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HomeMy WebLinkAboutMINUTES - 10271998 - D9 TO: BEARD OF SUPERVISORS FROM: William Walker, M.D., Health Services Director Contra by Wendel Brunner, M.D.,Public Health Director Costa DATE: October 22, 1998 County SUBJECT: TOBACCO FREE YOUTH ORDINANCE SPECIFIC REQUEST($)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: 1. Introduce the attached ordinance drafted by County Counsel restricting tobacco advertising in areas where youth frequent, and tobacco promotion to youth, waive reading, and set December 8, 1998 for adoption of ordinance and supporting findings. 2. Direct the Health Services Department to prepare detailed alternative proposals for licensing or registering tobacco retailers and report to the Family&Human Services Committee on the possible alternative approaches. BACKGROUND: In April 1997 the Tobacco Prevention Coalition responded to the Board of Supervisors bequest to make Tobacco Free Youth a public policy priority. On July 15, 1997 the Internal Operations Committee directed the Health Services Department to prepare a comprehensive draft model ordinance for consideration.', Working with the Tobacco Prevention Coalition,the Health Services Department presented a comprehensive compendium of provisions restricting youth access to tobacco to the Internal Operations Committee on December 16, 1997. On February 1.0, 1998 the model ordinance was presented to the full Board. The Board then directed the Health Services Department, working with County Counsel, to report on various options the Board could pursue, with an analysis of the legal risks associated with different options. On May 19, 1998 the Health Services Department presented the Board of Supervisors with five policy recommendations: I. Ban on all outdoor tobacco advertising within 1,600 feet of schools and playgrounds. 2. Ban tobacco advertising in the windows of retail establishments within 1,600 feet of schools and playgrounds. 3. Ban the sale and distribution to minors of promotional items identified with tobacco brands. 4. Ban self-service tobacco displays inside retail stores. 5. Require a license or permit to sell tobacco products retail. CONTINUED ON ATTACHMENT: YES X SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNA E S ACTION OF BOARD ON OCTOBER 27, 1998 APPROVED AS RECOMMENDED X OTHER X SES ADDENDUM FOR BOARD ACTION VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS (ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES: II 'III IV I NOES: V AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: D= OF SUPERVISORS ON THE DATE SHOWN, Contact Person: CC: Health Services Administration ATTESTED t7.= 27, 1 PHIL ATCHELOR,CLERK OF THE BOARD OF SUPERVIS SAND COUNTYADMINISTRATOR BY DEPUTY 2 On September 15, 1998 the Health Department returned to the Board of Supervisors with detailed language embodying the above principles, including several options for a licensing provision for tobacco retailers. On both May 19 and September 15 there was extensive testimony from members of the community including over 40 high school youth. The youth in particular testified about the tobacco advertising and promotion directed at underage youth and the ease with which minors can obtain tobacco and tobacco products. The youth brought many photographs of tobacco advertising in the community specifically directed at youth,and photographs',of self-service tobacco displays associated with candy, ice cream, and toys which were attractive to youth and children. The Board of Supervisors indicated both on May 18 and on September 15 their general support for provisions 1 through 4,but there was no clear consensus about the appropriate approach for the licensing issue. As a result of those discussions, we are presenting specific language for adoption worked out with County Counsel that embodies the Recommendations 1 through 4 above. We are suggesting that the Health Services Department bring the licensing provisions to the Family &Human Services Committee for further discussion and direction to staff. CONSEQUENCE CE O NEGATIVE ACTS: Minors and children would have greater exposure to tobacco advertising and promotion,much of which is specifically directed at youth. Minors and youth would have greater access to tobacco products through retailers and self-service displays. FISCAL IMPACT: There are no financial implications for the County General Fund anticipated. WW:WB:ah Attachment ADDENDUM D.9 OCTOBER 2'7, 2998 On this date,the Board of Supervisors considered an ordinance drafted by County Counsel restricting tobacco advertising in areas where youth frequent, and tobacco promotion to youth. Public testimony was received from the following persons. Peter Muller, 7 Bel Air Drive, Orinda; Lisa Bautista Rivera, Tobacco Industry Gets Hammered By Teens (TIGHT), Pittsburg; Jon Higgins, 4287 Brentwood Circle, Concord; Ashley Brandle, 5017 Fray Ave, Richmond; Joe Escher, R.J. Reynolds Tobacco, 3 Embarcadero Center, San Francisco; David Gutierrez, TIGHT, 27 Seaview Drive, Bay Point, Jesse Quinonez, 1825 Hayes Court, Concord; Nancy Andrews, Smoke Free USA, 1125 B Arnold Drive,Martinez; Danny Knopofe&Daniel May, 11116 Cape Cod Way, Concord; Ayanna Autrey, TIGHT; Monica Cervantez, TIGHT, 88 Breaker Drive, Bay Point; DeLois Basnett, American Lung Association, 105 Astrid, Pleasant Hill, Maria Saucedo, TIGHT, 2101 Mandarin Way,Antioch; Somphone Silapasay, TIGHT, 160 Corte Linda, Pittsburg; Joel White, Tobacco Prevention Coalition, American Cancer Society, 318 Ridgestone Court, Walnut Creek. After receiving testimony,the Board took the following actions: 1. ACCEPTED the report from the Health Services Director on the proposed ordinance restricting the advertisement,promotion and sale of tobacco products in the County; 2. DIREC'T'ED the Health Services Director to prepare detailed alternative proposals for licensing or registering tobacco retailers, and to report to the Family and Human Services Committee on the possible alternative approaches; 3. AMENDED section 445-2.004 (4)of the proposed ordinance, inserting the words "or exempted",the sentence to read" On billboard signs covered or exempted by voluntary agreements between Contra Costa County and billboard companies in effect on the effective date of this ordinance"; 4. INTRODUCED Ordinance 98-43, Restriction of Tobacco Advertising and Promotion,as amended; WAIVED the reading; and SET November 3 1998 for adoption. FRECEIVED COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA CLERK BOARD OF SUPERVISORS DONl'I�A C 57'A O, Date: October 23, 1998 Item D.9 To: Board of Supervisors From: j Victor J. Westman, County Counsel By: Diana J. Silver, Deputy County Cour Re: Draft Ordinance Restricting Tobacco Advertising and Promotion: Board Agenda, October 27, 1998, Item D.9 Pursuant to a request received October 22, 1998,this office has revised the draft ordinance restricting tobacco advertising in publicly visible locations within 1600 feet of specified areas (schools,playgrounds, etc.),prohibiting distribution of tobacco-related promotional items to minors, and banning self-service displays of tobacco products. As requested, it does not contain a tobacco retailers licensing provision. Our views with respect to the restrictions on tobacco advertising remain the same as those expressed in the attached memos dated February 5, 1998 (see pages 3-6) and May 13, 1998, (paragraphs #1 and#3). DJSIds cc: Wendel Brunner, M.D., Public Health Services Charlotte Dickson, Tobacco Prevention Project H AD$1L V\MEMMtcsbadv.wpd ORDINANCE NO. 98- (RESTRICTION OF TOBACCO ADVERTISING AND PROMOTION) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): [Gov. C. § 25120] SECTION I. SUMMARY. This ordinance restricts the advertising and promotion of tobacco products and distribution of tobacco-related promotional products to minors. [§25129.] SECTION II. Division 445 is added to the County Ordinance Code, to read: Division 445 RESTRICTION ON TOBACCO ADVERTISING AND PROMOTION Chapters: 445- 2 Restrictions on Tobacco Advertising 445-4 Distribution of Promotional Items to Minors 445-6 Self-service Displays 445-8 Administration&Enforcement Chapter 445-2 Restrictions on Tobacco Advertising 445-2.002 Definitions. The following words and phrases,whenever used in this division, shall be construed as hereafter set out,unless it is apparent that they have a different meaning: (1) "Advertising display sign"means a sign, signboard,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 windows or doors of a commercial establishment, and that is used to advertise or promote products. (2) "County Administrator"means the Contra Costa County Administrator or his or her designee. ORDINANCE NO. 98- I (3)"Mobile Billboard7 means any sign,placard, billboard, or other display advertisement upon or affixed to a vehicle which is used primarily 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 miners or which carry a specific brand name, logo, indicia of a product illegal to sell to minors. For the purposes of this division, mobile billboard shall not include any advertisement on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products. (4) "Person"means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or other legal entity. (5) "Promote" or"promotion"means a display of any logo,brand name, character, graphics, colors, scenes, 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. (6) "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. (7) "Tobacco product" shall mean any substance containing tobacco leaf, including but not limited to cigarettes, cigars,pipes,tobacco, snuff, chewing tobacco and dipping tobacco. (8) "Tobacco retailer"shall mean any person who sells,offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia; "tobacco retailing" shall mean the doing of any of these things. (Ord. 98- , § 2.) 445-2.004 Restriction on Advertising of 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 the 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). (Ord. 98-_, § 2.) 445-2.006. Exceptions. This section shall not apply to advertising or promotions for tobacco products: (1) Located inside a commercial establishment, unless such advertising ORDINANCE NO. 98- 2 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 a street, sidewalk or other public thoroughfare; (2) On vehicles, other than mobile billboards; (3) 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; (4)On billboard signs covered by voluntary agreements between Contra Costa County and billboard companies in effect on the effective date of this ordinance; (5) On tobacco product packaging. (Ord. 98-____, § 2.) Chapter 445-4 Distribution of Promotional Items to Minors 445-4.002 Sate and Distribution of Tobacco-related Promotional Items. No manufacturer, distributor, or retailer of tobacco products may market, license,distribute, sell, or cause to be marketed, licensed, distributed or sold any item(other than tobacco products) 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 colors, or any other indicia or product identification identical with, or similar to,or identifiable with, those used for any brand of tobacco product. (Ord. 98-_____, § 2.) Chapter 445-6 Self-Service Displays 445-6.002 Prohibition. It shall be unlawful for any person or tobacco retailer within the unincorporated areas of the County 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. (Ord. 98-_, § 2.) 445-6.004 Vendor Assistance. All tobacco products shall be offered for sale exclusively by means of vendor/employee assistance, with tobacco products in a locked case requiring employee assistance to retrieve the tobacco products. (Ord. 98- , § 2.) ORDINANCE NO. 98- 3 Chapter 445-8 Administration and Implementation 445-8.002 General. Except as otherwise provided,this division shall be administered by the County Administrator. The County Administrator may develop guidelines, as appropriate,to ensure implementation of this division. (Ord. 98--, §2.) 445-8.004 Violations. (a) The County Administrator will review and, if determined appropriate, act upon any written complaint submitted by any private citizen or County officer or employee concerning any advertising or promotion prohibited by this division in a timely manner. The County Administrator may serve written notice requiring correction of any violation of this section upon the person responsible for the advertising display sign or promotion or self-service display prohibited by this division. Any notice issued shall specify a date by which the violation shall be corrected. (b) Failure to correct specified violations after written notice has been served may result in enforcement by any remedy allowed by this code(See chapters 14-6 and 14-8). If three notices requiring the correction of any violation of this ordinance (whether the violation involves the same or different displays or promotions) are 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 additional violation occurs within ninety days of the serving of the third notice. (c) Each separate display of tobacco advertising or promotion prohibited by this ordinance 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. (Ord. 98-_____, § 2.) 445-8.006 Intent as to Additional Legal Restrictions and Remedies. Nothing in this division is intended to alter the obligations or restrictions that apply to any person under any other law governing signs, billboards,tobacco advertising or any other matter covered by this division. The remedies set forth in this division are not exclusive. If any action prohibited by this division is also unlawful under any other law,the penalties and remedies under such other laws may be pursued in addition to those provided in this division. (Ord. 98-_, § 2.) 445-8.008 Disclaimers. 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 County of Contra Costa is only promoting the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who ORDINANCE NO. 98- 4 claims that such breach proximately caused injury. (Ord. 98-_, § 2.) SECTION 111. EFFECTIVE DATE. This ordinance shall become operative six months after the date it is finally adopted. Within 15 days after passage,this ordinance shall be published once with the names of supervisors voting for and against it in the , a newspaper published in this County. [§§ 25123 & 25124.1 PASSED on ,by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: PHIL BATCHELOR, Clerk of the Board and County Administrator By: Deputy Board Chair DJSJjh H:iGROUMSTAMTOBORD WPD ORDINANCE NO. 98- 5 COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: May 13, 1998 To: William B. Walker, M.D., Director Health Services Dept. Attn: Wendel Brunner, M.D., Public Health Director From: Victor J. Westman, County Counsel By: Diana J. Silver, Deputy County Counsel Re: Proposed provisions in tobacco ordinance This is in response to your memo to this office of May 12, 1998 regarding your proposed recommendations to the Board of Supervisors concerning tobacco advertising restrictions and regulation of tobacco retailers. We understand you will not be asking this office to review the actual recommendations and staff report(Board Order) before it is presented to the Board of Supervisors due to time constraints. As we don't have the specific Board Order to review, our comments are necessarily general, in response to the general concepts you list in your memo. Our comments could be different after a review of specific proposed provisions. We address the four items in the order listed in your May 12, 1998 memo: 1. Ban on all outdoor tobacco advertising within 1640 feet of schools,playgrounds and libraries. As we discussed in our meeting April 20,1998, this proposed ban includes advertising that is located inside commercial stores but is visible from the outside. As we commented in our memo of February 5, 1998 to the Board of Supervisors (see copy attached), we have concerns that such a regulation may be deemed"content-based" and vulnerable to challenge as discussed on pages five and six of our February 5, 1998 memo. We are aware that San Francisco has adopted a similar restriction but that ordinance will not become effective until July 16, 1998. The San Francisco ordinance does not impose a ban on advertising within a specific distance from schools, etc. because of the proximity of schools to stores and other reasons related to the compactness of the city. Again,we urge you to determine what the actual effect of imposing a specified-distance ban would be on outdoor advertising (including inside-store advertising visible to the outside)because, as we stated in our February 5, 1998, memo, you need to determine whether such a restriction will result in an outright ban on tobacco advertising (see February 5, 1998,memo,p.5). As we said in our February 5, 1998, memo, it does not appear from the information furnished that black and white or"tombstone"advertising would save the restriction on advertising inside commercial establishments from a successful challenge on First Wendel Brunner, M.D. page 2 Tobacco Ordinance proposals May 13, 1998 Amendment grounds (see February 5, 1998,memo, footnote 6).' We note two other matters with respect to this proposal: mobile billboards and motor vehicles are included in the ban,and there is no exclusion for billboards. As the ordinance will be effective only in the unincorporated area, it would be difficult to enforce the tobacco advertising ban on moving vehicles or mobile billboards, particularly when located on public highways. We note that both San Francisco and Compton ordinances except vehicles from the ban. Secondly, it has not been clear that the Board of Supervisors wants billboards included in any proposed tobacco advertising restrictions in view of the billboard agreements with the outdoor advertising companies.' 2. Ban on self-service displays inside retail stores. We understand that a number of jurisdictions in.California have enacted similar bans. When we receive your specific proposal in the form of a draft ordinance, we would like you also to furnish us with ordinances in other local jurisdictions, e.g., San Francisco, with their history, including litigation, if any, so that we may compare provisions in your draft ordinance with other ordinances. 3. Ban tobacco advertising in the windows of retail establishments within 1600 feet of schools. See discussion in#1 above. We are not aware of any such "point of purchase"advertising restriction in California or anywhere in the United States (other than a federal district court ruling in Washington state) that has yet successfully withstood legal challenge. As noted above,the San Francisco ordinance containing similar restrictions becomes effective July 16, 1998. 4. Requirement of a License for Sale of Tobacco Products. You have given us no details on this proposal. You do indicate,however,that such a license would be subject to suspension or revocation, or would not be issued at all if the retailer fails to comply with state law, including Penal Code §308,which prohibits sale of tobacco products to minors. It is difficult to comment on this general proposal without any specific draft language to review. We note,however,that such a provision may be subject to a successful preemption challenge if the suspension,revocation or refusal to issue the license for selling tobacco to minors were found by a court to constitute a duplication of state law or an imposition of additional penalties to those set forth in Penal Code §308. On the other hand, if licenses were withheld or suspended for violating express terms of the license,e.g., prohibition on self-service displays, one could argue that there was no preemption, only enforcement of the terms or conditions of the license. In drafting license provisions,you may wish to include as a i it is possible that studies supporting a finding that minors are not attracted to black and white advertising might be helpful in countering such a First Amendment challenge. Mere speculation is not enough(Edenfield v. Fane, 507 U.S. 761 (1993); see February 5, 1998 memo,p. 3). Z It is interesting to note that San Francisco exempts from the ban billboards within 660 feet of a highway . Wendel Brunner,M.D. page 3 Tobacco Ordinance proposals May 13, 1998 condition for obtaining a license,that the tobacco retailer agree not to have self-service displays of tobacco products. Other conditions could be imposed on the license which were designed to discourage minors from violating state law, including Penal Code section 308. As you know, one California court has ruled that discouraging the illegal sale of tobacco to minors is not preempted(see Brava Tending v. City of Rancho Mirage (1993) 16 Cal. App. 4t'383,412, discussed on p.10 of 2/5/98 memo). We are informed by Edith Cabuslay of the San Mateo Tobacco Prevention Program that San Mateo County has not yet adopted the licensing ordinance you attached to your memo. We note that the San Mateo draft licensing ordinance, if adopted,would not be effective untilSeptember 1, 1998. We look forward to receiving your proposed draft ordinance for our review and comments at your earliest opportunity. DJS/ds cc: Members, Board of Supervisors H:\DSILV\MEMOS\TOBPROV.WPD COUNTY COUNSELS OFFICE CONTRA COSTA COUNTY MARTINEZ,CALIFORNIA Date: February 5, 1998 To: Board of Supervisors From: Victor J. Westman, County Counsel By: Diana J. Silver, Deputy County Counsel' Re: Provisions of proposed Model Tobacco-Free Youth Ordinance Summary On January 20, 1998,the Board of Supervisors directed this office to perform an analysis of two sections of the model ordinance which are aimed at controlling demand by minors for tobacco products (II.A.3: Regulation of Tobacco Advertising) and at controlling supply;to minors of tobacco products (ILB.3: Conditional Land Use Permits for Sale of Tobacco Products by Retail Outlets) and to advise the Board of any constitutional issues raised by these provisions. We have reviewed the draft ordinance, materials submitted to this office by the Health Services Department, including comments received by that department regarding the ordinance and relevant case law, including the four-part test for First Amendment constitutionality established by the United States Supreme Court in the Central Hudson case'. In essence, our conclusions are as follows: (1) We have concerns that some of the provisions regulating tobacco,advertising(§II.A.3) may be too broad and/or vague to survive a constitutional challenge on First Amendment grounds. For this reason, it may be difficult to meet the fourth prong of the Central Hudson test, i.e., that the regulation is not more extensive than necessary to serve a substantial governmental interest. (2) We believe that if applied,a challenge may be made with respect to the proposed requirement that retailers obtain conditional use permits before they are allowed to begin selling tobacco products. It may be argued that such regulation constitutes a denial of equal protection of the laws and/or constitutes a deprivation of due process under the U.S. Constitution. (3)As for businesses that already sell tobacco products, the standards set forth in the draft ordinance are subject to challenge on the grounds of over breadth and vagueness (due process). The "Performance Standards" in the draft ordinance which, if violated, may cause a person to lose their "Deemed Approved" status do not amount to nuisance standards. A prior legal',non-conforming use generally cannot be taken away unless a nuisance exists or unless the use is extended or enlarged. Another challenge to a conditional use permit requirement could be made on the basis that one may 'Central Hudson Gas & Elec. a Public Serv. Comm'n, 447 U.S. 557 (1980). Board of Supervisors page 2 Model Tobacco-Free Ordinance February 5, 1998 lose"deemed approved"status by selling tobacco products to minors and that the County cannot impose additional penalties for violations which are fully covered under by state law, i.e.,that such a County provision would be preempted by state law(Penal Code §308)2. Our analysis follows. Section II.A.3 : Regulation of Tobacco Advertising' In 1980, the United States Supreme Court established a four part testfor assessing the constitutionality of restrictions on commercial speech: "At the outset,we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that Interest."(Central Hudson, supra,447 U.S. at;566). On the face of the proposed ordinance, it appears that the four types of advertising sought to be regulated concern lawful activity and are not misleading.' Thus,presumably this advertising is protected by the First Amendment to the U.S. Constitution(first prong of Central Hudson test). Next, we must ask whether the County can demonstrate a substantial government interest which the County seeks to achieve by regulating these four types of advertising. The apparent interest of the County, as 2This office has not been asked to inquire into non-constitutional issues.' In addition to the issue of statutory preemption with respect to conditional use permits,there are other areas of concern with respect to the proposed conditional use permit provisions: several areas of conflict with existing standards for land use permits under the Contra Costa County Ordinance Code(see C.C.C.Ord Code §26-2.2008); vagueness in standards and procedure for obtaining a conditional use permit and problems in satisfying"nuisance"standards with respect to regulating existing retailers of tobacco products. The issues involved are complex; this report is merely an overview and is intended as a timely response to the Board's direction and an attempt to address the concerns expressed by the Board at the January 20, 1998 hearing. 'The four types of advertising proposed to be regulated in the ordinance are: 1-outdoor advertising of tobacco products (prohibited within 2500 feet of"areas where minors frequent"), 2- tobacco advertising on windows and inside retail establishments (prohibited within 2500 feet of "areas where minors frequent" if can be seen from the street, exception for black and white "tombstone"advertising), 3-retail window advertising for any product(limited to 10%of window area),4-tobacco advertising on County-owned property (prohibited). Board of Supervisors page 3 Model Tobacco-Free Ordinance February 5, 1998 stated in the proposed findings and purpose of the ordinance(§H.A.I)4 is to promote compliance with state law which prohibits the sale of tobacco products to minors(Pen. Code §308, copy of statute attached for the Board's convenience) and to further the obvious public policy underlying this prohibition, which is to prevent the purchase and consumption of tobacco products by minors. This certainly appears to constitute a sufficiently substantial interest for purposes of satisfying the second prong of the Central Hudson test(see Penn Advertising of Baltimore, Inc., v. The Mayor and City Council of Baltimore, et al.,101 F. 3d 332 (4'Cir.)(1996)). Next, we must ask if the proposed regulation directly advances this substantial interest(third prong of Central Hudson test). if the answer if yes, is the regulation narrowly tailored to serve the County's asserted substantial interest or are the proposed ordinance provisions more extensive than necessary to serve the interest(fourth prong of Central Hudson test)? 1-Prohibition on outdoor tobacco advertising(e.g.,billboards, sides of buildings,free standing signboards,etc.)within 2500 feet of`areas where minors frequent."(§ILA.3.a.1.) Restrictions on outdoor advertising of tobacco products have been found directly to advance the local government's substantial interest (as defined above) (see Penn.Adv. ofBaltimore v. Mayor and City Council of Baltimore 141 F. 3d 332,333 (4t'Cir. 1996), affirming its earlier ruling, cited as 63 F.3d 1318 (4'Cir. 1995)). In apparent recognition of this, California legislation effective January 1, 1998 prohibits outdoor billboard advertising of tobacco products within 1,400 feet of schools and allows more stringent regulation by local governments (Bus. & Prof Code §§22958, 22961). Several California cities (Oakland, Long Beach, Compton, San Francisco) and Los Angeles County have enacted or are considering enacting similar prohibitions. There has been judicial recognition in the Ninth Circuit(which includes this county) that"advertising increases consumption of the product or service being advertised." (Cal-Almond, Inc. v. UnitedStates Dep't ofAgric. 14 F.3d 429,439 (9'Cir. 1993)). The County also must be able to demonstrate, however, that there is an immediate connection between advertising and demand among minors. Further, the United States Supreme Court has stated that mere speculation or conjecture by the County does not satisfy the third prong of the Central Hudson test: "a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree." (Edenfield v. Fane, 507 U.S. 761 (1993)). If it can be shown that the demand for cigarettes and other tobacco products among minors decreases as a result of decreased advertising, the County's policy of preventing acts that encourage 'lf some form of this model ordinance is ultimately adopted by the Board of Supervisors, we suggest that the Findings be set out in a separate document from the codified version of the ordinance. Board of Supervisors page 4 Model Tobacco-Free Ordinance February 5, 1998 conduct violating Penal Code section 308 (illegal sales to minors) is advanced and passes the third prong of the Central Hudson test. As presently drafted,however,these provisions may be challenged as more extensive than necessary to serve the asserted substantial governmental interest under the fourth prong of the Central Hudson test. The United States Supreme Court has explained this fourth prong of the test as follows: the means adopted to advance the substantial governmental interest must be"...a means narrowly tailored to achieve the desired objective." (Board of Trustees v. Fox 492 U.S. 469,480 (1989)). The restrictions on tobacco advertising apply to a 2500-foot radius of areas where minors frequent. Such areas are defined in the draft ordinance as "any area, facility,or location that provides special services for,or predominantly serves,people under the age of 18 years of age, including any nursery,kindergarten, elementary,middle or high school; licensed child care center;playground; recreational facility; arcade; and library."(§II.A.2. Definitions,1.) The examples provided in the definition are not exclusive, merely inclusive.' Thus,a "facility"could be a fast food restaurant,a bowling alley, a toy store,etc. What is most troubling, however,is the term itself; "areas where minors frequent"is so broad and vague as to be subject to constitutional challenge on due process grounds as well as not meeting the fourth prong of the Central Hudson test. If the Board desires to adopt this type of ordinance, it may wish to consider adoption of a Baltimore-type ordinance,which the Fourth Circuit found to have met the Central Hudson test, including the fourth prang, i.e., that the restrictions were not more extensive than necessary to serve the asserted substantial interest. The Baltimore ordinance banned outdoor advertising of tobacco products in certain zones of the city. When a specified distance,e.g., 2500 feet,is restricted,however, the provision is vulnerable to challenge on the ground that it constitutes an outright ban on the restricted activity(see C.R. of Rialto, Inc. v. City of Rialto, 964 F. Supp. 1401 (C.D. Cal. 1997), adult oriented businesses permitted in commercial and industrial zones but prohibited within 1000 feet of residential zones or certain specified uses found to constitute total ban on adult oriented businesses and therefore,unconstitutional). If the Board desires to proceed with a specified restricted area, it would be advisable to have a study done to ensure that the restriction will not result in an outright ban of an activity that is generally constitutionally protected free expression. That is, the County must be able to demonstrate 5 W note that such areas are not confined to unincorporated areas of the County; thus, the "area where minors frequent" might include areas within a city with the prohibition extending 2500 feet in any direction, including unincorporated area subject to the ordinance. Board of Supervisors lege 5 Model Tobacco-Free Ordinance February 5, 1998 that the restriction is not so broad as to constitute an outright ban on tobacco advertising. The greater the distance proscribed, the higher the risk of a constitutional challenge claiming it amounts to an outright ban on tobacco advertising. Thus,the vagueness of the term"areas where minors frequent" coupled with a 2500-foot prohibition on outdoor tobacco advertising, is probably a restriction that is more extensive than necessary to meet the County's asserted interest in preventing purchase and consumption of tobacco products by minors and does not meet the fourth prong of the Central Hudson test. Finally,we suggest that in connection with the preparation of any final version of an ordinance restricting outdoor billboard advertising consideration be given to exempting current contracts with billboard companies from the restrictions imposed by a subsequently adopted ordinance. 2-Prohibition on tobacco advertising inside a retail establishment or on windows if can be seen from the street within 2,500 feet of an area where minors frequent(f§II.A.3.a.2. and II.A.3.c and d.). The above analysis of the third prong of the Central Hudson test also applies to these proposed restrictions. It is this office's opinion,however, that this regulation would be more difficult to defend,because these provisions appear to be more"content-based"rather than merely a restriction on the time,place, and manner of the tobacco product advertising.' A content based restriction receives a much higher level of scrutiny by the courts than does a"time,place and manner"restriction. Thus,the County would have a heavier burden to justify this"Point of Purchase"advertising restriction than in the case of outdoor advertising restrictions discussed above(see Desert Outdoor Advertising, Inc., v. City ofMoreno Valley 103 F.3d 814(911 Cir. 1996): billboard restrictions imposed by California city found unconstitutional for being content based)). We are not aware of any case law which has upheld the type of restriction proposed here. It is our view that this type of restriction would be quite vulnerable to challenge,because it would be argued that the restriction dues not directly advance the County's substantial interest in preventing the purchase and consumption of tobacco products by minors (see 44 Liquormart, Inc., et al v. Rhode Island et al., U.S.__ _(1996)). In 44 Liquormart, the United States Supreme Court ruled that Rhode Island's ban on advertisement of retail liquor prices except for price tags or signs displayed with the merchandise within licensed premises and not visible from the street did not advance directly the state's interest in temperance(third prong) and was more extensive than necessary(fourth prong)). In view of this case slt is our opinion that the exception for black and white advertising, so-called"tombstone advertising,"will not save this regulation from probably being successfully challenged as unconstitutional under the First Amendment to the U.S. Constitution as an impermissible content based restriction on commercial free speech. Board of Supervisors page 6 Model Tobacco-Free Ordinance February',5, 1998 and a likely successful challenge that this type of regulation would be preempted under the Federal Cigarette Labeling and Advertising Act(FCLAA)(15 U.S.C. §§1331-1340),because it would be considered to be a"prohibition based on smoking and health...imposed under state law with respect to the advertising or promotion of any cigarettes" (15 U.S.C. §1334(b))we have serious concerns about the constitutionality of this proposed regulation. In addition,we have a number of concerns with the scope of the regulation. As discussed above, it may be difficult to satisfy the fourth prong of the Central Hudson test,',i.e.,that the ordinance provisions are narrowly tailored to serve the County's asserted substantial interest when the ban is of such a wide area(2504 feet) and when the ban extends to any area `frequented"by minors. This is a vague term and subject to challenge as much more extensive than necessary and,thus,not in compliance with the fourth prong of the Central Hudson test. 3-Limitations on retail window advertising for any product (II.A.3a.2.c)). This provision prohibits signs posted in a window of a retail, commercial or industrial establishment from obscuring more than ten percent of the total transparent area of the window. This provision expressly"applies to all advertising, not just advertising,far tobacco products."' We have found no support for such a provision in this ordinance which purports to discourage illegal sale of tobacco products to minors. It is difficult to discern how this provision would directly advance the County's substantial interest in preventing the sale of tobacco products to minors. Thus, it is unnecessary to reach the fourth prong of the Central Hudson test(whether it is more extensive than necessary to serve that interest). This provision appears to be unrelated to the ordinance under consideration. 4-Prohibition of Tobacco Advertising on County owned property(§II.A.3.b.) The County, in its proprietary capacity, can control advertising on property in which it has sufficient proprietary interests. The County,however, cannot impair existing contracts with lessees or lessors or other persons or entities with whom the County has entered into contractual relationships. Where current contracts exist, they would have to be amended to reflect such a restriction. If an owner of property leased to the County has retained proprietary rights sufficient to permit such advertising, the County would not be able to interfere with such rights. But to the extent the County has sufficient proprietary rights in the subject property, the Board can adopt an order, resolution, or ordinance prohibiting such advertising or the same result could be accomplished through issuance of an administrative bulletin by the County Administrator. 'The exception in commercial and industrially zoned areas where the advertisements `pare not within 2500 feet of areas where minors frequent or visible in aforementioned;places"dues nothing to advance the County's asserted interest.( see §11A.3.a.3.). Board of Supervisors page 7 Model Tobacco-Free Ordinance February 5, 1998 As for property which is"operated"by the County, it is unclear if this refers to real or personal property. Without clarification of this term it is not clear how this provision as currently drafted could meet the fourth prong of the Central Hudson test because, by its ambiguity, it is more extensive than necessary to serve the County's asserted substantial interest in preventing tobacco product sales to minors.. This provision could be rewritten, however, to be narrowly tailored as constitutionally mandated. It is possible that as revised, it could be added to the current tobacco ordinance(see C.C.C. Ord. Code Division 440, Tobacco Products). Section II.B.3: Conditional Use Permits for Sale of Tobacco Products We are not aware of any city or county ordinances in California which regulate the sale of tobacco products through a conditional(land)use permit(LUP)process. Under the California Constitution, the County may"make and enforce within its limits all local,police,sanitary, and other ordinances and regulations not in conflict with general laws."(Cal.Const. Art XI, §7). The County may establish zoning and other related land use regulations under its police power granted under the California Constitution as long as there is some rational basis to support such regulation(Miller v. Board of Public Works (1925) 195 Cal. 477, 490;Associated Home Builders, etc., Inc. v. City of Livermore(1976) 18 Cal. 3d 582, 609). The power and authority of counties to grant LUPs, if reasonable, is a valid exercise of the police power(Cal. Const. Art. Xi,§7; Topanga Assn.for a Scenic Community v. County of Los Angeles (1974) 11 C.3d 506, 511). In addition, there is specific statutory authority for counties to hear and decide applications for LUPs (and other permits) when the zoning ordinance so provides and establishes criteria for determining such matters (Gov. Code §65901). This County has provided such procedures by zoning ordinances (see C.C.C. Ord. Code §26-2.1204 (2): zoning administrator hears and initially decides requests for LUPs; C.C.C. Ord. Code Art. 26-2.20: procedures and standards for LUPs; C.C.C. Ord. Code §26-2.2008: standards and required findings for issuance of LUPs). A general welfare standard is typical, and generally, sufficient(see C.C.C. Ord. Code §26-2.2008(1); Hawkins v. County of Marin(1976) 54 Cal. App. 3d 586). Most zoning ordinances, including this County's, declare violations of the ordinance to be public nuisances subject to abatement proceedings (C.C.C. Ord. Code §14-6.204; see generally, Longtin, California Land Use, 2d Ed. (1987) §10.61(6), p.940). Several recent nuisance abatement ordinances containing an LUP requirement for retailers of alcoholic beverages (to be consumed off-site) have been upheld as administrative mechanisms for controlling and abating nuisances (Suzuki v. City of Los Angeles (1996)44 Cal. App. 41'263; City of Oakland v. Superior Court(1996) 45 Cal. App. 4" 740). Unlike zoning ordinances, a nuisance abatement ordinance may be applied retroactively; however, the County's police power to proscribe nuisances is more limited than its zoning power. An"undoubted menace to public health, safety or morals"must be shown to establish a nuisance (Suzuki v. City of Los Angeles (1996) 44 Cal. App. 4' 263, 275-276). Board of Supervisors lege 8 Model Tobacco-Free Ordinance February 5, 1998 The LUP provisions of the draft model tobacco ordinance appear to be derived in large part from the"Deemed Approved Performance Standards" set forth in Oakland ordinance aimed at addressing public nuisance problems associated with certain liquor stores in certain areas of the city (see City of Oakland v. Superior Court,supra at 747). The existing business activity(in Oakland, liquor stores;here,tobacco retailers)is deemed to be an approved commercial activity as long as the merchant conforms to certain standards and posts a notice containing the"performance standards." If there is a complaint the standards have been violated, an administrative hearing must be conducted. Hearing and appeal procedures and enforcement methods are not specified in the draft ordinance now being considered by this Board. New businesses which are established after the effective date of the ordinance and existing businesses which"substantially change its mode or character of operation''are required to obtain an LUP.1 Although the County has wide discretion under its police power to regulate new businesses by zoning ordinances and may apply the general welfare standard in determining whether to grant an LUP for certain types of businesses as specified in its zoning ordinance, there must be a rational basis for distinguishing between retailers of one type of consumer product from retailers of other types of consumer products. Lack of a rational basis raises the risk of attack as a denial of equal protection of the laws under the U.S. Constitution(see Elysium Inst., Inc. v. County of Los Angeles (1991)232 Cal. App. 3d 408,426,427). In the draft model ordinance now being considered by the Board, four factors are to be considered in making the determination whether to grant the LUP.' The factors are general and somewhat vague. As stated in the discussion of the proposed regulation of outdoor advertising,we have concerns that the term"areas where minors frequent" (§ II.B.3d.1) may be subjected to a constitutional challenge on due process grounds as being too vague and overly broad. For example, one of the factors to be considered is whether the sale of tobacco products is"appropriate...given the percentage of patrons likely to be minors or the nature of other products to be carried." This"factor" is extremely vague and therefore, is vulnerable to a constitutional challenge on due process and equal protection grounds. That is, a tobacco retailer would argue that there is no way of knowing where minors are likely to frequent, or whether the sale of tobacco products is"appropriate"and therefore, that this factor is too vague to be applied with any precision and will result in arbitrary denials of use permits (due process claim.). Secondly,the tobacco retailer would argue there is no rational basis for "This conflicts with existing County Code provisions governing prior legal nonconforming uses (see C.C.C. Ord Code §82-8.006; LUP required only if existing legal nonconfoming use is extended or enlarged). The quoted language in the draft ordinance appears to have been taken from Business and Professions Code §23790(alcoholic beverage licenses) and is inapplicable here. 9The County officer, e.g., zoning administrator, to conduct the hearing isnot identified; nor is there any reference to existing County Code procedures for LUP hearings, factors to be considered in granting an LUP and appeal provisions(see C.C. C.Ord Code Chapter 26-2). Board of Supervisors page 9 Model Tobacco-Free Ordinance February 5, 1998 forcing him or her to go through an expensive time-consuming LUP process when other retailers of consumer products are not required to do so (equal protection claim). These constitutional challenges may not be successful as applied to new tobacco retailers, given the wide discretion the county has under its police power. As discussed above,the County may be able to impose an LUP requirement on new tobacco retailers ( i.e.,with only prospective effect) using a general welfare standard if there is a rational basis for requiring tobaccos retailers to obtain LUPs. As for existing businesses which"substantially change its mode of operation,"although the factors listed in the draft ordinance might meet a general welfare standard for purposes of regulating new tobacco retailers, a tobacco retailer legally in business before the effective date of the ordinance generally cannot lose the right to conduct a tobacco product retail business unless nuisance conditions exist on the premises. As discussed above, the factors set forth in the draft ordinance("Performance Standards")may meet a general welfare standard but do not amount to a nuisance : "an undoubted menace to public health, safety or morals"(see Suzuki v. City of Los Angeles (1996)44 Cal. App. 41 263, 275-276). In addition, as stated above, a prior legal nonconforming use cannot be subjected to an LUP requirement unless it expands or enlarges the use (Longtin, California Land Use, 2d Ed. (1987),Vol. 1, §3.80[4], p.609). Although there is generally no right to expand a nonconforming use, a person has a fundamental vested right to continue operating an established business (Goat Hill Tavern v. City of Costa Mesa (1992)6 Cal,App. 411 1519)). Therefore,without an expansion or enlargement of the use or a demonstrated nuisance on the premises, an existing tobacco retailer generally could not be deprived of the right to continue his or her business nor could he or she be legally required to obtain an LUP for breaching one of the"Performance Standards" listed in the draft ordinance. We note also that an applicant for an LUP has the"burden of proving by clear and convincing evidence that the proposed use will not result in the sale or distribution of tobacco products to minors, adversely affect the safety or welfare of the community, result in undue concentration of tobacco retailers,or detrimentally affect nearby communities." (§II.B. 3e). This appears to be a very difficult, if not impossible,burden of proof, given the far reaching and broad sweep of this requirement. It also goes beyond the usual"substantial evidence" standard employed in malting LUP decisions. Thus, the vagueness of the factors to be considered and the extremely heavy burden of proof upon an applicant could result in a challenge based on denial of due process (deprivation of right to conduct business of selling lawful tobacco products and without adequate notice and opportunity to be heard: i.e., substantive and procedural due process claims)and denial of equal protection of the laws by singling out tobacco retailers for special treatment and subjecting them to a time-consuming, burdensome, and expensive LUP process which is not required for retailers of other products. The Board directed this office to examine the constitutional issues involved in these two sections of the draft ordinance. We feel we should point out, however, that the likeliest challenge to Board of Supervisors page 10 Model Tobacco-Free Ordinance February 5, 1998 the proposed LUP process for tobacco retailers will be on the ground that this area of the law is expressly preempted by state law. Penal Code §308. Penal Code §308 prohibits sales of tobacco products to minors. It provides civil and criminal penalties (Pen. Code §308(a)). It expressly provides that no city or county"shall adopt any ordinance inconsistent with this section." (Pen. Code §308(e)). "An otherwise valid ordinance is preempted by state statute if the ordinance duplicates or contradicts the statute, or if the ordinance enters into a field of regulation expressly or impliedly reserved to the state."(Water Quality Assn. v County of Santa.Barbara (1995) 44 Cal. App. 4X'732, 741). To the extent the LUP provisions in the draft ordinance establish penalties based on illegal sale of tobacco products to minors,they would be subject to a preemption challenge. Pursuant to this draft model ordinance, an existing business may lose its"deemed approved" status by selling tobacco products to minors (see"Performance Standards" in §1I.B.3a.Lb)) or a new retailer(or existing business that changes its mode of operation) will not be able to obtain an LUP if he or she cannot prove by clear and convincing evidence that the proposed use will not result in the sale or distribution of tobacco products to minors (see §II.B.3e), These are penalties for the sale of tobacco products to minors which probably are preempted by Penal Code §308.'° The Suzuki and City of Oakland cases discussed above, which required LUPs for new liquor stores and those which lost their"deemed approved" status, survived preemption challenges because they were based on the municipality's police power to control and abate nuisances. In the draft ordinance now under consideration, the nuisance rationale may not be viable where the penalties are imposed(and the use is denied or revoked) for illegal sale of tobacco to minors because the state has fully occupied this field through Penal Code §308. It is permissible to enact an ordinance which discourages activity made illegal by the state through a licensing procedure as long as the ordinance is intended to discourage the activity proscribed by state law and does not attempt to either expand or reduce the degree to which the particular activity regulated by state law is criminally proscribed(Bravo Vending v. City vfRancho Mirage(1993) 16 Cal. App. 41383,412). In Bravo Vending, the city adopted an ordinance which required tobacco retailers to obtain a license and prohibited sales of cigarettes through the use of a vending machine. The court upheld the ordinance because it did not impose any penalties for sales of tobacco products to minors and was therefore,not preempted by state law. The ordinance did not distinguish to whom tobacco products could be sold(Id. at 403). The court found the purpose of the ordinance was to regulate the business of selling cigarettes in order to make illegal purchases of cigarettes by minors 1OWe do not distinguishing between the draft ordinance provisions which duplicate state statute and those which are inconsistent with state statute since both areas come within the preemption doctrine(see e.g.,Suter v. City of Lafayette(1997) 57 Cal. App. 411 1109, 1123 (firearm licensing requirements);Morehart v. County of Santa Barbara (1994) 7 Cal. 4"725,747). ............................................................................................1.1.111, . ................................................................................... .............................. Board of Supervisors page 11 Model Tobacco-Free Ordinance February 5, 1998 less likely by prohibiting the particular manner of sale most often used by minors (Id at 409).11 Accordingly, we conclude that the proposed LUP process, if adopted, could be challenged as preempted by Penal Code §308, in addition to the possible due process and equal protection constitutional attacks discussed above. This office has received the attached comments from the Community Development Department Director concerning the proposed ordinance. These comments are consistent with comments submitted by several of the persons and entities who responded to the Health Services Department's request for comments,especially concerning the difficulties associated with creating and enforcing an LUP process for tobacco retailers, some of which are discussed above. In addition,Mr. Barry advises that eight additional billboards would be impacted by adoption of the proposed ordinance. Locations are included in his memorandum. HADS1LV\MEM0S\T0BACC0.WPD "The County currently requires that vending machines have certain licenses and be located 25 feet from any entry into the premises (C.C.C. Ord. Code §440-6.002).