HomeMy WebLinkAboutMINUTES - 11181986 - X.3 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on November 18 , 1986 , by the following vote:
AYES: Supervisors Fanden, Schroder, Torlakson, McPeak
NOES: None
ABSENT: Supervisor Powers
ABSTAIN: None
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SUBJECT: Regulating Distribution of Tobacco Products
In response to request of the Board on October 7 , 1986 the
Board received the attached report dated November 17, 1986 from
Victor J. Westman, County Counsel, relating to regulation of the
sale or distribution of tobacco products to minors and the distribu-
tion of free tobacco products on public property.
Mr. Westman stated that current State law prohibits the
sale or distribution of tobacco products to anyone under the age of
18. He noted that there are no general laws concerning the free
distribution of tobacco products to adults on public property and
expressed the belief that a local ordinance dealing with that subject
would be valid.
Board members being in agreement, IT IS ORDERED that the
Board hereby DECLARES its intent to adopt an ordinance regulating
the free distribution of cigarettes/tobacco products on public prop-
erty in the unincorporated area of the County.
IT IS FURTHER ORDERED that County Counsel is DIRECTED to
draft the ordinance for the Board' s approval.
cc: County Counsel
County Administrator
1 hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Supervisors on the date shown. .
ATTESTED: -n�22 ti.f Islfn
PHIL BATCHELOn, Clank of the Board
of Supervisors and County Administrator
By , Deputy
1
COUNTY COUNSELS OFFICE
CONTRA COSTA COUNTY RECEIVED
Date: November 17 , 1986 MARTINEZ, CALIFORNIA
NOV 1 7 1986
TO- Board of Supervisors rH!L BAuHEEOR
ERK BOARD OF SUPERVISORS
TRA V .CO.
From: Victor J. Westman, County Counsel
By: Andrea W. Cassidy, Deputy County Counsel a44AM#/
Re: State Law regulating sale or distribution of tobacco
products to minors
SUMMARY: In response to your request of October 7, 1986 ,
we advise that current state law already prohibits the sale or
distribution of any tobacco or smoking paraphernalia to anyone
under the age of 18 . It would appear that the County can enact
a local ordinance banning the free distribution of cigarettes
to adults on public property in the unincorporated area.
BACKGROUND: On August 18, 1986 , the Board of Supervisors
adopted a list of recommendations aimed at improving wellness
and reducing the cost of medical care. One recommendation
included the support of local ordinances to prohibit both the
( 1 ) sale or distribution of. tobacco .products to minors and ( 2)
the distribution of free cigarettes on public property.
DISCUSSION•
1. Minors. Penal Code § 308(a) (copy attached) makes
it a misdemeanor for any person, firm or corporation to furnish
tobacco or paraphernalia for the ingestion or smoking of
tobacco to anyone under 18 years of age. The statute
(subsection (b) ) further provides that every person, firm or
corporation which deals in tobacco shall conspicuously post a
copy of § 308. A fine of ten dollars shall apply to a
conviction for the first offense for failing to post the law
and each succeeding conviction shall carry a fine of fifty
dollars.
The statute ( subsection c) specifically authorizes local
jurisdictions to adopt ordinances regulating the sale or
display of tobacco and tobacco paraphernalia to persons under
18 years of age. It should be noted tht the Federal Cigarette
Labeling and Advertising Act ( 15 U.S.C. § 1331 et seq. ) has
probably preempted and removed any local authority to regulate
cigarette advertising (displays, etc. ) .
Therefore, the County can vigorously enforce existing
Penal Code § 308 to prevent the sale or furnishing of tobacco
or tobacco paraphernalia to persons under 18 years of age.
2. Distribution. Regarding the free distribution of
cigarettes, Penal Code § 308(b) makes it a misdemeanor to
November 17, 1986
deliver any unsolicited tobacco products to a residence. The
statute further states that such distribution of unsolicited
tobacco products to residences is 'a nuisance under Civil Code
§ 3479.
Despite the fact that there is no statutory reference to
the distribution of tobacco products on public property, it
would appear that such distribution may also be found to be a
nuisance within Civil Code § 3479. The section states in
pertinent part:
"Anything which is injurious to health, . . . or
offensive to the senses, or an obstruction to use of
property, so as to interfere with the comfortable
enjoyment of life or property . . . is a nuisance. "
In Amusing Sandwich, Inc. v. City of Palm Springs ( 1985)
165 Cal.App. 3d 1116 , 211 Cal.Rptr. 911, the city adopted an
ordinance prohibiting the installation of more than four video
games in any downtown business establishment. In upholding the
city' s actions, the court addressed the issue of nuisance and
stated:
"By ordinance the city legislative body may
declare what constitutes a nuisance. (Gov. Code
§38771. ) . . . . [Elven though something may
not be a nuisance per se, it is still within
the police power to declare it a nuisance for
regulatory purposes. (Fallen Leaf Protection
Assn. v. State of California ( 1975) 46 Cal.App.
3d 816, 825 ( 120 Cal.Rptr. 538] "
Thus it appears that the County could adopt an ordinance
declaring the free distribution of cigarettes to adults on
public streets in the unincorporated area to be a nuisance or a
crime. The County could then seek an injunction to end the
nuisance ( should it occur) and/or seek criminal prosecution.
Article XI § 7 of the California Constitution provides
that a county may make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not in
conflict with general laws.
An ordinance banning the free distribution of cigarettes
on public streets to people over 18 years of age could be
deemed to be a valid exercise of police power. The ordinance
could be based upon the health protection of the public as well
as traffic control on the County' s streets.
The County' s police powers are broad and "will ordinarily
be upheld if it is reasonably related to promoting the public
health, safety, comfort, and welfare, and if the means adopted
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+ November 17 , 1986
to accomplish that promotion are reasonably appropriate to the
purpose. [Citations. )" (Sunset Amusement Co. v. Board of
Police Commissioners ( 1972) 7 Cal. 3d 64, 72, 101 Cal.Rptr.
768. )
There are no general laws concerning the free distribution
of cigarettes to adults on public property. Therefore, a local
prohibition would not be in conflict with general law. Thus it
appears that a properly drafted local ordinance could be found
to be within the police powers of the County and, therefore,
valid.
AC:pr
Attachment
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§303 DEERING'S PENAL 92 93
purchase or sale of such beverages, or to pay The Secretary of State is hereby autho- keeper, rr
any person a percentage or commission on rized to have printed sufficient copies of this ing the ce
the sale of such beverages for procuring or act to enable him to furnish dealers in or any h
encouraging such purchase or sale. Violation tobacco with copies thereof upon their re- purpose <
of this section shall be a misdemeanor. [1935 quest for the same. keep any
ch 504 § 1.1 Cal Jur 3d Alcoholic Beverages (c) Nothing in this section or any other parent or
§§ 10, 51; Cal Jur 3d (Rev) Criminal Law provision of law shall invalidate an ordi- shall adm
§§2051, 2052; Witkin Crimes p 614; Sum- nance of, or be construed to prohibit the or conni
mary (8th ed)p 937. adoption of an ordinance by, a city or thereof, ii
§ 303a. [Begging or soliciting customer county or a city and county regulating the shall be
to purchase alcoholic beverage.] It shall be sale or display to persons under the age of 85 § 1.1 i
unlawful, in any place of business where 18 years of items described in this section. Jur 3d (
alcoholic beverages are sold to be consumed [Amended Stats 1983 ch 1092 § 265, effec- Crimes p,
upon the premises, for any person to loiter tive September 27, 1983, operative January §310.
in or about said premises for the purpose loiter
1, 1984.] Cal Jur 3d Family Law § 178; Cal fights ani
begging u soliciting any patron or customer Jur 3d (Rev) Criminal Law §§2055, 2056; nor unde
of, or visitor in, such premises to purchase Witkin Crimes p 537. attends
any alcoholic beverage for the one begging §308a. [Supplying tobacco to inmates of where at
or soliciting. Violation of this section shall institution under jurisdiction of Director of tised to t
be a misdemeanor. [1953 ch 1591 § 1.13 Cal Corrections or Youth Authority.] Notwith-
Jur 3d Alcoholic Beverages § 10. standing any provision of Section 308, the
§§304, 305. [Repealed by Stats 1984 ch Director of Corrections or the Youth Au-
thority may sell or supply tobacco and to-
bacco products, including cigarettes and cig- §311.
§307. [Selling confectionery with excess arette papers, to any person confined in any §311.2.
alcohol content to person under 21 as misde- institution or facility under his or its juris-
Ever §311.3.
meanor] y person, firm, or corporation diction who has attained the age y e of 16 ears,
which sells or gives or in any way furnishes if the parent or guardian of the person
to another person, who is in fact under the consents thereto, and may permit smoking §311.4.
age of 21 years, any candy, cake, cookie, or by any such person in any such institution
chewing gum which contains alcohol in ex- or facility. No officer or employee of the §311.5.
cess of �/z of 1 percent by weight, is guilty of Youth Authority or the Department of Cor- §311.6.
I a misdemeanor. Amended Stats 1985 ch 934 rections shall be considered to have violated §311.7.
§4. Cal Jur 3d (Rev) Criminal Law §2053. said Section 308 of this code by any act §311.8.
authorized by this section. [1949 ch 487 § 1.] §311.9.
§." [Selling or furnishing tobacco, to-
bacco products, or paraphernalia for smo308¢ [Distribution of unsolicited to- §311.10
§�...
k-
ing to minor,] (a) Every person, firm or bacco products to residences.] (a) Except as §312.
corporation whicY knowingly sells or gives provided in subdivision (b), every person §312.1.
or in any way furnishes to another person who knowingly delivers or causes to be
who is under the age of 18 years any to- delivered to any residence in this state any
bacco, cigarette, or cigarette papers, or any tobacco products unsolicited by any person §312.3.
other preparation of tobacco, or any other residing therein is guilty of a misdemeanor.
instrument or paraphernalia that is designed (b) It is a defense to a violation of this ' §312.5.
for the smoking or ingestion of tobacco, section that the recipient of the tobacco
products prepared from tobacco, or any products is personally known to the defen- Cal Jur
controlled substance, is guilty of a misde- dant at the time of the delivery.
meanor. (c) The distribution of unsolicited tobacco
ybb Every person, firm or corporation products to residences in violation of this i §311
II which sells, or deals in tobacco or any section is a nuisance within the meaning of chapter
preparation thereof, shall post conspicuously Section 3479 of the Civil Code. (a) .y
and keep so posted in his or their place of (d) Nothing in this section shall he con- as a wh
business a copy of, this act, and any such strued to impose any liability on any em- to the
person failing to do so shall upon conviction ployee of the United States Postal Service rary stz
be punished by a fine of ten dollars ($10) for for actions performed in the scope of his shamef
the first offense and fifty dollars ($50) for employment by the United States Postal or excr
each succeeding violation of this provision, Service. [1971 ch 1005 § 1.1 whole
or by imprisonment for not more than 30 §309. [Admitting or keeping minor in limits c
days• house of prostitution.] Any proprietor, tion 01
t
i