Loading...
HomeMy WebLinkAboutMINUTES - 05091995 - 10.3 I.O.-3 TO:, BOARD OF SUPERVISORS S L Contra �, e INTERNAL OPERATIONS COMMITTEE FRU Costa M: County r DATE: May 1, 1995 SUBJECT: STATUS REPORT ON PROPOSED ORDINANCE TO PROHIBIT ADVERTISING ALCOHOL AND TOBACCO PRODUCTS ON BILLBOARDS WITHIN 2000 FEET OF A SCHOOL SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION: 1 . AGREE to hold another hearing on the need for the subject Ordinance and DIRECT the Health Services Director to present to the Internal Operations Committee on June 5, 1995 at 7 : 30 A.M. all available evidence and documentation supporting the need and justification for this Ordinance as outlined in the memorandum from the County Counsel ' s Office dated April 25, 1995 . 2 . DIRECT the County Counsel to prepare and present to our Committee not later than June 5, 1995 separate Ordinances prohibiting the advertising of alcohol and tobacco products on billboards within 2000 feet of schools within the unincorporated area of the County, as is suggested in the memorandum dated April 25, 1995 from Deputy County Counsel Diana Silver, along with findings which are appropriate to each Ordinance. 3. DIRECT the Community Development Department staff and Health Services Department staff to determine how many billboards there are in the unincorporated area of the County which are located within 2000 feet of a school, including schools which are both in an incorporated city or town as well as in the unincorporated area of the County but within 2000 feet of a billboard which is in the unincorporated area of the County and report their findings and conclusions to the Internal Operations Committee on June 5, 1995 . CONTINUED ON ATTACHMENT: X YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE I OTHER SIGNATURE(S): ACTION OF BOARD ON May 9, 1995 APPROVED AS RECOMMENDED X OTHER X APPROVED the recommendations as presented; DIRECTED the County Administrator to provide for inclusion of this issue on the City County Relations Committee agenda. VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS(ABSENT None ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. ATTESTED May 9, 1995 Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF CC,. County AdministratorPE RS AND6 COUNTY ADMINIS ATOR Health Services Director Community Development Director County Counsel Y �Z �� DEPUTY I .O.-3 -2- 4 . DIRECT the Health Services Department staff to review alternatives which are less intrusive than limiting the "free speech" rights of the billboard owners and alcohol and tobacco companies which advertise on billboards and report to the Internal Operations Committee on June 5, 1995 on why any such alternatives are inadequate to control the alleged tendency of billboard advertising of alcohol and tobacco products to encourage the use of their products by those unable to legally purchase their products . BACKGROUND: On March 28, 1995, the Board of Supervisors held an extended hearing on a proposed ordinance which would prohibit the advertising of alcohol or tobacco products on billboards , within 2000 feet of a school in the unincorporated area of the County. At the conclusion of the hearing, the Board referred the proposed ordinance to our Committee. Our Committee was asked to review the ordinance and report back to the Board of Supervisors with recommendations for what further action the Board should take. On May 1, 1995, our Committee held a meeting with staff from the Health Services Department, Community Development Department and County Counsel ' s Office as well as representatives from the Substance Abuse Advisory Board, Anheuser-Busch, Markstein Beverage Company, Gannett Outdoor Company, Patrick Media Group and concerned citizens . The County Counsel summarized the content of an April 25, 1995 memo to our Committee from Deputy County Counsel Diana Silver. In particular, it was recommended that the Board of Supervisors add to the administrative record regarding tests # 3 and # 4 of the Central Hudson decision test for the constitutionality of restrictions on commercial speech. [Central Hudson Gas & Electric Corp. v. Public Service Commission ( 1980) 447 U.S. 557, 566 ] . Extended discussion followed, much of which tended to focus on the issue of whether there was evidence that the location of billboards in the unincorporated area of Contra Costa County which advertised alcohol and/or tobacco products tended to encourage or cause the underage use of tobacco or alcohol products which the users were otherwise unable to legally obtain. In addition, there was discussion about whether the proposed ordinance would meet the four tests of the Central Hudson case, particularly test # 3, which requires that the regulation (ordinance) directly advance the substantial governmental interest and test # 4, which requires that the regulation be narrowly tailored to serve the county' s asserted substantial interest and is not more extensive than necessary. There was also considerable discussion about whether billboard advertising is intended to or actually does influence the consumption of tobacco and/or alcohol products by underage individuals as opposed to simply attempting to influence the viewer of the advertising to switch brands of the product which is advertised, assuming that the viewer is already a consumer of the product. There was also considerable discussion about the extent to which the U.S . Supreme Court' s recent (April 19, 1995) decision in the Rubin v. Coors Brewing Co. case undermined or tended to reverse Posadas and Edge Broadcasting cases . Representatives from Anheuser-Busch identified a number of activities their company has undertaken to discourage the use of alcohol beverages by minors. J I .O.-3 A -3- As a result of the discussion which took place, and the advice from the County Counsel ' s Office, our Committee is prepared to conduct an additional hearing for the purpose of allowing additional testimony to be presented to our Committee by interested parties in support of or against the findings identified by the County Counsel ' s Office in the attached April 25, 1995 memorandum in order to have that testimony made a part of the administrative record. We have scheduled an additional meetings with all interested parties for Monday, June 5, 1995 at 7 : 30 A.M. for this purpose. a . DAVIS WRIGHT TREMAINE LAW OFFICES 2600 CENTURY SQUARE'150I FOURTH AVENUE'SEATTLE,WASHINGTON 981OI-1688 (206)622-3150'FAx:(2o6)628-7699 P.CAMERON DEVORE (2o6)628-7642 May 1, 1995 Victor J. Westman, Esq. County Counsel Contra Costa County County Administration Building 651 Pine Street, 9th Floor Martinez, California 94553 Re: Reaction to your Memorandum of 4/25/95 to Phil Batchelor Concerning Proposed Alcohol and Tobacco Billboard Ban Ordinance Dear Vic: I have had an opportunity to review your above memorandum on legal aspects of the proposed alcohol and tobacco billboard ban. While it is my intention to discuss your conclusions during my testimony today in the hearing before the Internal Operations Committee, I thought it would be useful to provide you and the Supervisors with a brief written summary of my testimony, particularly as it relates to your April 25 memorandum. 1. The significance of Rubin v. Coors Brewing Company. Seldom do my predictions come true so quickly! As I advised you and the Supervisors on March 28, I predicted that the U.S. Supreme Court would decide Coors, and would make it clear that Posadas was just another commercial speech case applying the Central Hudson rule, not in any way supporting special deference to restrictions on advertising speech concerning alcohol beverage, tobacco products or gambling. That is precisely what the Court did. Coors took Posadas totally off the board as providing any authority for relaxed legislative rulemaking concerning possibly harmful products and their misuse. Central Hudson and its most recent progeny, Edenfield and'Ibanez, apply with full vigor. 37853\6\00016.LTR Seattle ANCHORAGE,ALASKA'BELLEVUE,WASHINGTON'BOISE,IDAHOHONOLULU,HAWAII'LOS ANGELES,CALIFORNIA PORTLAND,OREGON'RICHLAND,WASHINGTON'SAN FRANCISCO,CALIFORNIA'WASHINGTON,D.C. SHANGHAI,CHINA Victor J. Westman, Esq. May 1, 1995 Page 3 conjecture, or mere "anecdotes", as Coors specifically holds. General assumptions about "advertising increasing overall consumption" which are untrue as to alcohol beverages in any event, simply are not relevant to proving any linkage between advertising and underage consumption, and will not suffice under the First Amendment. As testimony from Francine Katz of Anheuser-Busch will clearly indicate, this gap in empirical evidence is one that I believe that no amount of additional testimony can ever remove. Therefore, it seems to me that both legally and practically it is time to discuss cooperation with Anheuser-Busch, so that the voluntary education programs described by Francine Katz can be most effectively carried out here. I believe that everyone's interest will ultimately be best served 'if all hands work cooperatively to make real advances in reducing illegal underage consumption in Contra Costa County. I look forward to discussing these matters with you in greater detail. Sincerely yours, DAVIS WRIGHT TREMAINE P. Cameron DeVore PCD/amw cc: Board of Supervisors 37853\6\00016.LTR Seattle 1' -GANNEff �DO� , CGNTRA CGSTA COUNTY f RECEIVED i. April 21, 1995 s APR ? C 1995 f i Claude L. Van Marter -- - Assistant County Administrator OFFICE OF Contra Costa County COUNTY ADMINISTRATOR County Administrative Building 651 Pine Street, 11th Floor Martinez, CA 94553-1229 Re: Proposed Ordinance to Prohibit Alcohol and Tobacco Messages on Billboards Dear Mr. Van Marter: Thank you for forwarding a copy of the notice informing us that on May 1, the Internal Operations Committee of the Board of Supervisors will review the proposed ordinance to ban all advertising copy/messages for alcohol and tobacco products on billboards within 2000 feet of schools. As one of the larger billboard companies operating in Contra Costa County, Gannett Outdoor may be affected by this ordinance, and we plan on attending and participating at the May 1 meeting. At this stage we are not positive we will be affected, as the County has not indicated which billboards, if any, would be affected by this ordinance. If there is a problem in Contra Costa County with illegal smoking and drinking by underage youths, Gannett Outdoor would like to be part of the solution. Gannett has frequently posted billboard messages encouraging youths to not smoke or drink. Likewise, Gannett Outdoor voluntarily has adopted a policy to not place ads for such adult products within 500 feet of schools: 500 feet is the generally accepted distance a typical billboard message can be readily viewed and understood. Of course, we cannot reduce all public discourse to the level acceptable only to children. Gannett Outdoor and Patrick Media, the other major company in Contra Costa County, have offered to work with the County to relocate every billboard within 2000 feet of schools to other areas. The only estimate the County has given is that there might be only four billboards affected by this ordinance; if this is true, then relocation might be easily achieved. If this suggestion is not acceptable, we are willing to work with the County to help prevent illegal smoking and drinking by youths, but we need more information on the particulars of the problem the County is trying to solve. A GANNETT OUTDOOR • LEGAL COUNSEL'S OFFICE "�� 1311 TERMINAL STREET,WEST SACRAMENTO,CA 95691 (916)372-8252 FAX(916)372-8601 Claude L. Van Marter April 21, 1995, p.2 Thus, to ascertain exactly what we can do in a positive manner, we'd appreciate some information: 1. How many billboards does the County believe are located within 2000 feet of schools? 2. How many schools have billboards within 2000 feet of them? -3. Which schools complained of tobacco or alcohol messages being too close to them prior to this ordinance being drafted? 4. How-many underage children were arrested or cited for smoking tobacco in the past year in Contra Costa County? 5. How many underage individuals were arrested or cited for alcohol possession/drinking last year in Contra Costa County? 6. How many business establishments or individuals were arrested or cited for selling or giving tobacco products to children in Contra Costa County last year? 7. How many business establishments or individuals were arrested or cited for selling or giving alcohol products to underage individuals in Contra Costa County last year? 8. How many newspapers/magazines are there in school libraries with tobacco and/or alcohol ads? 9. How many on-site signs are there for tobacco and alcohol products within 2000 feet of schools in Contra Costa County? 10. What is the expected cost of enforcing this ordinance? Has any study been done whether enacting and enforcing this ordinance is the best use of the public's money to discourage underage smoking and drinking? As your County Counsel explained at the Board of Supervisors hearing on this matter, any ordinance restricting free speech puts the County at legal risk. No other entity in California has attempted to prohibit advertisements for products that are legal for adults; indeed, on April 18, 1995, the Assembly Health Committee rejected a similar proposal to ban tobacco advertisements on Claude L. Van Marter April 21, 1995, p. 3 billboards in the vicinity of schools (AB 1162, Speier: both the original version, calling for a one mile ban, and the amended version, calling for a 1000 foot ban, were defeated). While the proponents urge the County to "take the lead" on this issue, taking "the lead" may well mean Contra Costa County will be the target for anyone wishing to legally challenge the ordinance. Not only are major . corporations' rights and interests directly challenged by this ordinance, but many small businesses, advertising groups, civil rights groups, and free speech advocates traditionally have opposed restrictions on First Amendment rights. Gannett Outdoor applauds and supports your efforts to eliminate illegal smoking and drinking. However, we do not believe there is any data to indicate this ordinance will stop, or reduce, smoking and drinking by youths. In fact, at the Board's hearing, one of the high school advocates testified smoking and drinking by high schoolers was just as prevalent in towns where there are no billboards as in other Contra Costa County communities. If the proposed ordinance to be considered on May 1 differs from the draft the Board reviewed on March 28, we'd appreciate it if you could forward us a copy, along with any staff report or data to be reviewed at the.May 1 meeting. Again, when we all know the facts, we may well be able to work together to come to a mutually acceptable conclusion. If there are only a few signs involved, it may be easier for all parties to agree to move those signs, than have both sides spend hundreds of thousands of dollars on attorneys. Likewise, if it is determined the problem is just as prevalent in communities totally without billboards as those with billboards, then perhaps the County should direct its energy (and tax dollars) to other solutions, such as more vigorous law enforcement or educational efforts. Veru yours, R na W. Beals Vice President/Legal Counsel RWB:st cc: Diana Silver, County Counsel's Office e . w COUNTY COUNSEL'S OFF/CE CONTRA COSTA COUNTY CONTRA COSTA COUNTY RECEIVED MARTINEZ, CALIFORNIA APR 2 61995 Date: Ap r i l 25, 1995 K Or f!CE OF s :� 111 AM UNISTRATOR To: Phil Batchelor, County Administrator Attn: Claude Van Marter, Assistant County Administrator From: Victor J. Westman, County Counsel By: Diana J. Silver, Deputy County Cts el Re: Proposed Alcohol and Tobacco Billboard Ordinance INTRODUCTION. On March 28, 1995, the Board of Supervisors held a hearing to consider the adoption of an ordinance which would prohibit billboard advertising of tobacco and alcohol products in the unincorporated area within 2000 feet of a school . On April 10, 1995, you requested this office to prepare a report analyzing the current status of the law in this area, estimated costs for litigation of the issues involved and findings in support of such an ordinance for consideration by the Internal Operations Committee at its May 1, 1995 meeting. As explained below, the law in this area is unsettled. Although the United States Supreme Court has recently affirmed the Central Hudson case' s test for First Amendment validity of a commercial speech regulation, the federal Fourth Circuit Court of Appeals has not yet ruled on pending challenges to similar ordinances adopted by the City of Baltimore . Legal costs cannot be predicted with certainty. If the case is submitted solely on briefs and the record of the administrative proceedings and no testimony or additional evidence, including discovery, is produced in court, the costs would be less than for a full trial . A trial could last two to three weeks or longer. In addition, one or more appeals likely would result as well as possible related federal litigation, which could expose the County to attorneys' fees and costs claims . Although this memorandum includes additional findings for consideration to support an ordinance, the Board of Supervisors may wish to hold another hearing to allow testimony and documentation to be introduced in support of or against the proposed findings, some of which are not now supported in the current administrative record of proceedings . Phil Batchelor 2 April 25, 1995 ANALYSIS OF LAW. In Packer Corp. v. Utah (1931) 285 U. S . 105, the United States Supreme Court upheld Utah' s ban on tobacco billboard advertising. Since that decision, however, a number of federal statutes have been enacted which, to some degree, have occupied this area of regulation (see e .g. 15 U. S . C. 1334 , Federal Cigarette Labeling and Advertising Act . ) Under 15 U. S . C. 1334 (b) , if cigarette labels conform to the federal requirements, a state (including its political subdivisions) may not enact legislation affecting cigarette advertising if the regulation is based on smoking and 'health. A number of arguments have been made that 15 U. S . C. 1334 (b) does not entirely preempt the field of cigarette advertising. Generally, it has been argued that federal statutes do not apply to purely intrastate commerce, which is under the state' s jurisdiction, nor to the proper exercise of the state' s police powers nor to topics other than smoking and health. Accordingly, at least one city has enacted an ordinance banning outdoor tobacco product advertising based largely on findings which emphasize a connection between exposure of minors to cigarette advertising and smoking by minors in violation of state laws . (see Cincinnati Ordinance No. 193 , enacted June 2 , 1994 . ) Apart from the federal preemption issue when tobacco products are involved, there is an overriding question with regard to the constitutionality of "commercial speech" regulations under the First Amendment to the U. S . Constitution. The United States Supreme Court has established a test for constitutionality of restrictions on commercial speech known as the Central Hudson test : "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 Gas & Electric Corp. v. Public Service Commission (1980) 447 U.S . 557, 566) There are four elements to the Central Hudson test : 1 . whether the advertising in question is unlawful or misleading; 2 . whether there is a substantial governmental interest; Phil Batchelor 3 April 25, 1995 3 . whether the regulation (ordinance) directly advances this substantial interest; and 4 . whether the regulation (ordinance) is narrowly tailored to serve the county' s asserted substantial interest and is not more extensive than necessary. The City of Baltimore enacted two ordinances in 1993 : one regulating cigarette billboard advertising and one regulating alcohol beverage billboard advertising. ' Two suits were filed in federal district court by a billboard owner and Anheuser-Busch. The federal district court, applying the Central Hudson test, decided these cases in the city' s favor. They are now on appeal in the federal Fourth Circuit Court of Appeals . We understand that, at least in the alcohol billboard case, the Fourth Circuit heard argument on March 6, 1995 . We are not familiar with the processes of the Fourth Circuit but if comparable to the Ninth Circuit Court of Appeal, we may expect a decision within the next several months to a year from the date of argument . In the tobacco billboard case, the district court found that the ordinance was not preempted by federal cigarette labeling laws as it was aimed at preventing illegal sales of cigarettes to minors and was not "based on smoking and health. " (Penn Advertising v. City of Baltimore (1994) 862 F. Supp 1402) As the Baltimore cases involve ordinances similar to Contra Costa' s proposed ordinance, it is anticipated that the Fourth Circuit decision will resolve the uncertainty in this area. On April 19, 1995 , the United States Supreme Court found that a federal statute prohibiting beer labels from displaying alcohol content violated the First Amendment to the U. S . Constitution because it failed to advance a governmental interest in a direct and material way under the third element of the Central Hudson case (Rubin v. Coors Brewing Company) 1995 U. S . , 1995 WL 227629) . In a footnote, the Court stated that its previous decisions in Edge Broadcasting and Posadas (U. S. v. Edge Broadcasting Co. (1993) 509 U. S . Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico (1986) 478 U. S . 328) did not create an exception to the Central Hudson standard to allow a local or state government to have broader latitude to regulate speech which ' We note that the City of Baltimore adopted these ordinances because they believed they were socially desirable . The City Solicitor (i .e . , the City Attorney) , however, had advised the City Council of Baltimore that it was unlikely such ordinances would withstand challenges on First Amendment and preemption grounds . The City Council of Baltimore thereafter relied on other attorneys in preparing the challenged ordinances . Phil Batchelor 4 April 25, 1995 promotes socially harmful activities, such as alcohol consumption, than it has to regulate other types of commercial speech. (Rubin v. Coors Brewing Co. (1995) U. S . 1995 WL 227629, footnote 2) We note that a bill has been introduced in the California assembly (AB 1162) which would prohibit any person from advertising tobacco products on billboards located within one mile of a school . We do not know if this bill or some form of it will be adopted by the California Legislature . As we stated at the Board hearing on March 28, 1995, this office cannot predict with any legal certainty that the county would prevail in a challenge to the proposed ordinance banning billboard advertising of tobacco and alcoholic beverages near schools even with the hereinafter discussed further hearing and adoption of additional findings . We will keep the Internal Operations Committee and Board of Supervisors informed of the current status of proposed legislation as well as the Baltimore and other relevant cases awaiting decision. LITIGATION COSTS . As representatives of the billboard advertising and alcoholic beverages sales have already appeared before the Board of Supervisors to protest the proposed ordinance, and in light of litigation now pending, it is unlikely that an ordinance, if adopted, would not be challenged. As discussed above, such challenges would be primarily on First Amendment and federal preemption grounds . We cannot estimate costs with any certainty without knowing the type of challenge that would be filed and whether it would be filed in superior court or in federal district court or both. Assuming that an action is filed in superior court for a writ of mandate and would not involve any additional testimony, discovery or taking of additional evidence and would consist solely of preparation of the administrative record and briefs, we estimate that approximately one to two hundred hours or more of attorney time would be involved to defend the ordinance through the superior court level . Appellate time would be additional as would additional time spent on a separate action in federal district court and appeals from that action. This could result in at least another fifty to one hundred hours of attorney time . Although it would not appear appropriate for the court to allow additional testimony or discovery in this type of case, if allowed and a trial held, which could take approximately two to three weeks or longer, we would expect the number of attorney hours to be at least double the foregoing amounts . In addition, if the county does not prevail in a superior court action there could be an exposure for attorney' s fees and costs in a separate federal court action. Again, we can only speculate but such fees and costs could be upwards of $200 , 000 to $400 , 000 . In addition, numerous other county (e .g. , i Phil Batchelor 5 April 25, 1995 Health Department) staff hours would be involved in preparing documents for hearing or trial . PROPOSED FINDINGS . You have asked us to provide findings for the proposed ordinance . Initially, the Internal Operations Committee may want to consider whether it would be appropriate to draft two ordinances as was done in Baltimore . If separate tobacco and alcohol beverage ordinances are drafted, there would be separate findings for each ordinance . As the tobacco billboard ban would necessitate additional findings regarding a claim of preemption by cigarette labeling laws, two ordinances may be appropriate . Each ordinance, however, would contain findings aimed at preventing minors from violating state law which prohibits sales of tobacco and alcohol to persons under 18 and 21 years of age respectively (Pen. Code § 308 : tobacco; Bus . & Prof . Code § 25658 ; alcohol) . We note that there was not testimony or documents submitted to the Board on March 20, 1995 in support of and concerning all of the following proposed findings . Accordingly, we recommend that should the Internal Operations Committee determine to proceed further with these proposed ordinances, it consider suggesting to the Board that another hearing on the proposed ordinance (s) be to allow such testimony and documentation to be submitted to the Board by interested parties (e .g. , County Health Services Department) in support of or against the following findings : (1) California Penal Code section 308 makes it unlawful for any person to knowingly sell, give, or in any way furnish tobacco products to any individual under the age of 18 years . (2) California Business and Professions Code section 25658 makes it unlawful for any person to sell, furnish, or give any alcoholic beverages to any person under the age of 21 years . California Business and Professions Code section 25662 makes it unlawful for any person under the age of 21 years to have an alcoholic beverage in his or her possession in any public place . (3) More than three (3) million minors under the age of 18 consume more than 947 millions packages of cigarettes annually in the United States, yielding gross sales to the tobacco industry each year of approximately $1 billion. (4) Alcoholic beverages are the second most heavily advertised product in America (after cigarettes) and the alcoholic beverages industry spends more than $ 100 million annually for outdoor advertising of its products . Phil Batchelor 6 April 25, 1995 (5) Outdoor advertisements are a unique and distinguishable medium of advertising which subjects the general public to involuntary and unavoidable forms of solicitation, as the United States Supreme Court recognized in upholding Utah' s ban on tobacco billboards in Packer Corporation v. Utah (1931) 285 U. S . 105 . (6) A ban of cigarette billboards in residential neighborhoods has been upheld by a federal district court (Penn Advertising of Baltimore, Inc. v. City of Baltimore (U. S .D. C. Md. 1994) 862 F. Supp. 1402) against both First Amendment and federal preemption challenges . (7) In a separate federal district court case, a ban on billboards advertising alcohol products in all but certain designated business and industrial zones succeeded against a First Amendment challenge because the court found that the ordinance directly advanced a substantial governmental interest (preventing violation of state laws) and was not more extensive than necessary to serve that interest . (Anheuser-Busch, Inc. et al . v. City of Baltimore, et al . (U. S .D. C. Md. 1994) 855 F. Supp 811) . (8) As recognized by the courts, "if advertising increases consumption among the general population, it is also reasonable to accept the proposition that advertising increases consumption among youths . If anything, this statement may be more applicable to the youthful population than to the adult population due to the impressionable nature of youngsters . " (Penn Advertising v. City of Baltimore et al . (U. S .D. C. Md. 1994) 862 F. Supp 1402) . (9) The United States Supreme Court and other courts have recognized the positive relationship between advertising and consumption.2 (10) In addition to judicial recognition of the general link between advertising and consumption, there is specific and convincing evidence that tobacco advertising plays a significant role in stimulating illegal consumption of tobacco products by minors, including: Davis R. "Current trends in cigarette advertising and marketing" . New England Journal of Medicine . 1987; 316 : 725- 732 . Chapman S . , Fitzgerald B . "Brand preference and advertising recall in adolescent smokers : some implications for health promotion" . American Journal of Public Health. 1982 ; 72 : 491-494 2 See Central Hudson Gas and Elec. v. Pub. Serv. Comm'n (1980) 447 U. S . 557, 569 ; Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986) 478 U. S . 328, 341-342 ; Dunagin v. City of Oxford (1983) 718 F . 2d 738 , 747-751, cert . den. 104 S . Ct . 3533 (1984) . Phil Batchelor 7 April 25, 1995 Klintzner M. Gruenewald PJ, Bamberger E. "Cigarette advertising and adolescent experimentation with smoking. " British Journal of Addiction. 1991; 86 : 287-298 Goldstein AO, Fischer PM, Richards JW, Cretin BA. "Relationship between high school student smoking and recognition of cigarette advertisements . " Journal of Pediatrics . 1987; 110 : 488-491 Hunter SM, Webber LS, Berenson GS . "Cigarette smoking and tobacco usage behavior in children and adolescents : Bogalusa Heart Study. " Preventive Medicine . 1980; 9 : 701-712 Hunter Sm, Croft JB, Burke GL, Parker FC, Webber LS, Berenson GS . "Longitudinal patterns of cigarette smoking and smokeless tobacco use in youth: the Bogalusa Heart Study. " American Journal of Public Health. 1986 ; 76 : 193-195 Aitken PP, Leathar DS, O'Hagan FJ, Squair SI . "Children' s awareness of cigarette advertising and brand imagery. " British Journal of Addiction. 1987 : 82 : 615-622 Charlton A. "Children' s advertisement awareness related to their views of smoking" . Health Education Journal . 1986 ; 45 (2) 75-78 Aitken PP, Leathar DS, Squair SI . "Children' s awareness of cigarette brand sponsorship of sports and games in the UK" . Health Education Research. 1986 ; 1 : 203-211 Alexander HM, Calcott R. Dobson AJ, et al . "Cigarette smoking and drug use in school children, IV: factors associated with changes in smoking behavior" . International Journal of Epidemiology. 1983 ; 12 : 59-66 . (11) In testimony before this Board, it was stated that a ban on billboards advertising alcoholic beverages would decrease sales of alcohol in Contra Costa County liquor stores, thus contradicting the official position of the tobacco and alcohol industries that advertising only affects brand name choices not overall consumption. (12) Minors who spend their money to buy cigarettes illegally will have less money to spend on legal and productive educational, recreational and social activities . (13) Cigarettes can cause fires, which are likely to happen where minors are illegally using cigarettes, a cause of property damage, death, injury and destruction of parklands . (14) The County Health Services Department has submitted materials regarding the illegal use of tobacco products and alcohol by minors as follows : Phil Batchelor 8 April 25 , 1995 [County statistics from Health Services Dept. could be inserted here if they are submitted] (15) According to 1992 reports by then U. S . Surgeon General, Dr. Antonia Novello ( "Youth and Alcohol : Dangerous and Deadly Consequences" ) and then U. S . Inspector General, Richard Kusserow ( "Youth and Alcohol : Drinking and Crime" ) : about one-third of all juvenile males arrested said they had used alcohol in the previous 72 hours . nearly 400 of youths in adult correctional facilities reported drinking before committing the crime . 18% of high school females and 390 of high school males say that "it' s okay to force sex if the girl is drunk. " a "striking association" exists between alcohol use and using firearms to commit suicide by 10-to 19-year olds . 400-. to 500-o of young males who drowned had consumed alcohol prior to drowning. 400-. to 500 of youths injured driving had consumed alcohol prior to driving. Among high school seniors, twice as many frequent binge drinkers skipped school (550-. versus 25o) , and nearly five times as many seniors who binged frequently damaged school property (360-o versus 8*1) . (16) An ordinance restricting the placement of advertisements for tobacco and alcoholic beverage products on billboards is a reasonable and necessary measure for reducing illegal consumption of tobacco products and alcoholic beverages by minors . (17) In order to protect legitimate business activities and to narrowly focus its effort on those advertisements which most directly affect minors who attend school, this ordinance has been narrowly tailored to protect students coming to or leaving school, or on lunch breaks or other breaks near schools . (18) Testimony and documents submitted to this Board indicate that tobacco and alcohol advertising affects minor' s illegal use of tobacco and alcohol, see e .g. study showing that Joe Camel cartoon character is better known to minors than the Mickey Mouse cartoon character. (19) Evidence mounts daily as to the connection between underage smoking and tobacco advertising, as in a study by the U. S . Department Phil Batchelor 9 April 25, 1995 of Health and Human Services, "Preventing Tobacco Use Among Young People : A Report of the Surgeon General" . Atlanta, Georgia: U. S . Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 1994 . (20) The 1994 Surgeon General' s Report contains alarming statistics and is replete with studies which establish a strong relationship between cigarette advertising images which promote the concepts of independence, healthfulness, adventure-seeking and youthful activities, themes correlated with psychosocial factors that appeal to young people, and the prevalence of initiation to smoking among the young in violation of state laws (Surgeon General' s Report at p. 195) . (21) Articles appearing in medical journals and public health publications overwhelmingly support the theory that there is indeed a strong correlation between exposure to tobacco product advertising and smoking by youth who obtain cigarettes and other tobacco products in violation of state laws . (22) Cigarette manufacturers, such as Philip Morris, U. S .A. , acknowledge through various promotional campaigns, such as its "its the Law" program that smoking is an "adult decision" and that it is contrary to their intent for children and teens to smoke and note that it is illegal to sell cigarettes and other tobacco products to minors . (23) The Board finds upon consideration of the reports and studies cited and testimony and documents presented at Board hearings on this matter, that the connection between advertising which subjects youth involuntarily and unavoidably to tobacco and alcohol beverage products advertising is so strong as to make such advertising a distinct and undeniable threat to the safety and welfare of the young as well as a strong inducement to violation of laws concerning the gift, sale or distribution of tobacco and alcoholic beverage products to minors either by manufacturers, producers, distributors, wholesalers or retailers or their agents, employees or representatives, including the purchase of such products from vending machines . (24) The Board further finds that such advertising encourages the violation of state laws which prohibit the use of tobacco or alcohol or possession by underage persons, which violations subject youth to enforcement procedures and disciplinary measures . (25) It is the intent of the Board in the enactment of this ordinance to prevent the violation and subversion of state laws enacted specifically for the protection of minors by the elimination of tobacco and alcohol beverage billboards within 2000 feet of a school . Phil Batchelor 10 April 25, 1995 (26) The Board finds that advertising displays promoting the consumption or use of tobacco or alcohol beverages by billboards within 2000 feet of a school are inimical to the enforcement of laws relating to the use of tobacco and alcohol beverages by minors . CONCLUSION. As stated above, not all of the findings are supported by evidence in the present Board' s record of proceedings . Also a number of the cited articles are not in that record. If the Board determines to proceed further, consideration should be given to holding another hearing to allow testimony and documents in support of or against these findings and the research articles cited therein to be provided and made part of the administrative record by interested parties (e .g. , the Health Department) . DJS/amc djs-4\a:\a1ctob.ord BRIEFING PACKET: TOBACCO AND ALCOHOL BILLBOARD ORDINANCE Contents Include: ♦ Additional Key Findings ♦ Background Information: Legal Issues Regarding Billboards ♦ Who Recommends Advertising Bans ♦ Sources to Contact Prepared April 3, 1995 by the Contra Costa County Tobacco Prevention Project BILLBOARD ORDINANCE: ADDITIONAL FINDINGS DATA LINKING ADVERTISING TO YOUTH USE OF TOBACCO There have been dozens - perhaps hundreds - of studies analyzing.the impact of advertising on youth. Highlights are described below. In addition, we know that even though the purchase of tobacco is illegal under state Penal Code 308, youth are buying tobacco. A. Illegal Sales of Tobacco ♦ A 1994 article in the American Journal of Public Health says teenagers spent $962 million on 516 million packs of cigarettes in 1991. More than 255 million of those packs were sold illegally to minors, netting the tobacco industry $95 million in profit. A 1990 article in the Journal of the American Medical Association estimated that 3 million young people consumed more than 947 million packs of cigarettes and 26 million containers of smokeless tobacco yearly. That represented $1.26 billion annually in illegal sales of tobacco products to minors. ♦ According to new data from the University of California, San Diego, 8.7% of youth in Contra Costa County smoked in the month prior to when the survey was conducted. But the study shows that nearly 40% are susceptible to smoking (have not made a conscious decision not to smoke) ♦ Research shows the tobacco industry's "It's the Law," campaign does not work. Many merchants do not participate and the majority of those who do are selling to minors. (American Journal of Public Health, September 1992) ♦ Buying surveys conducted in Contra Costa County over the past several years show youth are successful 70% of the time they try to buy tobacco in stores. B. The Role of Advertising in Teen Use of Tobacco "An increasing body of evidence points to the seminal role that tobacco advertising plays in the initiation of smoking...Tobacco advertising plays a major role in encouraging teens to start smoking" - UC San Diego Study, March 1994 ♦ The UC San Diego Study (March 1994) reports that tobacco advertising has reached "almost saturation levels" in its penetration of the adolescent market in California. It also reports that there is no significant difference in the level of exposure to tobacco advertising in Contra Costa, compared to the rest of the state, indicating the county has reached the same saturation level. Four out of five teen agers in the Contra Costa County region report recent exposure to cigarette advertising. (More) ♦ The Journal of the American Medical Association (February 23, 1994) ties sharp increases in smoking by teenage girls in the late 1960s and early 1970s to soaring sales of widely advertised cigarettes for women and concludes that tobacco advertising campaigns do have an effect on youth smoking rates. Between 1967 and 1973, there was an increase of 110% - 35% in the smoking initiation rate among girls from 12-17 years old. During that same period, the rate for young males did not increase. ♦ A Gallup poll reported in Advertising Age(February 21, 1994) shows 68% of Americans believe cigarette ads influence children and teens to smoke. ♦ "It is now beyond doubt that—children are very familiar with cigarette advertisements and that they take positive messages about smoking from them. ..Underage smokers are. paying more attention to cigarette advertising...cigarette advertising is encouraging children who smoke to continue the habit." University of Strathclyce, Glasgow(Hastings, Aitken, MacKintosh August 1991) ♦ Of the thousands of people who start smoking daily, 90% are under age 21; Sixty percent are not even 16. "...Teen agers buy the most heavily promoted cigarettes and 80% of all children consider advertising influential in encouraging them to begin smoking." - (Cigarette Ads and Youth, Julie Carol, Social Science Record, Fall 1988) ♦ Since RJ Reynolds began the Joe Camel campaign, Camel's share of the illegal children's market increased from .5% to 32.8%, representing$476 million in illegal sales annually. (JAMA 199 1) ♦ The US Surgeon General reported that cigarette advertising appears to increase young people's risk of smoking by conveying that smoking has social benefits and that it is far more common than it really is. (March 1994) ♦ A study (Laugesen)of advertising bans in 22 countries over 26 years shows that the more tobacco is banned, the more consumption falls. The study shows that in countries which banned all media advertising, faster falls in the percentage of young smokers than countries with fewer restrictions. Prepared April 3, 1995 by the Contra Costa County Tobacco Prevention Project BACKGROUND INFORMATION: LEGAL ISSUES REGARDING BILLBOARDS The two major issues related to banning billboard advertising for alcohol and tobacco is whether the First Amendment to the U.S. Constitution limits the authority of the Government to ban or limit advertising. The second, related only to tobacco, is whether the Federal Cigarette Labeling and Advertising Act limits the authority of state and local governments to regulate tobacco advertising. A. Does the First Amendment apply to tobacco advertising and promotion? When evaluating whether tobacco advertising is protected under the First Amendment, the doctrine of commercial speech applies. Advertising has enjoyed limited protection under the commercial speech doctrine since 1975, depending on the informational content of such speech. In 1980 (Central Hudson Gas and.Electric Corp v Public Service Commission of New York Central Hudson), the court established a four-part test for assessing the validity of commercial speech restrictions: (Other court cases: US vs Edge Broadcasting Co (1993); Edenfield vs Fane (1993); City of Cincinnati vs Discovery Network (1993)) 1. To be protected at all, the advertising must concern a legal activity and not be fraudulent or deceptive. (relevant court cases: Ibanez vs Florida Department of Business & Professional Regulation (1994); FTC vs Brown and Williamson Tobacco (1985)). Therefore, tobacco advertisements that include false statements or promote illegal activity such as smoking by minors, may be freely regulated without constitutional problems(Bystom vs Fridley High School 1987) 2. The Government interest in regulating or banning the advertising must be substantial. (Ibanez; Central Hudson; Edenfield). Since state and cities are preempted by the Cigarette Labelling Act from legislating to protect health, they must identify a different interest, such as enforcing laws that prohibit the sale of tobacco to minors. 3. The regulation must advance the government's interest. According to the AMA-sponsored article, the tobacco industry would be"hard pressed to challenge a ban on placement near schools of billboards for products that may not legally be sold to minors. The government has a substantial interest in enforcing laws that prohibit drinking and smoking by minors. Restricting billboard advertising near schools, where large number of students are likely to see them several times a day directly advances the government's interest and is related to the government's objective of deterring minors from drinking and smoking. To date, the courts have not been asked to decide whether a ban on tobacco billboard advertising (More) 1 is proportionate to the governments interest in stopping the illegal sale of tobacco products to minors. 4. The regulation must not be more restrictive than necessary to accomplish its goal. In clarifying this four-part test, the Court in 1986 (Posadas de Puerto Rico v. Tourism Company of Puerto Rico) upheld a prohibition o advertising for Puerto Rico's legal gambling Casinos, saying that while Puerto Rico could ban gambling, it could also take a lesser step of banning its advertising. In the Posadas decision, the Court made it clear (according to a report prepared by Americans for Nonsmokers Rights under contract with the US Department of Health and Human Services) that a tobacco advertising ban would be upheld. In another case (Board of Trustees of the State University of New York v Fox, 1989), the Supreme Court upheld a state university's right to restrict commercial activity on campus, specifically Tupperware parties, clarifying the fourth criteria related to the regulation not being any more restrictive than necessary to accomplish its goals. In that case, the court established a standard, declaring that there must be a "reasonable fit," between the ends and the means. B. Can State and Local Governments Ban Advertising? The power to regulate advertising in magazines and other publications affected by interstate commerce is vested with Congress only. In addition, the Federal Cigarette Labeling and Advertising Act (1965) contains a preemption clause that reads: "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to advertising or promotion of any cigarettes the packages of which are labelled in conformity with the provisions of this chapter." At the request of the American Medical Association, the law firm of Sidley and Austin in Chicago, prepared "Legal analysis of approaches to state and local regulation of tobacco advertising and sales in the US" (Tobacco Control 1994 3: 257-262 Bierig, Weber and Scarborough). The article concludes that "state and local governments have great latitude to restrict the sale of tobacco products. State and local governments also have significant authority to regulate the advertising and promotion of cigars and looses tobacco. These governments may also regulate the advertising and promotion of cigarettes in certain ways - although any regulation must be carefully crafted to avoid conflict with federal law. (Emphasis added) The article says this about regulating tobacco advertising: Any discussion of state or local regulation of cigarette advertising must begin with the (Federal) Cigarette Act, which established a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health (15 USC section 1331). It bars state and local governments from establishing their own standards based on (More) 2 smoking and health for the advertising and promotion of cigarettes. Thus, federal law "prohibits states or their subdivisions from regulating cigarette advertising and promotion `based on smoking and health." But the article goes on to say that the preemption provision is not "all encompassing." "It does not reach state and local laws that regulate cigarette advertising or promotion on a basis other than the relationship between smoking and health. (Cipollone vs Liggette Group, Inc. 1992). The Metrodome in Minnepolis banned billboards in order to protect its young fans. That ban has not ben challenged. But in Vango Media Inc vs City of New York(1993, appeal pending), New York City adopted a local law governing the placement of ads in taxicabs. The law required the display of a minimum of one public health message pertaining to the health dangers of smoking for every four tobacco advertisements. The federal court relied on the federal preemption to strike down the ordinance. In,their ruling, the District court rejected an argument that the lawmakers were concerned with the economic consequences of smoking (rather than the health issues) STRATEGIES FOR RESTRICTING TOBACCO ADVERTISING 1. According to the article (cited above) prepared for the American Medical Association: ♦ "A state or local law that restricts cigarette advertising is most likely to survive a preemption challenge if the restriction is part of a general exercise of the police power and is not limited to tobacco products (a law prohibiting billboards near schools or other ares frequented by youth should ban all products that may not be legally sold to children). ♦ A law that applies to all products that may not be sold to minors - and does not even mention cigarettes - strengthens the argument that the law is not based on smoking and health, but rather on the "state's" interest in enforcing laws that ban underage drinking and smoking. The article also proposes another strategy is to encourage state attorneys general to sue cigarette companies under existing statutory and common law prohibiting deceptive business practices and avoid litigation related to a local billboard ordinance. Americans for NonSmokers' Rights, in a paper prepared for the US Department of Health and Human Services says: 1. Under their traditional "police powers," states, cities and counties have the authority to protect the safety and well-being of children. According to ANR, "It is also illegal to sell, and by extension to promote tobacco products to children. It has been suggested that tobacco advertisements could be banned within a set distance of schools, community centers, churches and other facilities that cater to children...In the case of such law, it would be difficult for the (More) 3 tobacco industry to argue that Congress intended to limit State and local power over tobacco advertising and promotion to children. The AMA a article sites a California Supreme Court decision (WL 314406) upholding the Court of Appeals in Magini vs RJ Reynolds Tobacco Company: "As early as 1891, the legislature cared deeply enough about smoking and minors that it prohibited the sale of cigarettes to them...For over a century, with a watchful eye, in its role as parent patriae, it has maintained a paternalistic vigilance over this vulnerable segment of our society. It is now asserted that the plaintiffs effort to tread upon Tobacco Road is blocked by the nicotine wall of congressional preemption. The federal statue does not support such a view. Congress left the states free to exercise their police power to protect minors form advertising that encourages them to violate the law. Plaintiff may process under that aegis." 2. In drafting legislation, the findings and purpose sections should focus on protecting children from illegal sales and avoid general discussions of advertising and health risks,an area preempted by Federal law. SITUATIONS WHERE BANS HAVE BEEN SUCCESSFUL: Non Billboard Bans 1. Numerous bans on advertising on public transit systems, including one approved in Contra Costa several years ago. (also Alameda county, BART, Santa Clara County and others in different states) 2. City and county bans on free cigarette samples. (Dozens including Contra Costa County and Alameda County) 3. A ban on tobacco billboards in sports facilities. (Baltimore, Boston, Houston, los Angeles, Oakland, Seattle and others) Billboard Bans: 1. Utah banned tobacco billboards in 1929, along with public transportation displays, point-of- purchase advertising and merchandise racks. A 1932 US Supreme Court case (Packer Corp v Utah) researched by the Senate Counsel in Minnesota (November 1988) said a state prohibition on the public display of tobacco advertisements other than in newspapers and magazines was a valid exercise of the state power and did not violate the US Constitution. In that Minnesota report, Senate Counsel Michael Scandrett said a billboard ban, which was even narrower than Utah's restrictions, would be constitutional under the Packer ruling. (More) 4 2. In February 1994, the City of Baltimore adopted a ban on tobacco and alcohol billboards. That ban is being challenged, but has been upheld at two levels. 3. In June, 1994, Cincinnati, Ohio banned all tobacco billboards effective in June 1996. Signs within 500 feet of schools or other facilities frequented by children were banned when the ordinance passed. The law also extends to advertising on public transportation. 4. Preston, Minnesota has an ordinance which is being challenged. A WORD ABOUT BALTIMORE The ordinance banning billboards advertising alcohol and tobacco is actually two separate zoning ordinances, making it possible to describe in different ways what the purpose of the restrictions is. In the ordinance addressing tobacco: ♦ The findings describe illegal sales and the link between advertising and consumption, listing in the findings a whole page of studies, with nearly another page about Maryland's teen consumption. ♦ Baltimore's city attorney handled their case, keeping the costs down. Another way they contained their costs was by filing a motion for a summary judgement immediately and winning, thus avoiding litigation. An outside attorney (Julie Squire) who filed an amicus brief said she thinks the key to keeping costs down is to use county counsel and to obtain the briefs filed by other jurisdictions (she'll be happy to give them to us). ♦ Kevin Jordan, of Citizens Planning and Housing Association, says the judge put more emphasis on whether the city had used a credible process to determine the need for the ordinance than on which study had the most credibility. ♦ Comments made by the mayor, as well as testimony provided during the ordinance passage, were used by the tobacco industry to prove the city was actually using health as a motivation for the ordinance passage (the mayor made a statement about protecting the health of young people the day he signed the ordinance) ♦ Jordan said the judge seemed to like references to Governor's commission and Surgeon General recommendations about advertising restrictions. 5 WHO RECOMMENDS ADVERTISING BANS: ♦ A February 1994 Gallup poll, conducted with Advertising Age, shows half of the smokers polled believe the US government should restrict cigarette advertising. ♦ UC San Diego researchers John Pierce, author of widely respected studies of tobacco use in California, says, "...it is time to extend the cigarette advertising ban to all media...Tobacco advertising plays an important role in encouraging young people to begin this lifelong addiction..." ♦ Republican Congressman Michael DeWine, member of the National Commission on Drug Free schools, reporting on the group's analysis of tobacco and advertising said of his group, "Some members wanted to go all the way and say that advertising ought to be banned." ♦ "A ban will significantly reduce the pressure on children to smoke....it is clear that without cigarette advertising fewer children would become and remain smokers..." University of Strathclyce, Glasgow (Hastings, Aitken, MacKintosh August 1991) ♦ The United States Public Health Service, in its national health objectives calls for the elimination or severe restriction of tobacco product advertising and promotion to which youths are likely to be exposed. ♦ Most of the American public strongly favor policies that might prevent tobacco use among young people. These policies include...restrictions on tobacco advertising," (US Surgeon General's report, 1994) Prepared April 1995 by the Contra Costa County Tobacco Prevention Project A 0 SOURCES TO CONTACT: Kevin Jordan - Community Organizer, Citizens Planning and Housing Association Baltimore - 410-539-1369 Julie Squire- Baltimore's attorney - 410-727-7702 Susan Weber - Chicago Attorney, author of legal analysis - 312-853-7820 Jeanne Weigen - Minnesota initiative - 612-646-3005 Robin Hobart -.Americans for Nonsmokers Rights - 841-3032 2: Frv`- ORDINANCE ORDINANCE PROHIBITING ADVERTISING OF TOBACCO PRODUCTS AND ALCOHOLIC BEVERAGES ON BILLBOARDS NEAR SCHOOLS. o I . BOARD OF SUPERVISORS CONTRA COSTA COUNTY MARCH 28, 1995 — 2: 00 P.M. s ' 6E G '� -- Contra ` TO: BOARD OF SUPERVISORS Y ;, Costa n. - °` County FROM: HARVEY E. BRAGDON ` DIRECTOR OF COMMUNITY DEVELOPMENTS _ •�a° DATE: March 28, 1995 SUBJECT: Ordinance Prohibiting Advertising of Tobacco Products and Alcoholic i Beverages on Billboards Near Schools. SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. Determine that the proposed Ordinance prohibiting advertising of tobacco products and alcohol beverages on billboards near schools is exempt from California Environmental Quality Act under Section 150612(b) (3) of the State CEQA Guidelines. >� r -2.s ;Approve the -Draft Ordinance-prohibiting advertising of-tobacco--: products and alcohol beverages on billboards near schools. 3. Introduce the Ordinance, waive reading and set a date for adoption. FISCAL IMPACT There will be unknown costs associated with the enforcement of this Ordinance. BACKGROUND/REASONS FOR RECOMMENDATIONS t 1 On January 24, 1995, the Board of Supervisors directed County -- Counsel to prepare a Draft Ordinance prohibiting advertisement of jalcoholic beverages or tobacco products on billboards within 2,000 feet of schools. On February 21, 1995, the County Planning Commission held a fully noticed public _hearing on the proposed Ordinance, took testimony and considered all of the information presented relative to the proposed Ordinance. Upon the close of the public hearing, the Commission discussed the matter and determined that the Board should approve the Draft:Ordinance. The Commission also recommended that the Board expand its efforts to encourage other jurisdictions to adopt similar ordinances, including -mobile 1 CONTINUED ON ATTACHMENT: B YES SIGNATURE, _ RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMI EE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER i VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTEREDONTHE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact:Dennis M. Barry 646-2091 ATTESTED cc: Community Development Department PHIL BATCHELOR, CLERK OF County Counsel THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR BY , DEPUTY DMB/df F Page Two advertising, such as advertising: on buses. The County Planning Commission further recommended that the Board of Supervisors direct staff to investigate the feasibility of modifying the Ordinance to increase the distance from schools and reduce the size of the signs regulated as much as possible, but indicated that adoption of the Ordinance should not be delayed for this purpose. a ti Resolution No.6-1995 RESOLUTION OF THE PLANNING COMMISSION OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, INCORPORATING FINDINGS AND RECOMMENDATIONS ON THE PROPOSED ORDINANCE PROHIBITING ADVERTISING OF TOBACCO PRODUCTS AND ALCOHOLIC BEVERAGES ON BILLBOARDS NEAR SCHOOLS ADDING ARTICLE #88-6-11 TO THE COUNTY ORDINANCE CODE. WHEREAS, on January 24, 1995, the Board of Supervisors directed County Counsel to prepare an ordinance prohibiting advertisement of alcoholic beverages and tobacco products on billboards within 2,000-ft., of schools; and WHEREAS, Government Code section 6585 requires that such -an ordinance be presented to the County Planning Commission for study and report to the Board of Supervisors; and WHEREAS, the draft ordinance enumerates the purpose and findings, definition, exemption, prohibition of advertising of same, removal of existing advertisements, abatement of illegal advertisements as well as severability; and WHEREAS, upon receipt of referral, the Community Development Department staff consulted with various cities within the County which already have such an ordinance in effect; and WHEREAS, the proposed ordinance us exempt from the provisions of the California Environmental Quality Act pursuant to CEQA Guideline Section 15061 (b) (3); therefore, no environmental study was made; and WHEREAS, after having completed a draft that would cover County objectives, a public hearing was noticed and scheduled before the County Planning Commission for Tuesday, February 21 , 1995, whereat all persons interested therein might appear and be heard; and WHEREAS, seven(7) persons appeared at said public hearing speaking strongly in favor of said proposed ordinance; and WHEREAS, no one appeared to speak in opposition to the draft; and WHEREAS, the County Planning Commission having fully reviewed, considered and evaluated all the testimony and evidence submitted in this matter; and NOW, THEREFORE, BE IT RESOLVED that the County Planning Commission recommends to the Board of Supervisors of the County of Contra Costa, State of .California, that this draft ordinance, which prohibits advertising of tobacco products and alcoholic beverages on billboards near schools be APPROVED; and i Resolution No.6-1995 BE IT FURTHER RESOLVED that the County Planning Commission recommends that the Board of Supervisors expand its efforts to encourage other jurisdictions within the County to adopt similar ordinances including mobile advertising such as advertising signs on busses; and BE IT FURTHER RESOLVED that the County Planning Commission recommends that the Board of Supervisors direct staff to investigate-.and report on the feasibility of. modifying the provisions of the ordinance to increase the distance from schools and reduce the size of signs regulated to the greatest extent practicable; and BE IT FURTHER RESOLVED that all written and graphic material developed for and pertaining to these proceedings are made a part of the record; and BE IT FURTHER RESOLVED that the Chairman and Secretary of this Commission will sign and attest the certified copy of this resolution and deliver the same to the Board of Supervisors all in accordance with the Government Code of the State of California. The instruction by the Planning Commission to prepare this resolution was given by motion of the Commission on Tuesday, February 21, 1995, by the following vote: AYES: Commissioners - Braxton, Clark, Gaddis, Hanecak, Straus, Wong, Terrell_. NOES: Commissioners - None. ABSENT: Commissioners - None. ABSTAIN: Commissioners - None. I, Marvin J. Terrell, Chairman of the Planning Commission of the County of Contra Costa, State of California, hereby certify that the foregoing was duly called and held in accordance with the law on Tuesday, March 7, 1995, and that this resolution was duly and regularly passed and adopted by the following vote of the Commission: AYES: Commissioners - CLARK, BRAXTON, WONG, STRAUS, GADDIS, HANECAK, TERRELL. NOES: Commissioners - NONE. t , Resolution No. 6-1995 ABSENT: Commissioners - NONE. ABSTAIN: Commissioners - NONE. Chairman of the Planning Commission, Contra Costa County, State of California. retar of he Planning Commission, Contra os a County, State of California. Steve Shinn , 3annett. Outdoor Co. 1695 Eastshore Highway Substance Abuse Advisory �3erkeley, CA 94710 Board-Health Services C/O Chuck Deutschman 597 Center Ave. Suite 320 Joyce White INTEROFFICE 548 So. 15th St. -- Richmond, t. =Richmond, CA94804 Youth Commission C / o supervisor / DeSAulnier's Office INTEROFFICE :ass Caulfield INTERO _ __. i Ll Francisca Drive 1 4oraga, CA 94566 Julie Freestone Tobacco Prevention c/o Envirn. Health Rich Hildebrand 597 Center Ave. ' 325 1695 Eastshore Highway INTEROFFICE Berkeley, CA 94710 Nancy Andrews 138 Fountainhead Ct. Martinez , CA 94553 ,isa Korpus '.444 Cherry Hills Drive Lafayette, CA 94549 Joel E. White MD,FACR -15 La Casa Via #102 lalnut Creek, CA 94598 Judith Van Brocklin '7 'Santa Barbara Road llea'sant Hill , CA 94523 fancy Charles _074 Shoreview Ct. ;ay Point, CA 94565 Julie Freestone 326 32nd Street Zichmond , CA 94804 Dave Jenne 433 LeJean Way Walnut Creek, CA 94596 CONTRA COSTA COUNTY COMMUNITY DEVELOPMENT DEPARTMENT i i TO: County Planning Commission DATE: February 13, 1995 FROM: Harvey E. Bragdon, Director��MA�' SUBJECT: Billboard Ordinance Regulating Alcohol-and-Tobacco:Advertising This is a County-initiated addition to the Zoning Ordinance intended to regulate the location of billboards which advertise tobacco products and alcoholic beverages. The Board of Supervisors is seeking the input of the County Planning Commission. Staff recommends that the Commission take public testimony and then provide the Board of Supervisors with their recommendations regarding the proposed ordinance modifications. MF/aa LTRVIII/Bill.MF COUNTY COUNSEL'S OFFICE9` C S CONTRA COSTA COUNTY SFF TA MARTINEZ, CALIFORNIA Date: February 2, 1995 r'CHT�Fp T To: Harvey E. Bragdon, Dir. of Community Development Attn: Mary Fleming, Assistant :Director From: Victor J. Westman, County Counsel By: Silvano B. Marchesi, Ass't County Counsel,',2 S--> " L Re: Ordinance Regulating Advertisement of Tobacco Products,and Alcoholic Beverages on Billboards On 24 January 1995, the.Board of Supervisors directed this office to prepare an ordinance prohibiting advertisement of alcoholic beverages and tobacco products on billboards within 2,000 feet of schools. We have previously furnished you with a copy of the first draft of such an ordinance. Attached is Draft No. 2, which reflects the comments of members of the Board. In our view, Government Code sections 65850 and 65853 probably require that such an ordinance be presented to the planning commission before consideration by the Board. It has been determined that we should do so directly, rather than wait for a referral by the Board. Therefore, we request that your department present the attached draft ordinance to the County Planning Commission as soon as possible for study and report to the Board of Supervisors, in accordance with the provisions of Government Code section 65853 et seq. Please keep the Substance Abuse Advisory Board, the Youth Commission, and all other interested parties advised on hearing dates. Attachment cc: Board of Supervisors Phil Batchelor, County Administrator Val Alexeeff, Director, GMEDA Jeanne Maglio, Chief Clerk of the Board of Supervisors Substance Abuse Advisory Board Youth Commission, c/o Supervisor DeSaulnier's Office a ' DRAFT NO. 2 ORDINANCE NO. 95- ORDINANCE PROHIBITING ADVERTISING OF TOBACCO PRODUCTS AND ALCOHOLIC BEVERAGES ON BILLBOARDS NEAR SCHOOLS 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): SECTION I. SUMMARY. This ordinance adds Article 88-6.11 to the County Ordinance Code to prohibit outdoor advertising of tobacco products and alcoholic beverages in the unincorporated area of the county on billboards near schools. SECTION II. Article 88-6.11 is added to the County Ordinance Code to read: Article 88-6.11 Billboards Advertising Tobacco Products and Alcoholic Beverages 88-6.1102 Purpose and Findings. The board of supervisors finds the following: (1) The county has a special responsibility to protect minors. (2) Most people develop their patterns of tobacco and alcohol use before becoming adults, at a time when they are impressionable and often incapable of making informed decisions. (3) The use,by minors of tobacco products and alcoholic beverages is dangerous because tobacco and alcohol can serve as "gateway drugs" to crack cocaine, marijuana, heroin, and other illegal drugs. (4) The county has strongly supported classroom education concerning the dangers of the use of all illegal drugs, but this message is undercut if there are advertisements near schools that encourage the use of tobacco products and the consumption of alcoholic beverages. (5) Many school districts in the county have endorsed restricting the advertising of tobacco products and alcoholic beverages near schools in order to avoid sending mixed messages to their students. (6) The City of Richmond's Anti-Drug Task Force and the Brookside Hospital Board of Directors, among others, strongly endorse a restriction on the advertising of tobacco products and alcoholic beverages near schools as a means to curb the illegal use of drugs by minors. (7) Accordingly, this board determines that the health, safety, and general welfare of the minors of the county could be benefitted by the regulation of advertising of tobacco products and alcoholic beverages on billboards near schools. 88-6.1104 Definition. "Billboard" means any outdoor advertising sign (as defined in this code) which is at least forty square feet in area. 88-6.1106 Exemption. This article shall not apply to a billboard that is an accessory sign, as defined in this code. 88-6.1108 Prohibition of Advertising of Tobacco Products and Alcoholic Beverages. No person, firm, corporation, partnership, or other organization shall permit any nonaccessory billboard advertising a tobacco product or an alcoholic beverage to be placed or located within 2,000 feet of any public or private elementary or secondary school within the unincorporated area of the county. 88-6.1110 Removal of Existing Advertisements of Tobacco Products and Alcoholic Beverages. Any advertisement on a billboard that advertises a tobacco product or an alcoholic beverage existing on the effective date of this article and that violates section 88- 6.1108 shall be removed within 90 days after said effective date; provided that, any person, firm, corporation, partnership or other organization having a valid contract for the placement of such advertisement shall be permitted to retain such advertisement until the contract is terminated or expires, so long as said contract was entered into and in effect as of January 1, 1995, and is not renewed or extended beyond its initial term. 3 . 88-6.1112 Abatement of Illegal Advertisements. Whenever the Community Development Director, or his or her designee, determines that a violation of section 88- 6.1108 exists, the Director may initiate the abatement procedures specified in the Uniform Public Nuisance Abatement Procedure (article 14-•6.4 of this code), or otherwise specified in this code. SECTION III. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The board of supervisors hereby declares that it would have passed the remainder of this ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, subdivision, paragraph, sentence, clause, or phrase. ORDINANCE NO. 95- 2 1 SECTION IV. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of the supervisors voting for and against it in the , a newspaper published in this County. PASSED ON by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: PHIL BATCHELOR, Clerk of the Board of Supervisors Board Chair and County Administrator By [SEAL] Deputy SBM (2/1/95) ORDINANCE NO. 95- 3 ` 3 9sFF9 �60 D� sl COUNTY COUNSEL'S OFFICE ` eFc �O Alf CONTRA COSTA COUNTY f�F/,y�r �r8 MARTINEZ, CALIFORNIA ✓J• Date: January 31, 1995 To: Board of S ervisors From: Victor J. Westman, County Counsel /� By: Silvano B. Marchesi,. Ass't County.CQunseLj ; Re: Ordinance Regulating Advertisement of Tobacco Products and Alcoholic Beverages on Billboards Enclosed is a draft of the Tobacco-Alcohol ordinance, and we provide the following comments. 1. We have tried to keep the ordinance as close as possible to the Richmond initiative measure. a) In § 88-6.1106 (p. 2), we have conformed the terms to existing terms in the County Ordinance Code (e.g., "outdoor advertising sign," "accessory sign"). b) In § 88-6.1108 (p.2), we have specified that the ordinance applies to the unincorporated area of the County. c) We have omitted the section relating to "Public Nuisance; Injunction," since the County Code already includes a provision with the same effect (Co. Ord. Code, § 14-6.204). d) In § 88-6.1110 (p. 2), we have left the "grandfather" date blank. It is not clear to us how the date in the initiative measure (1 January 1990) was selected, so we have left it to the discretion of the Board. e) In § 88-6.1112 (p. 2), we have shortened the abatement provision to an incorporation of the existing Uniform Public Nuisance Abatement Procedure in the County Code. This approach also eliminates the need for a section on a Hearing by the Board of Supervisors. f) We have eliminated the section allowing amendment upon a 4/5 vote of the Board. c Board of Supervisors January 31, 1995 Page 2 g) We also have prepared a red-lined draft of the ordinance. If any Board member would like to view that draft to compare the proposed ordinance with the Richmond initiative measure, please advise. 2. We have discussed this proposed ordinance briefly_with Community Development Department staff. As far as we know, that department has not had any recent occasion to conduct any inventory of existing 'outdoor advertising signs" in the unincorporated area near schools or that advertise tobacco products or alcoholic beverages. Thus, we are not aware of the number of any existing signs that would be covered by this ordinance. 3. Section 88-6.1110 (p. 2) appears to require the removal of the prohibited advertisements within 90 days after the effective date of the ordinance. We interpret this provision to require the removal only of the advertisement, and not the destruction of the billboard itself. If this is not the intent of the Board, please advise, so that we can clarify the language of this section. (See also, paragraph 4, below.) Also, we are unclear how this provision is to be reconciled with the grandfather clause that follows it. We assume that an existing prohibited advertisement can remain as long as it is covered by a contract that was in existence on the grandfather date and that has not been extended. 4. A number of cases have dealt with the issue of amortization periods, usually in connection with an ordinance that requires the removal of a prohibited sign. We have not seen any such amortization period (for removal of a sign) shorter than 20 months, and usually it extends over a period of five years or more. 5. Regarding the second recommendation in the Board Order of 24 January 1995, we will begin work on a separate ordinance to ban, prospectively, new billboards ("non-accessory signs") in the unincorporated area of the County. We will obtain comments and assistance from Community Development Department staff and present a draft for Board consideration in the near future. 6. The State Planning and Zoning Act provides that: a zoning ordinance that modifies a regulation pertaining to signs and billboards must be heard by the planning commission before it is considered by the Board of Supervisors. (Gov. Code, §§ 65853, 65850) While it is not completely clear whether these provisions apply to a regulation of the content of commercial billboards, as in this case, we recommend that the proposed ordinance be referred to the County Planning Commission for hearing in accordance with Government Code section 65853. • Board of Supervisors January 31, 1995 Page 3 6. By copy of this memo, we request the Clerk of the Board to schedule the proposed ordinance on the Board's agenda of 7 February 1995 for referral to the County Planning Commission . The Substance Abuse Advisory Board and the Youth Commission are advised of this item (unless rescheduled by the Board) pursuant to Recommendation (3) of the Board's Order of 24 January 1995. Attachments cc: Phil Batchelor, County Administrator Val Alexeeff, Director, GMEDA �rvey E. Bragdon, Director, Community Development Department Jeanne Maglio, Chief Clerk of the Board of Supervisors Substance Abuse Advisory Board, c/o Chuck Deutschman, Health Services Dept. Youth Commission, c/o Supervisor DeSaulnier's Office fi i V r CLEAN DRAFT NO. 1 ; z ORDINANCE NO. 95- ORDINANCE PROHIBITING ADVERTISING OF TOBACCO PRODUCTS AND ALCOHOLIC BEVERAGES ON BILLBOARDS NEAR SCHOOLS 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): SECTION I. SUMMARY. This ordinance adds Article 88-6.11 to the County Ordinance Code to prohibit outdoor advertising of tobacco products and alcoholic beverages in the unincorporated area of the county on billboards near schools. SECTION II. Article 88-6.11 is added to the County Ordinance Code to read: Article 88-6.11 Billboards Advertising Tobacco Products and Alcoholic Beverages 88-6.1102 Purpose and Findings. The board of supervisors finds the following: (1) The county has a special responsibility to protect minors. (2) Most people develop their patterns of tobacco and alcohol use before becoming adults, at a time when they are impressionable and often incapable of making informed decisions. (3) The use by minors of tobacco products and alcoholic beverages is dangerous because tobacco and alcohol can serve as "gateway drugs" to crack cocaine, marijuana, heroin, and other illegal drugs. (4) The county has strongly supported classroom education concerning the dangers of the use of all illegal drugs, but this message is undercut if there are advertisements near schools that encourage the use of tobacco products and the consumption of alcoholic beverages. (5) Many school districts in the county have endorsed restricting the advertising of tobacco products and alcoholic beverages near schools in order to avoid sending mixed messages to their students. (6) The City of Richmond's Anti-Drug Task Force and the Brookside Hospital Board of Directors, among others, strongly endorse a restriction on the advertising of tobacco products and alcoholic beverages near schools as a means to curb the illegal use of drugs by minors. f (7) Accordingly, this board determines that the health, safety, and general welfare of the minors of the county could be benefitted by the regulation of advertising of tobacco products and alcoholic beverages on billboards near schools. 88-6.1104 Definition. "Billboard" means any outdoor advertising sign (as defined in this code) which is at least forty square feet in area. 88-6.1106 Exemption. This article shall not apply to a billboard that is an accessory sign, as defined in this code. 88-6.1108 Prohibition of Advertising of Tobacco Products and Alcoholic Beverages. No person, firm, corporation, partnership, or other organization shall permit any nonaccessory billboard advertising a tobacco-product or an alcoholic beverage to be placed or located within 2,000 feet of any public or private elementary or secondary school within the unincorporated area of the county. 88-6.1110 Removal of Existing Advertisements of Tobacco Products and Alcoholic Beverages. Any advertisement on a billboard that advertises a tobacco product or an alcoholic beverage existing on the effective date of this article and that violates section 88- 6.1108 shall be removed within 90 days after said effective date; provided that, any person, firm, corporation, partnership or other organization having a valid contract for the placement of such advertisement shall be permitted to retain such advertisement until the contract is terminated or expires, so long as said contract was entered into and in effect as of and is not renewed or extended beyond its initial term. - 88-6.1112 Abatement of Illegal Advertisements. Whenever the Community Development Director, or his or her designee, determines that a violation of section 88- 6.1108 exists, the Director may initiate the abatement procedures specified in the Uniform Public Nuisance Abatement Procedure (article 14-6.4 of this code), or otherwise specified in this code. SECTION M. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this ordinance is for any reason held to be unconstitutional or invalid, such a decision shall not affect the validity of the remaining portions of this ordinance. The board of supervisors hereby declares that it would have passed the remainder of this ordinance irrespective of the unconstitutionality or invalidity of any section, subsection, subdivision, paragraph, sentence, clause, or phrase. SECTION IV. COMPENSATION. Current law does not require the county to pay compensation to any owner or advertiser affected by this ordinance. However, should the current law be changed or interpreted to require that compensation must be paid due to any provision of this ordinance, then such provision shall not be enforced. In the event that some provisions become unenforceable due to such chance or interpretation of the law to ORDINANCE NO. 95- 2 ' a y 7 require that compensation be paid, the other provisions that do not require under such change or interpretation that compensation be paid shall continue to be effective. SECTION V. NO EFFECT ON LEGAL OBLIGATIONS. Nothing in this ordinance shall alter or diminish any legal obligation otherwise required in common law or by statute or regulation. This ordinance shall be without prejudice to the enactment of ordinances to provide for additional regulation of billboards and outdoor advertising signs. SECTION VI. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage, and within 15 days of passage shall be published once with the names of the supervisors voting for and against it in the , a newspaper published in this County. PASSED ON by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: PHIL BATCHELOR, Clerk _ of the Board of Supervisors Board Chair and County Administrator By [SEAL] Deputy S13M (1/31/95) ORDINANCE NO. 95- 3