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CITY COUNCIL AGENDA ITEM NO. 10
June 27, 2000
Reading of Ordinance 636 amending
Brentwood Municipal Code Title 8 to add a new Chapter 8.36 Relating to
Restrictions on Tobacco Advertising Promotion.
Jon Elam, City
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.
ordinance was introduced and had first reading at the City Council meeting
of June 13, 2000.
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.
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.
Code Section 48901(b).
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.
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.
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:
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
Regulation of Tobacco Promotions and Sponsorship of Events
Prohibits the marketing, distribution or sale of tobacco promotional gear to minors.
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.
Licensure of Tobacco Retailers
Requires retailers to get a tobacco retailers license
the license for repeated violations
licensed retailers to inspections
an appeal process
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 OF THE CITY OF BRENTWOOD AMENDING SECTION 8 (HEALTH AND SAFETY)
BY ADDING A NEW CHAPTER 8.36 RELATING TO RESTRICTIONS ON TOBACCO ADVERTISING
CITY COUNCIL OF THE CITY OF BRENTWOOD DOES HEREBY ORDAIN AS FOLLOWS:
TITLE 8, CHAPTER 8.36 IS HEREBY ADDED TO READ AS FOLLOWS:
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
“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
“City Manager” means the City Manager for the City of Brentwood
or his or her designee.
“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
“Person” means any individual, firm, partnership, cooperative association,
private corporation, personal representative, receiver, trustee, assignee
or other legal entity.
“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
“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
“Tobacco Product” shall mean any substance containing tobacco.
“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.
Restriction on advertising tobacco products
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.)
restrictions contained in section 8.36.020 shall not apply to advertising
or promotions for tobacco products:
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.
On vehicles, other than mobile billboards.
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
On tobacco product packaging.
of promotional items to minors
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.
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.
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.
as otherwise provided, this chapter shall be administered by the City
Manager who may develop guidelines to ensure implementation of this chapter.
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.
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.
Each separate display of tobacco advertising or promotion prohibited
by this chapter shall be considered a separate violation.
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.
Intent as to additional legal restrictions and remedies
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.
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
This license shall be renewed annually.
Retailer license application procedure
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.
The name, address and telephone number of the business owner and
The business name, address and telephone number of each establishment
where tobacco is to be sold.
Such other information as the City Clerk determines is necessary.
Issuance and display of license
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441