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HomeMy WebLinkAbout99-06ORDINANCE NO. 99-06 ADDING CHAPTER 7-6 AND SECTION 32-98.9m TO THE DANVILLE MUNICIPAL CODE RELATING TO RESTRICTIONS ON TOBACCO ADVERTISING, PROMOTION AND LICENSING The Danville Town Council does ordain as follows: SECTION 1. PURPOSE. The purpose of this ordinance is to promote the welfare of minors in the Town of Danville by discouraging the commercial exploitation of potential underage tobacco users and by discouraging actions that promote the unlawful sale of tobacco products to minors as well as the unlawful purchase or possession of tobacco products by minors. SECTION 2. FINDINGS. The Danville Town Council makes the following findings in support of this ordinance: , e The United States Surgeon General has declared nicotine, a key ingredient of cigarettes and tobacco products, as addictive as cocaine or heroin; yet no other addictive product or drug is as accessible to minors or as heavily advertised and promoted to minors as tobacco products. Studies have shown that 88% of adults who have ever smoked tried their first cigarette by the age of 18, and the average age at which smokers try their first cigarette is 14 ½. A survey in the spring of 1996 found that the percentage of teenagers age 17 or younger who reported smoking during the month before taking the survey was 34.8%, up from 27.5% in 1991. Califomia State health officials reported in early 1997 that in Califomia there has been a 22% increase since 1993 in the number of 15 to 17-year-olds who are addicted to smoking. The Surgeon General has concluded that tobacco is often the first drug used by those young people who use alcohol, marijuana, and other drugs. Despite laws in every state making it illegal to sell tobacco to minors, each year over 947 million packs of cigarettes and 26 million containers of smokeless tobacco products are consumed by minors eight to 17 years of age. In 1991, in California alone, minors 12 to 18 years of age purchased over 29 million packs of cigarettes. There is specific and convincing evidence that tobacco advertising plays a significant role in stimulating illegal consumption of cigarettes by minors and multiple studies have shown that cigarette advertising results in increased demand. 10. 11o 12. 13. 14. 15. 17. Between 1993 and 1996, 34% of all adolescent experimentation with tobacco products in California was attributable to tobacco promotional activities. A recent longitudinal study of adolescents in Califomia provides clear evidence that tobacco industry advertising and promotional activities can influence "nonsusceptible never smokers" to start the process of becoming addicted to cigarettes. "Nonsusceptible never smokers" are defined as youth who would not consider experimenting with smoking at the beginning of the study. The U.S. Food and Drug Administration CFDA"), in issuing its final regulations on tobacco advertising, concluded that advertising plays a material role in the decision by minors to use tobacco products. The FDA also concluded that studies show that children are exposed to substantial and unavoidable advertising, that exposure to tobacco advertising leads to favorable beliefs about tobacco use, that advertising plays a role in leading young people to overestimate the prevalence of tobacco use, and that these factors are related to young people' s tobacco initiation and use. Since 1971, federal law has banned the advertising of tobacco products on radio and television, in part, because of substantial evidence showing that the most persuasive advertising was being conducted on radio and television, and these products were particularly effective in reaching a large audience of young people. State law prohibits the sale or furnishing of cigarettes or tobacco products to minors, as well as the purchase, receipt, or possession of tobacco products by minors (Penal Code Section 308). State law also prohibits public school students from smoking or using tobacco products while on campus or under the supervision or control of school district employees. Education Code Section 48901 (a). The Town of Danville and the San Ramon Valley Unified School District have worked cooperatively to enforce these provisions of state law. In addition, the Town has taken other steps to limit the availability of tobacco products to minors, such as limiting the location of tobacco vending machines to areas where minors may not be present. In spite of these ongoing efforts the problem of youth tobacco use continues to grow and the Town finds that additional regulation of tobacco advertising is necessary to supplement local policies previously enacted. An ordinance restricting the placement of advertisements for tobacco products in publicly visible locations within the Town of Danville is reasonable and necessary for the promotion of the safety and welfare of minors exposed to such advertisements. Publicly visible advertisements within 1,600 feet of schools, playgrounds and other areas which minors frequent, subject children to an involuntary and unavoidable form of solicitation to engage in an unlawful activity. Tobacco product advertising and promotion, that appeal to minors, undermine state and local laws prohibiting the sale or distribution of tobacco products to minors. The Town Council recognizes that First Amendment rights may be implicated by this regulation of tobacco advertising and promotion, a form of commercial speech. Nonetheless, the Town Council finds that the Town has a compelling interest in reducing illegal sales of tobacco products to minors and discouraging commercial exploitation of potential underage smokers. The ordinance does not ban all outdoor PAGE 2 OF ORDINANCE NO. 99-06 18. 19. 2O. 21, advertising of tobacco products. The ordinance only limits the locations of certain advertisements and not the content thereof. The ordinance only restricts the time, place and manner of certain advertisements and will not unduly burden legitimate business activities of persons authorized to sell tobacco products on a retail basis. Furthermore, the Town additionally believes that sufficient alternative mediums of communication (including without limitation, newspapers, magazines, direct mail, catalogs, radio, Internet) are available to promote tobacco products. Over 40 percent of grade school students who smoke, daily shoplifted cigarettes, at some time, from self-service displays. Sales to minors dropped 40 to 80 percent after enactment of ordinances requiring vendor-assisted sales. An estimated 7.4 million minors have participated in tobacco brand promotions and 30 percent of teenage smokers purchased a particular brand of cigarettes to obtain a free promotional item such as a T-shirt or a lighter. A 1997 Youth Tobacco Purchase Survey prepared for the California Department of Health Services found that statewide, retailers sold tobacco products to minors 21.7 percent of the time. A requirement that tobacco retailers obtain a tobacco retailer license as part of their annual business license will not unduly burden legitimate business activities of tobacco retailers. Requiring such a license will, however, allow the Town to better regulate tobacco sales to minors and allow for dissemination of educational materials regarding applicable federal, state and local laws pertaining to the sale of tobacco products to minors. SECTION 3. ADDING CHAPTER 7-6 TO THE DANVILLE MUNICIPAL CODE. Chapter 7-6 is hereby adopted and added to the Danville Municipal Code to read as follows: 7-6 TOBACCO ADVERTISING, PROMOTION AND LICENSING 7-6.1 Definitions. The following words and phrases, whenever used in this chapter, shall be construed as defined herein: "Advertising display sign" means any sign, billboard, signboard, poster, placard, pennant, banner, graphic display, mural, or similar device that is used to advertise or promote a product. "Mobile Billboard" means any sign, billboard, signboard, poster, placard or other advertising display upon or affixed to a vehicle which display is used to advertise a product illegal to sell to minors, when the supporting vehicle or trailer is parked within a public right of way or on private property and visible to the public for a duration of time and in a manner which clearly indicted that the sign is for advertising products illegal to sell to minors or which carry a specific brand name. logo. or indieia of a product illegal to sell to minors. For the purpose of this chapter, a mobile billboard shall not include any advertisements on the side of a van, truck, or other vehicle which is primarily used for the transportation of goods or products. PAGE 3 OF ORDINANCE NO. 99-06 "Person" means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or other legal entity. "Promote" or "Promotion" means a display of any logo, brand name, character, graphic, artwork, colors, scenes, or designs that are a recognized image of a particular product brand of tobacco that calls the public's attention to the product brand. "Publicly sidewalk, that is in sidewalk, visible location" means any outdoor location that is visible from any street, or other public thoroughfare, or any location inside a commercial establishment or immediately adjacent to a window or doorway and is visible from any street, or other public thoroughfare. "Tobacco product" means any substance containing any tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, and smokeless tobacco. "Tobacco Retailer" means any person who sells, offers for sale, or exchanges or offer to exchange for any form of consideration, tobacco products. "Tobacco retailing" shall mean the doing of any of these things. "Town Manager" means the Town Manager for the Town of Danville or his or her designee. 7-6.2 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 any tobacco products on an advertising display sign in a publicly visible location within 1,600 feet of the perimeter of an elementary or secondary school, public park or public playground. 7-6.3 Exceptions. The restrictions contained advertising or promotions for tobacco products: A. in Section 7-6.2 shall not apply to Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare. On vehicles, other than mobile billboards. On any sign located inside or immediately outside a commercial establishment if the sign provides notice that the establishment sells tobacco products, so long as the sign does not promote any brand of tobacco product. On tobacco product packaging. 7-6.4 Distribution or Sale of Tobacco-Related Promotional Items to Minors. No person may market, license, distribute, sell or cause to be marketed, licensed, distributed or sold any item or service to a minor, which bears the brand name, alone or in conjunction with, any other word, logo, symbol, motto, selling message, recognizable color or pattern of PAGE 4 OF ORDINANCE NO. 99-06 colors, or any other indicia or product identification identical with, or similar to, or identifiable with, those used for any brand of tobacco product. 7-6.5 Self-service Displays Prohibited. It shall be unlawful for any person to sell, permit to be sold, offer for sale, or display for sale, any tobacco product by means of self-service display, rack, counter top or shelf that allows self-service sales for any tobacco product other than vendor-assisted sales. 7-6.6 Vendor Assistance Required. All tobacco products shall be offered for sale exclusively by means of vendor assistance, with tobacco products kept in a locked case or in an area not accessible to the public, and requiring employee assistance to retrieve the tobacco products. 7-6.7 Tobacco Retailer License. It shall be unlawful for any person to sell or offer for sale any tobacco product without first obtaining and maintaining a valid tobacco retailer license for each location where such sales are conducted. This license shall be renewed annually. 7-6.8 License Application Procedure. A person who is required to obtain a tobacco retailer license pursuant to this chapter shall submit an application in the name of the person and shall be signed by the person with authority to act on behalf of the applicant. All applications shall be submitted on a form supplied by the Town and shall contain the following information: 1. The name, address and telephone number of the business owner and manager. 2. The business name, address and telephone number of each establishment where tobacco products are to be sold. 3. Such other information as the Town Manager determines is necessary to accomplish the purposes of this chapter. 7-6.9 Issuance and Display of License. Upon receipt of a completed application for a tobacco retailer license, including payment of the license fee, and the completion of an inspection of the premises, if deemed necessary by the Town Manager, to determine compliance with this chapter, the Town Manager shall issue a license. Each licensee shall prominently display the license at the location where tobacco product sales are conducted. 7-6.10 License Fee. The fee for a tobacco retailer license shall be set by the Town Council as part of the Town' s master fee schedule. The amount of any such fee shall be limited to the Town's costs for processing the application, inspecting the tobacco retailer business premises to determine compliance with the standards contained in this chapter and implementing the licensing program. 7-6.11 License not Transferable. A tobacco retailer license is not transferable. If there is a change in location, a new tobacco retailer license shall be issued for the new address upon receipt of an application for a change of location. The new license shall retain the same expiration date as the previous license. PAGE 5 OF ORDINANCE NO. 99-06 7-6.12 Suspension of License. A. A tobacco retailer license may be suspended by the Town Manager upon a finding, after notice and hearing, that a violation of this chapter, or any other applicable state or federal law governing the sale and distribution of tobacco, has occurred at the licensee's business premises. B. The Town Manager may suspend the licensee's license to sell tobacco products for up to sixty (60) days following the first finding of a violation. In the event of a finding of a second violation within twelve (12) months of the first violation, the Town Manager may suspend the license for up to 120 days. In the event of a finding of a third violation within twelve (12) months of the first violation, the Town Manager may suspend the license for up to one year. C. Any finding of violation and suspension of a license by the Town Manager may be appealed to the Town Council. Such appeal must be filed in writing within 10 days of receipt of the Town Manager's decision and must be accompanied by the applicable appeal fee established by the Town Council in the Town's master fee schedule. 7-6.13 Administration and Implementation. Except as otherwise provided, this chapter shall be administered by the Town Manager, who may develop administrative guidelines and procedures to implement the provisions of this chapter. 7-6.14 Violations. A. Any person violating any provision of this chapter shall be guilty of an infraction and shall be subject to penalties as set by state law. B. Violations of this chapter shall be deemed a public nuisance. 7-6.15 Intent as to Additional Legal Restrictions and Remedies. Nothing in this chapter is intended to alter the obligations or restrictions which apply to any person under any other law governing signs, tobacco advertising or any other matter covered by this chapter. The remedies set forth in this chapter are not exclusive. If any action prohibited by this chapter is also unlawful under any other law, the penalties and remedies under such other law may be pursued in addition to those provided in this chapter. 7-6.16 Disclaimer. The restrictions contained in this chapter with respect to the advertising, promotion and display of tobacco products are adopted by the Town of Danville to promote the general welfare of the Town's residents. The Town does not assume, nor is it imposing on its officers or employees, an obligation for which it may be liable in money damages to any person who claims that breach of those restrictions proximately caused injury, PAGE 6 OF ORDINANCE NO. 99-06 SECTION 4. ADDING SECTION 32-98.9m TOTHE DANVILLE MUNICIPAL CODE. A new Section 32-98.9m is hereby added to the Danville Municipal Code to read as follows: 32-98.9 Prohibited Signs. Use of the following signs is prohibited: m. No person shall place or maintain, or cause or allow to be placed or maintained, in any manner, any advertising or promotion of any tobacco products on an advertising display sign in a publicly visible location within 1,600 feet of the perimeter of an elementary or secondary school, public park or public playground, except for signs: i. Located inside a commercial establishment, unless such advertising display sign or promotion is attached to, affixed to, leaning against, or otherwise in contact with any window or door in such a manner that it is visible from a street, sidewalk or other public thoroughfare. ii. On vehicles, other than mobile billboards. iii. 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. iv. On tobacco product packaging. SECTION 5. CODIFICATION. Sections 3 and 4 of this ordinance shall be codi~ed in the Danville Municipal Code. SECTION 6. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Town Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases was declared invalid. SECTION 7. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have a summary of this ordinance published twice in a newspaper of general circulation, once within five (5) days before its adoption and once within 15 (fifteen) days after adoption. This ordinance shall become effective 30 days after adoption. PAGE 7 OF ORDINANCE NO. 99-06 The foregoing Ordinance was introduced on May 18, 1999 and approved and adopted by the Danville Town Council at a regular meeting held on June 1, 1999, by the following vote: AYES: Arnerich, NOES: None ABSTAIN: N6ne ABSENT: None Greenberg, Doyle, Shimansky, Waldo MAYOR APPROVED AS TO FORM: CITY ATTORNEY ATTEST: CITY CLERK CLERK'S CERTIFICATE I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is a true and accurate copy of Ordinance No. 99-06 of said Town and that said ordinance was published according to law. Dated: City Clerk of the Town of Danville PAGE 8 OF ORDINANCE NO. 99-06