated by the ordinance’s restrictions because it meets the strict criteria of commercial speech regulation.  As a result of these regulations and restrictions, the city’s proposed ordinance is based upon the intention to restrict youth access to tobacco products and to restrict tobacco advertising targeting youth.            

The proposed ordinance closely follows the model established by Contra Costa County and is similar to legislation enacted by Walnut Creek, Pittsburg, and other Contra Costa cities.  A summary of the provisions are as follows:

1)       Regulation of Tobacco Advertising—restricts tobacco advertising near elementary and secondary schools and public playgrounds (the latter is defined as having equipment such as swings and seesaws, baseball diamonds or basketball courts).   Specifically:

Prohibits outdoor tobacco advertising in a publicly visible location within 1600 feet of  an elementary or secondary school, public playground or playground area in a public park.                                               

2)          Regulation of Tobacco Promotions and Sponsorship of Events

Prohibits the marketing, distribution or sale of tobacco promotional gear to minors.

3)          Prohibition of Self-Service Tobacco Displays

Prohibits self-service displays of tobacco products (e.g. counter top, rack, or open shelf that allows self-service sales for any tobacco product other than vendor assisted sales

Requires tobacco products to kept in a locked case or behind the counter requiring employee assistance for sale.

4)    Licensure of Tobacco Retailers

Requires retailers to get a tobacco retailers license

Suspends the license for repeated violations

Subjects licensed retailers to inspections

Creates an appeal process                   

Violation of this ordinance may result in the imposition of fines.  The City Manager or his agent is designated to administer the ordinance and to enforce its provisions.  Any appeal related to the suspension or revocation of a retailer’s tobacco retail license will be made to the City Manager or his designee, subject to a possible appeal to the City Council.

ORDINANCE NO. 636

 AN ORDINANCE OF THE CITY OF BRENTWOOD AMENDING SECTION 8 (HEALTH AND SAFETY) BY ADDING A NEW CHAPTER 8.36 RELATING TO RESTRICTIONS ON TOBACCO ADVERTISING PROMOTION

THE CITY COUNCIL OF THE CITY OF BRENTWOOD DOES HEREBY ORDAIN AS FOLLOWS:

DIVISION I.  TITLE 8, CHAPTER 8.36 IS HEREBY ADDED TO READ AS FOLLOWS:

8.36.10 Definitions

The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it is apparent that they have a different meaning:

A.       “Advertising display sign” means a sign, billboard, poster, free-standing sign, balloon, pennant or banner that is temporarily or permanently placed on or affixed to the ground, the sidewalk, a pole or post, a fence, or a building, or is displayed in the window or doors of a commercial establishment, and that is used to advertise or promote products.  A person while wearing a shirt with tobacco product advertising or a tattoo on a person shall not be considered an advertising display sign.

B.        “City Manager” means the City Manager for the City of Brentwood or his or her designee.

C.       “Mobile Billboard” means any sign, placard, billboard, or other advertisement display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right of way or on private property and visible to the public for a duration of time and in a manner which clearly indicates that the sign is for advertising products illegal to sell to minors.  For the purpose of this chapter, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products and not parked within a public right of way or a private property and not visible to the public for a duration of time and in a manner which clearly indicates that the sign is for advertising products illegal to sell to minors.

D.       “Person” means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or other legal entity.

E.        “Promote” or “Promotion” means a display of any logo, brand name, character, graphics, colors, designs, or recognizable color or pattern of colors, or any other indicia or product identification with, or similar to, or identifiable with, those used for any particular brand of tobacco product.

F.        “Publicly Visible Location” means any outdoor location that is visible from any street, sidewalk, or other public thoroughfare, or any location inside a commercial establishment immediately adjacent to a window or door where such location is visible from any street, sidewalk, or other public thoroughfare.

G.       “Tobacco Product” shall mean any substance containing tobacco.

H.       “Tobacco Retailer” shall mean any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products or tobacco paraphernalia,  “Tobacco Retailing” shall mean the doing of any of these things.

8.36.20                        Restriction on advertising tobacco products

No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of cigarettes or tobacco products on an advertising display sign in a publicly visible location within 1600 feet of a perimeter of an elementary or secondary school, public playground or playground area in a public park (e.g., a public park with equipment such as swings and seesaws, baseball diamonds or basketball courts.)

8.36.30                          Exceptions

The restrictions contained in section 8.36.020 shall not apply to advertising or promotions for tobacco products:

A.        Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from the street, sidewalk or other public thoroughfare.

B.        On vehicles, other than mobile billboards.

C.        On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product.

D.        On tobacco product packaging.

8.36.40                          Distribution of promotional items to minors

No person may market, license, distribute, sell, or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling message, recognizable color or pattern of color, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product.

8.36.50                          Self-service displays

It shall be unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco product by means of self-service display, rack, counter top or shelf that allows self-service sales for any tobacco product other than vendor-assisted sales.

8.36.60                            Vendor assistance

All tobacco products shall be offered for sale exclusively be means of vendor assistance, with tobacco products in a case that only the vendor shall have access, or in an area not accessible to the public, and requiring employee assistance to retrieve the tobacco products.

8.36.70                             Administration and implementation

Except as otherwise provided, this chapter shall be administered by the City Manager who may develop guidelines to ensure implementation of this chapter.

8.36.80                             Violations

A.          The City Manager shall investigate after receipt of a written complaint submitted by any private citizen or City officer or employee concerning any advertising or promotion prohibited by this chapter.  The City Manager may serve a written ten  (10) day notice upon the person responsible for the alleged advertising display sign or promotion or self-service display prohibited by this chapter.  The written notice shall require the person to whom it is sent to either correct the violation within ten (10) day period or submit, in writing, a response to the claim of violation.  The City Manager shall review any written response and shall determine whether or not the issue is a violation.  This determination shall be in writing and a copy of the determination shall be sent to the person making the written complaint and to the person who is alleged to have engaged in the violation.

B.           Failure to correct specified violations may result in enforcement by any remedy provided by this code.  If three violation notices, whether the violation involves the same or different displays or promotions, have been served on the same person within a thirty day period, an enforcement action may be initiated against that person without the serving of another notice, if the violation occurs within ninety days of the serving of the third notice.

C.          Each separate display of tobacco advertising or promotion prohibited by this chapter shall be considered a separate violation.

D.          For purposes of determining liability of persons, firms or corporations, controlling franchises or business operations in multiple locations, each individual franchise or business location shall be deemed a separate entity.

8.36.90                              Intent as to additional legal restrictions and remedies

Nothing in this chapter is intended to alter the obligations or restrictions which apply to any person under any other law governing signs, billboards, tobacco advertising or any other matter covered by this chapter.  The remedies set forth in this chapter are not exclusive.  If any action prohibited by this chapter is also unlawful under any other law, the penalties and remedies under such other law may be pursued in addition to those provided in this chapter.

8.36.100                           Tobacco retailer license

A.           It shall be unlawful for any retailer, individual or entity to sell or offer for sale any tobacco product without first obtaining and maintaining a valid tobacco retailer license for each location where such sales conducted.

B.           This license shall be renewed annually.

8.36.110                             Retailer license application procedure

A retailer, individual or entity who is required to obtain a tobacco retailer license pursuant to this code shall submit an application in the name of the retailer, individual or entity and be signed by the retailer, individual or entity or agent with written authority to act for same.  All applications shall be submitted on a form supplied by the City Manager and shall contain the following information.

1.      The name, address and telephone number of the business owner and manager.

2.      The business name, address and telephone number of each establishment where tobacco is to be sold.

3.      Such other information as the City Clerk determines is necessary.

 8.36.120                               Issuance and display of license

Upon receipt of a completed application for a tobacco retailers license, including payment of the license fee, and the completion of an inspection of the premises, if required by the City Manager, to determine compliance with this chapter, the City Manager shall issue a license.   Each licensee shall prominently display the license at the location where tobacco sales are conducted.

8.36.120                               Fees

The fee for a tobacco retailer’s license shall be set by the City’s Master Fee Schedule in the amount which covers the City cost for processing the application, inspecting the tobacco retailer’s business premises to determine compliance with the standards contained in this chapter and implementing the licensing program.

8.36.140                                License not transferable

A tobacco retailers license is not transferable.  If there is a change in location, a new tobacco retail license shall be issued for the new address upon receipt of an application for a change of location.  The new license shall retain the same expiration date as the previous one.

8.36.150                                      Suspension of  license

A.            A tobacco retailers license may be suspended by the City Manager upon a finding, after notice and hearing, that a violation of this chapter, or any other applicable state or federal law governing the sale and distribution of tobacco, has occurred at the licensee’s business premises.

B.             The City Manager may suspend the license to sell tobacco products for up to sixty (60) days the first time the City Manager makes a finding of violation.  The second time the City Manager makes a finding of violation, within twelve (12) months of the first violation, the license may be suspended for up to one hundred twenty (120) days.   The third time the City Manager makes a finding of violation, within twelve (12) months of the first violation, the licensee’s license may be suspended up to one year.

C.            Any suspension of a tobacco retailer’s license may be appealed to the City Council within ten days of receipt of the City Manager’s decision to suspend the license.  Such appeal shall be in writing and must be accompanied by payment of the applicable appeal fee specified in the City’s Master Fee Schedule.

8.36.160                                        Administrative Fine

A.           If the City Manager finds, after notice and hearing, that a person required to have a tobacco retailers license is selling or offering tobacco products for sale without a license, that person shall be subject to an administrative fine, not exceeding one hundred dollars ($100) for a first violation, not exceeding two hundred ($200) for a second violation within one year, and not exceeding five hundred dollars ($500) for the third and subsequent violation within one year.

B.           Each day that tobacco products are offered for sale without a license by a tobacco retailer required to have a license, shall constitute a separate violation.  A finding of “offering for sale” shall be made if tobacco products are actually sold or displayed in the retail establishment.

C.           Notice of the City Manager’s intention to impose a fine shall be served on the tobacco retailer or the person who is the owner of the establishment, in person or by certified mail.  The notice shall contain an advisement of the right to request a hearing before the City Manager to contest the imposition of the fine and the last day to request a hearing, which shall not be more than ten (10) days from the date that the notice was personally served or mailed.  Such hearing must be requested within ten (10) days of the date of the notice of the fine.

D.           Any fine imposed by the City Manager may be appealed to the City Council within ten (10) days of the decision of the City Manager.  The appeal shall be in writing and shall be accompanied by the appeal fee, as specified in the City’s Master Fee Schedule

8.36.170                             Disclaimer

By prohibiting the advertising or promotion of tobacco products in outdoor or publicly visible locations, prohibiting the distribution of tobacco-related promotional items and self-service displays of tobacco products, the City of Brentwood is only protecting the general welfare.  It is not assuming nor is it imposing on its officers and employees, an obligation for which it may be liable in money damages to any person who claims that such breach proximately caused injury.

DIVISION II.                    SEVERABILITY CLAUSE

      If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance.  The council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.

DIVISION III.                  EFFECTIVE DATE

      This ordinance shall take effect thirty (30) days after passage and shall within fifteen (15) days after passing, be posted in accordance with section 36933 of the Government Code of the State of California with the names of those City Councilmembers voting for or against it.

       The foregoing ordinance was introduced at a regular meeting of the City Council of the City of Brentwood, held on the ______ day of               2000.

        Adopted and ordered posted at a meeting of the City Council of the City of Brentwood held on the ___day of ________ 2000 by the following vote:

AYES:

NOES:

ABSENT:      

City Administration
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