HomeMy WebLinkAbout08/19/2003, PH1 - LICENSURE OF TOBACCO RETAILERS 1_
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CITY OF SAN LUIS O B I S P O
FROM: Jonathan P. Lowell, City Attorney
Gilbert A. Trujillo, Assistant City Attorney
SUBJECT: LICENSURE OF TOBACCO RETAILERS
CAO RECOMMENDATION
1. Introduce for first reading by title only an Ordinance Adding Chapter 8.14 to the San
Luis Obispo Municipal Code Regarding the Licensure of Tobacco Retailers.
2. Adopt a Resolution amending the. Master Fee Schedule to include a tobacco retail
licensing fee in the amount of$255.00 per licensee per year.
DISCUSSION
Licensing Ordinance
On May 6, 2003, the City Council directed staff to prepare a tobacco-licensing ordinance. The
proposed ordinance would require each of the known forty-six (46) tobacco retail establishments
in the City to obtain a license to sell tobacco products. A fee would be imposed on the licensee
to cover the Police Department's enforcement costs as well as the City's administrative costs in
administrating the program. If a tobacco retailer sells to a minor, that retailer could face the
suspension and/or revocation of its license to sell tobacco products.
Many cities in California have adopted similar ordinances requiring the licensure of tobacco
retailers in order to ensure compliance with all federal, state and local laws regarding this
product. The following public entities have adopted tobacco retail licensing ordinances: Antioch,
Berkeley, Colma, Contra Costa County, Daly City, Danville, East Palo Alto, El Cerrito,
Lafayette, Los Angeles, Millbrae, Pinole, Pittsburg, Pleasant Hill, Rancho Mirage, Redwood
City, Richmond, San Carlos, San Mateo, San Mateo County, San Rafael, San Ramon and Walnut
Creek. These ordinances have not been directly tested in court to date, but appear to be an
appropriate mechanism for a city to enact to ensure, to the extent possible, that tobacco
distribution laws are followed, and to give the City an enforcement mechanism in cases where
they are not. A 2002 survey result taken by the San Luis Obispo County Tobacco Control
Program indicates that in the City of San Luis Obispo, 52% of retailers surveyed sold tobacco
products to minors, compared with 17.10% statewide, and lower percentages in other
neighboring cities. The City Attorney's office has researched the legality of a licensing ordinance
and recommends that the proposed ordinance be adopted.
The proposed ordinance is based upon the model ordinance developed by the Technical
Assistance Legal Center ("TALC") for the Public Health Institute. TALC is a project of the
Public Health Institute and provides assistance to California communities working to limit
I - I
Council Agenda Report—Licensure of Tobacco Retailers
Page 2
tobacco sales, marketing, and use through public policy development. The City of San Luis
Obispo has long been a leading advocate of tobacco safety and municipal regulation. This
ordinance would continue that effort, and allow the City to protect minors from the illegal sale of
tobacco products.
AB 71 (Horton)
Currently active in the Senate is AB 71. This legislation, if passed, would impose a statewide
licensing scheme for tobacco distributors, wholesalers and retailers to be administered by the
State Board of Equalization. This Bill is attempting to address the loss of tax revenue from the
illegal sale of tobacco products by organized crime syndicates, street gangs, and international
terrorist groups. AB 71 does not contain any pre-emption language, and it is not intended to
discourage illegal sales to minors. If passed, it may buttress arguments by retailers that the state
has fully occupied the field. However, in our opinion, AB 71 as currently written would not pre-
empt this Charter City's authority to adopt a licensing regulation.
Fee Resolution
Fees imposed by other jurisdictions for tobacco retail licensing range from $50.00 to $283.00 a
year. Section 8.14.070 of the proposed ordinance provides that the license fee shall be calculated
so as to recover the total cost, but no more than the total cost, of license administration and
enforcement, including, for example, but not limited to, issuing the license, administering the
license program, retailer education, retailer inspection and compliance checks, documentation of
violation, and prosecution of violators.
Penal Code section 308(a) prohibits the sale of tobacco products to a minor. Enforcement of
Penal Code section 308(a) would include undercover stings using minors as decoys. According
to the San Luis Obispo County Public Health Department, Tobacco Control Program, to be
effective the Police Department should conduct at least four (4) compliance checks each year.
Section 8.16.100 of the proposed ordinance mandates that the Police Department conduct at least
four (4) compliance checks each year. There are approximately forty-six (46) known tobacco
retailers in the City that would be subject to the ordinance. The Police Department estimates that
it will require approximately 128 hours of staff time to conduct four (4) compliance checks per
business each year at a cost of approximately $9,410.56. The Finance Department estimates that
it will require approximately 46.5 hours of staff time per year to administer the program at a cost
of approximately $2,320.40. The Police Department and Finance Department's calculations are
attached as Exhibit "A" to the Fee Resolution. Accordingly, the cost to the City to implement a
tobacco license fee program is calculated to be approximately $2.55.00 per licensee per year
($11,731.00 divided by 46).
Upon passage of this ordinance, the Finance Department will develop application and renewal
procedures to implement the ordinance.
1 -a.
Council Agenda Report—Licensure of Tobacco Retailers
Page 3
CONCURRENCES
The Police Department and Finance Department concur with this recommendation as well as do
staff from the County Tobacco Control Program.
Attachment No. 5 is an Executive Order issued by Governor Gray Davis on June 10, 2003, which
orders all state agencies to take all steps necessary to prevent the sales of tobacco products to
minors.
City staff solicited comments from the Chamber of Commerce and sent courtesy notices to the
estimated 46 businesses in the City that sell tobacco products. Thus far, staff has received
correspondence from one business owner, Richard Ferris, which is provided below as
Attachment No. 6.
FISCAL IMPACT
The proposed licensure ordinance would result in additional cost recovery to the Police
Department for"sting" operations to enforce Penal Code section 308(a).
ALTERNATIVES
There is no legal requirement that such an ordinance be adopted. The City Council may choose
not to introduce the ordinance.
ATTACHMENTS
1) Ordinance Adding Chapter 8.14 to the San Luis Obispo Municipal Code
2) Resolution Establishing Tobacco License Fee
3) November 16, 2002 Article from the Tribune on Smoking Sting.
4) Percent of Retailers Selling Tobacco to Minors — Source: San Luis Obispo County
Tobacco Control Program
5) Executive Order D-68-03 by the Governor of the State of California
6) Letter dated May 29, 2003 from Richard Ferris dba Cheap Thrills & Recycled Records
G:\Agenda-Ordinances-ResolltobaccoRetail Lic. agenda rpt.6-16-03.DOC
C -3
Attachment 1
ORDINANCE NO. (2003 Series)
AN ORDINANCE OF THE COUNCIL OF THE CITY OF SAN LUIS
OBISPO ADDING CHAPTER 8.14 TO THE SAN
LUIS OBISPO MUNICIPAL CODE PROVIDING FOR
THE LICENSURE OF TOBACCO RETAILERS
WHEREAS, State law prohibits the sale or furnishings of cigarettes, tobacco
products and smoking paraphernalia to minors, as well as the purchase, receipt, or
possession of tobacco products by minors (Penal Code § 308); and
WHEREAS, State law requires tobacco retailers to check the identification of
tobacco purchasers who reasonably appear to be under 18 years of age (Business &
Professions Code § 22956) and provides procedures for onsite sting inspections of
tobacco retailers using persons under 18 years of age (Business &Professions Code §
22952); and
WHEREAS, the results of the 2001 California Youth Tobacco Purchase Survey
revealed that 17.1% of retailers surveyed statewide sold tobacco products to minors;
however, the 2002 local youth purchase survey revealed that 52% of the retailers
surveyed in the City of San Luis Obispo sold tobacco products to minors; and
WHEREAS, the California courts in such cases as Cohen v. Board of Supervisors,
40 Cal. 3d 277 (1985) and Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4`h
383 (1993) have affirmed the power of the City to regulate business activity in order to
discourage violations of state law; and
WHEREAS, State law prohibits the sale or display of cigarettes through a self-
service display and prohibits public access to cigarettes without the assistance of a clerk
but permits the sale of tobacco products from certain vending machines (Business &
Professions Code § 22962); and
WHEREAS, the City of San Luis Obispo also prohibits the sale or display of
cigarettes through a self-service display in other than adult-only tobacco retail
establishments and prohibits public access to cigarettes without the assistance of a clerk;
and
WHEREAS, State law prohibits the sale of"bidis" (hand-rolled filterless
cigarettes imported primarily from India and some Southeast Asian countries) except in
adult-only establishments (Penal Code § 308.1); and
WHEREAS, State law prohibits the manufacture, distribution, or sale of
cigarettes in packages of less than 20 cigarettes and prohibits the manufacture,
distribution, or sale of"roll-your-own" tobacco in packages containing less than 0.60
ounces of tobacco (Penal Code § 308.3); and
I__`c
Ordinance No. (2003 Series) Attachment 1
Page 2
WHEREAS, State law prohibits public school students from smoking or using
tobacco products while on campus, while attending school-sponsored activities, or while
under the supervision or control of school district employees (Educ. Code § 48901(a));
and
WHEREAS, despite these restrictions, minors continue to obtain cigarettes and
other tobacco products at alarming rates. Each year, an estimated 924 million packs of
cigarettes are consumed by minors 12 to 17 years of age, yielding the tobacco industry
$480 million in profits from underage smokers (Joseph R. DiFranza, M.D. &John J.
Librett, M.P.H., State and Federal Revenues from Tobacco Consumed by Minors, 89
Am. J. Pub. Health 1106 (1999)); and
WHEREAS, eighty-eight percent 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
141/2; and
WHEREAS, a requirement for a tobacco retailer license will not unduly burden
legitimate business activities of retailers who sell or distribute cigarettes or other tobacco
products to adults. It will, however, allow the City to regulate the operation of lawful
businesses to discourage violations of federal, state, and local tobacco-related laws.
NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. Chapter 8.14 is hereby added to the San Luis Obispo Municipal
Code as follows:
Chapter 8.14
Sections:
8.14.010 Purpose
8.14.020 Definitions
8.14.030 Requirement For Tobacco Retailer License
8.14.040 Application Procedure
8.14.050 Issuance of License
8.14.060 Display of License
8.14.070 Fees For License
8.14.080 Licenses Nontransferable
8.14.090 License Compliance Monitoring
8.14.100 Suspension or Revocation Of A License
8.14.110 Appeal of Suspension And/Or Revocation
8.14.120 Administrative Fine/Penalties/Enforcement
8.14.130 Severability
i —�
i
Ordinance No. (2003-Series) Attachment 1
Page 3
8.14.010 Purpose
It is the intent of the City of San Luis Obispo, in enacting this Chapter, to
discourage violations of laws which prohibit or regulate the sale or distribution of
tobacco products to minors, but not to expand or reduce the degree to which the acts
regulated by state or federal law are criminally proscribed or to alter the penalty provided
therefore.
8.14.020 Definitions
The following words and phrases, whenever used in this Chapter, shall have the
meanings defined in this section unless the context clearly requires otherwise:
(a) "Person" means any natural person, partnership, cooperative association,
private corporation, personal representative, receiver, trustee, assignee, or any other
legal entity.
(b) "Proprietor" means a Person with an ownership or managerial interest in a
business. An ownership interest shall be deemed to exist when a Person has a ten percent
(10%) or greater interest in the stock, assets, or income of a business other
than the sole interest of security for debt. A managerial interest shall be deemed to exist
when a Person can or does have, or can or does share, ultimate control over the day-to-
day operations of a business.
(c) "Tobacco product" means any substance containing tobacco leaf,
including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco,
dipping tobacco, or any other preparation of tobacco, including Indian cigarettes called
"bidis."
(d) "Tobacco retailer" means any person who sells, offers for sale, or does or
offers to exchange for any form of consideration, tobacco, or tobacco products;"tobacco
retailing" shall mean the doing of any of these things.
(e) "Licensing Agent" means a City employee designated by the City
Administrative Officer to serve in this capacity.
(f) "Enforcement Agency" means the San Luis Obispo Police Department.
(g) "Hearing Officer" means the City employee designated by the City
Administrative Officer to serve in this capacity.
8.14.030 Requirement For Tobacco Retailer License
It shall be unlawful for any person to act as a tobacco retailer without first
obtaining and maintaining a valid tobacco retailer's license pursuant to this Chapter for
each location at which that activity is to occur.
Ordinance No. (2003 Series) Attachment 1
Page 4
No license will be issued to authorize tobacco retailing at other than a fixed
location; itinerant tobacco retailing and tobacco retailing from vehicles are prohibited.
No license will be issued to authorize tobacco retailing at any location that is
licensed under state law to serve alcoholic beverages for consumption on the premises
(e.g., an "on-sale" license issued by the California Department of Alcoholic Beverage
Control): tobacco retailing in bars and restaurants serving alcoholic beverages is
prohibited.
Licenses are valid for one (1) year and each tobacco retailer shall apply for the
renewal of his or her tobacco retailer's license prior to its expiration. The conference of a
tobacco retailer license does not confer any new rights under any other law and does not
exempt any business that otherwise would be subject to the smoke-free work place
provisions within the San Luis Obispo Municipal Code and Labor Code section 6404.5.
8.14.040 Application Procedure
(a) Application for a tobacco retailer's license shall be submitted to the Licensing
Agent in the name of each Proprietor/Person proposing to conduct retail tobacco sales
and shall be signed by such person or an authorized agent thereof. All applications shall
be submitted on a form supplied by the Licensing Agent and shall contain the following
information:
(1) The name, address, and telephone number of the applicant;
(2) The business name, address, and telephone number of each
location for which a tobacco retailer's license is sought:
(3) Such other information as the Licensing Agent deems necessary
for enforcement of this ordinance.
(4) Whether or not any Proprietor has previously been issued a license
pursuant to this Chapter that is, or was at any time, suspended or revoked and, if so, the
dates of the suspension period or the date of revocation.
8.14.050 Issuance of License
Upon the receipt of an application for a tobacco retailer's license, the Licensing
Agent shall issue a license unless substantial record evidence demonstrates one of the
following bases for denial:
(a) The application is incomplete or inaccurate; or
1 � �
Ordinance No. (2003 Series) Attachment 1
Page 5
(b) The application seeks authorization for tobacco retailing by a person or at
a location for which a suspension is in effect pursuant to Section 8.14.100 of this
Chapter; or
(c) The application seeks authorization for tobacco retailing in an area that is
in violation of City zoning pursuant to Title 17 of this Code or that is unlawful pursuant
to any other local, state, or federal law.
8.14.060 Display of License
Each license shall prominently display the license in a public place at each
location where tobacco retailing occurs.
8.14.070 Fees For License
The fee for a tobacco retailer's license shall be established by resolution of the
City Council of the City of San Luis Obispo. The fee shall be calculated so as to recover
the total cost,but no more than the total cost, of license administration and enforcement,
including, for example, but not limited to, issuing the license, administering the license
program, retailer education, retailer inspection and compliance checks, documentation of
violation, and prosecution of violators. The fee for tobacco retailer's license shall be paid
to the Licensing Agent.
8.14.080 Licenses Nontransferable
A tobacco retailer's license is nontransferable. For example, if a Proprietor to
whom a license has been issued changes business location, that Proprietor must apply for
a new license prior to acting as a Tobacco Retailer at the new location. Or if the business
is sold, the new owner must apply for a license for that location before acting as a
Tobacco Retailer.
8.14.090 License Compliance Monitoring
Compliance with this ordinance shall be monitored by the San Luis Obispo Police
Department. At least four compliance checks of each Tobacco Retailer shall be
conducted during each twelve-month period. The cost of compliance monitoring shall be
incorporated into the license fee.
8.14.100 Suspension or Revocation Of License
(a) In addition to any other penalty authorized by law, a Tobacco Retailer's
license may be suspended or revoked if the City finds, after notice to the licensee and
opportunity to be heard, that the licensee or his or her agents or employees has violated
the conditions of the license imposed pursuant to this Chapter.
I ��
1
Ordinance No. (2003 Series) Attachment 1
Page 6
(1) Upon a finding by the City of a first license violation within any
five-year period, the license shall be suspended for thirty (30) days.
(2) Upon a finding by the City of a second license violation within any
five-year period, the license shall be suspended for ninety (90) days.
(3) Upon a finding by the City of a third license violation within any
five-year period, the license shall be suspended for one (1) year.
(4) Upon a finding by the City of a fourth license violation within any
five-year period, the license shall be revoked.
(b) A Tobacco Retailer's license shall be canceled if the City finds, after
notice and opportunity to be heard, that one of the following conditions exist. The
revocation shall be without prejudice to the filing of a new application for a license.
(1) The application is incomplete for failure to provide the information
required by Section 8.14.040.
(2) The information contained in the application, including
supplemental information, if any, is found to be false in any material respect.
(3) The application seeks authorization for a license for tobacco
retailing that is unlawful.
8.14.110 Appeal of Suspension And/Or Revocation
(a) A decision of the City to revoke or suspend a license is appealable to a
Hearing Officer and must be filed with the Hearing Officer at least ten (10) working days
prior to the commencement date of the license suspension or revocation. An appeal shall
stay all proceedings in furtherance of the appealed action. Following appeal, the
decision of the Hearing Officer may be appealed to the City Administrative Officer or his
or her designee. A decision of the City Administrative Officer or his or her designee
shall be the final decision of the City.
(b) During a period of license suspension, the Tobacco Retailer must remove
from public view all tobacco products.
8.14.120 Administrative Fine/Penalties/Enforcement
(a) Any violation of the provisions of this Chapter by any person is a
misdemeanor and is punishable as provided in Chapter 1.12, Section 1.12.030 of this
Code. Any violation of the provisions of this Chapter by any person is also subject to
administrative fines as provided in Chapter 1.24 of this Code.
Ordinance No. (200 Series) Attachment 1
Page 7
(b) If the City of San Luis Obispo finds, based on substantial record
evidence, that any unlicensed person has engaged in tobacco retailing activities in
violation of Section 8.14.030 of this Chapter, the City shall fine that person as follows.
Each day that an unlicensed person offers tobacco, tobacco products or tobacco for sale
or exchange shall constitute a separate violation and assessed a fine in accordance with
Sections 1.12.080 and 1.24.070A. of this Code.
(c) Violations of this ordinance are hereby declared to be public nuisances.
(d) In addition to other remedies provided by this Chapter or by other law,
any violation of this ordinance may be remedied by a civil action brought by the City
Attorney, including but not limited to administrative or judicial nuisance abatement
proceedings, civil or criminal code enforcement proceedings, and suits for injunctive
relief. The remedies provided by this Chapter are cumulative and in addition to any other
remedies available at law or in equity.
8.14.130 Severability
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of
this Ordinance is for any reason held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the remaining sections,
subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance
or the rules adopted hereby. The City Council of the City of San Luis Obispo hereby
declares that it would have adopted each section, subsection, subdivision, paragraph,
sentence, clause or phrase hereof, irrespective of the fact that any one or more other
sections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared
invalid or unenforceable.
SECTION 2. A summary of this ordinance, together with the names of council
members voting for and against, shall be published at least five (5) days prior to its final
passage, in The Tribune, a newspaper published and circulated in this city. This
ordinance shall go into effect at the expiration of thirty days after its final passage.
(— l o
Ordinance No. (200 Series) Attachment 1
Page 8
INTRODUCED on the day of August, 2003, AND FINALLY ADOPTED
by the Council of the City of San Luis Obispo on the_day of 2003,
on the following roll call vote:
AYES:
NOES:
ABSENT:
David F. Romero
Mayor
ATTEST:
Lee Price
City Clerk
APPROVED AS TO FORM:
n n Lowell
City Attorney
Attachment 2
RESOLUTION NO. (2003 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
ESTABLISHING A RETAIL TOBACCO LICENSE FEE
WHEREAS, on August 19, 2003, the City Council of the City of San Luis Obispo
adopted for first reading Ordinance No. (2003 Series) providing for the licensure of
Tobacco Retailers in the City; and
WHEREAS, there are forty-six (46) known tobacco retailers in the City of San
Luis Obispo; and
WHEREAS, the Police Department will conduct four(4) "sting" operations a year
to enforce California Penal Code Section 308(a); and
WHEREAS, the Police Department will expend an estimated 128 hours a year
conducting enforcement activities at a cost of approximately$9,410.56 a year, as shown
in Exhibit "A" attached hereto and incorporated herein; and
WHEREAS, the Finance Department will expend an estimated 46.5 hours a year
administering the tobacco license fee program at a cost of approximately$2,320.40 a
year as shown in Exhibit "A" attached hereto and incorporated herein; and
WHEREAS, it is estimated that the cost to the City to implement the tobacco
license fee program is approximately$255.00 per licensee per year.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis
Obispo that:
SECTION 1. The Master Fee Schedule is hereby amended to include a yearly
retail tobacco license fee in the amount of$255.00.
SECTION 2. This Resolution shall become effective upon the effective date of
Ordinance No. (2003 Series).
Upon motion of , seconded by and on the
following roll call vote:
AYES:
NOES:
ABSENT:
.,
Attachment 2
Resolution No. (2003 Series)
Page 2
The foregoing resolution was adopted this_day of August, 2003.
Mayor David F. Romero
ATTEST:
Lee Price, City Clerk
APPROVED AS TO FORM:
n Lowell, City Attorney
� TOBACCO LICENSE FEE Exhibit A
Finance Administration Costs
Annual
Annual Billing Billing
Personnel Hours Rate Costs
1-Accounting Assistant 28.5 36.51 1,040.54
1-Supervisor 18 57.38 1,032.84
Other Operating Costs 247.02
Total 46.5 2;320.40
Police Department Tobacco
Enforcements
Four Deployments Annually---
8-hours per sting
Annual
Hours for Billing Billing
Personnel Responsibility 4-stings Rate Costs
3-Police Officers Work undercover sting 96 66.37 6,371.52
1-Police Sergeant Work undercover sting 32 94.97 3,039.04
Total 128 9,410.56
TOTAL ANNUAL ADMINISTRATIVE COST PER LICENSE: $255 ($11,731/46)
f - 1 �
n _Attachment 3
UNDERAOk PVRCIIASES
SLO sting nets 14 stores
• smoking g
YoUTH,16, IS ABLE TO GET TOBA,CCO ,OR PIPES MORE INSIDE
.3�
AT MORE THAN HALF OF TARGETtl?'SHOPS Who,got Caught:•A flit,
the offending stores Page ago;
SAN Luis OBISFO purchased tobacco or pipes at 14 of the
27 stores entered on the late after-
By JEFF BALLINGER noons of Nov.6 and.7, according to
THE TRistwit • Lloyd Henning,a health educator with quite easily."
More than half of the San Luis Obis- the Tobacco Control Program of San The operation's illegal tobacco
po stores involved In a tobacco sales Luis Obispo County4i3 Public Health sales rate of 52 percent was the
sting last week sold tobacco or pipes to Department , • • .1highest in recent memory, Henning
an underage teen. "It was quite a surprise," Henning said, and more than three times
Enlisted by the San Luis Obispo Po- said. "I couldn't believe it ...This 16-
lice Department. a 16-year-old youth year-old was able to pwchase tobacco I'lease see TOBACCO,A�0
Tobacco .
From Page Al a
higher than the state average ti�S tf �
of 17 percent. The city and ;$ rcpfS�r�6 i.r ` '
county agencies collaborated t� x 'Uttttl�lr�nj;:'i
on the sung. 1,.116 duel
Previous stings that San LuisI
Obispo police conducted with
the county agency recorded Me-
gal
e gal sales of 5 percent in 1999 and
none in 1997.
State law prohibits sales of to-
fe
bacco products and tobacco-re- t
lated items to anyone under the
age of 18.
Why was the rate so high this ,
time in San Luis Obispo?
"I can't really say," Henning
said.
He suggested a couple of pos-
sibilities, including a high.
turnover in sales clerks at ser-
vice stations and convenience
stores,causing some employees 5
to not get proper training about `
the tobacco law.
The sting ruled out one of the a
leading factors that increase the
likelihood of an Illegal tobacco oil sale:familiarity between a clerk _.
and an underage youth. Hen-
ning said the youth was from
outside the area.
He said the stings, and ensu-
ing publicity about them, help
get the word out and reduce U-
legal sales rates
Henning also said there is a
simple solution:
•A..W. ..(~arta end ehPArinn
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Exee,Order
Attachment 5
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Executive Order
EXECUTIVE DEPARTMENT
STATE OF CALIFORNIA
s;
EXECUTIVE ORDER D-6M3
by the
Governor of the State of Califomia
WHEREAS,per capita cigarette consumption in California has fallen by over 60 percent since the passage of the Tobacco
Tax and Health Promotion Act of 1988(Proposition 99),roughly twice the decline of the rest of the nation. Per capita
cigarette consumption in California is the lowest of any state in the nation;and
WHEREAS,smoking prevalence among youth in the 8th grade has decreased by 45 percent,from 11.7 percent in 2000
to 6.4 percent in 2002.Among 10th grade students,smoking decreased 24 percent,from 19.5 percent in 2000 to 14.8
percent in 2002;and
WHEREAS,there are still 4.7 million smokers in California;and
WHEREAS,tobacco use can lead to a lifelong,deadly addiction,killing 42,000 Californians annually.Every day an
estimated 200 youth,who are not old enough to legally purchase tobacco products,start smoking.Two-thirds of them will
become addicted and half of those will die prematurely from a tobacco-related illness;and
WHEREAS,over 80 percent of all adult smokers began smoking before their 18th birthday;and the younger smoking
starts the more difficult it is to quit;and
WHEREAS,nearly half of California youth ages 16-17,47.3 percent,report that it is still easy to buy tobacco;and
WHEREAS,although it has been illegal for more than 100 years to sell or provide anyone under the age of 18 with
tobacco products in California,an increasing number of retailers are selling tobacco to minors;and
WHEREAS,California law requires retailers to check the identification of anyone who appears to be under the age of 18
and to post required signs at every retail outlet that sells tobacco;and
NOW,THEREFORE, I,GRAY DAVIS,Governor of the State of California,by virtue of the power and authority vested in
me by the Constitution and statutes of the State ofCalifornia,do hereby issue this order to become effective immediately:
ITIS ORDERED that the Department of Health Services and the Department of Alcohol and Drug Programs immediately
focus the public awareness education efforts on reducing illegal sales of tobacco to minors;
IT IS FURTHER ORDERED that the Department of Health Services(DHS)immediately pursue legislation to:(1)increase
the penalties for selling tobacco to minors,violating other tobacco retail laws,and for failure to post the Stop Tobacco
Access to Kids Enforcement(STAKE)Act warning sign;and,(2)ensure local law enforcement has authority to enforce
the STAKE Act in local communities..
IT IS FURTHER ORDERED that all state agencies who inspect retail establishments that sell tobacco check for the
http://www:governor.ca.gov/state/govsite/gov_htmlprint._jsp?B V_SessionID-@ @ @ @047... 7/10/2003
.Exec Order
Attachment 5
presence of STAKE Act warning signs,and notify the DHS of violators.
IT IS FURTHER ORDERED that the Department of Alcoholic Beverage Control,when conducting alcohol enforcement
activities,monitor for compliance with the State tobacco laws;
IT IS FURTHER ORDERED that all state agencies that license,inspect or otherwise conduct business with retailers that
sell tobacco add information regarding the illegality of tobacco sales to minors,including the 1-800-5-ASK-41D complaint
line,to their websites,mailings to retailers,newsletters and other appropriate retailer communications;
IT IS FURTHER ORDERED that DHS and the Department of Alcohol and Drug Programs collaborate with the business,
retail and law enforcement communities to:
• Work with statewide retail associations to inform their members about the law that prohibits the sale of tobacco
products to minors and take steps to ensure that their members obey the law;
• Work with local law enforcement to actively reduce illegal sales of tobacco to minors;
I FURTHER DIRECT that as soon as hereafter possible,this order shall be filed with the Office of the Secretary of State
and that widespread publicity and notice be given to this order.
IN WITNESS WHEREOF 1 have hereunto set my hand and caused the Great Seal
of the State of California to be affixed this the tenth day of June 2003.
/s/Gray Davis
Governor of California
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Attachment 6
CHEAP 'THRILLS & RECYCLED RECORDS
May 29, 2003
To: Chief Deborah Linden
From: Richard W. Ferris
Dear Chief Linden,
I write you this letter regarding the tobacco ordinance currently being envisioned by the
City of San Luis Obispo, it's effectiveness and whether or not the department and the
Council are actually serious about making a difference in youthful smoking.
As I said at Council if we wish to send a message about smoking that there's only one
message that matters and that is, that it's not okay to light up in front of local police.
We were a leader in banning cigarette smoking from public places,why can't we be a
leader in prioritizing the enforcement issue among our youth?
Talking about sending a message to our youth by sticking it to retailers with a program
that accomplishes nothing except taxing us for enforcing existing State Law is insincere,
at best, and illegal, at worse.
If we truly wish to send a.message then its time to step up to the plate and show we care.
Indeed the message the youth receive from our Council and our police force is that
smoking is not a big deal, if it was it would be subject to the same type of scrutiny and
supervision as alcohol consumption is among our youth is. By this I mean,when an
officer sees a youth with an open container or buying alcohol he looks it as a priority
worth dealing with, this sends a message! However, with tobacco and cigarettes
smoking, it's the opposite, the message we are sending out with each and every action (or
inaction), is that cigarette smoking may be bad,but not bad enough to bother with the .
police force enforcing the law regarding underage smoking.
This is the message that is being sent out currently in our community.and; as far as.I
know, in all communities in California. If we want to send a message and lead in tobacco
reduction of youthful smoking then let's put tobacco on the enforcement plateau it
deserves. By this I mean let's make it at least a minor priority of the P.D.'to engage
smokers. When confronting an underage smoker the.Police could easily present them
with a choice of receiving a ticket(authorized by an appropriate SLO ordinance) or
merely tell the officer where they made the purchase. With the P.D. knowing where they
made the purchase, we do not need a sting;we can move directly to that retailer and do
what it takes to get them into compliance.
By taking direct action on the actual problem we are sending a real message about
smoking. We are also dealing with those that violate the law by selling to minors and we
712 Marsh Street(store):303 Higuera Street(office)San Luis Obispo,CA 93401 . r
(805)544-0686(store) (805) 543-3636(office) I
Attachment 6
are making it so minors don't feel it's okay to smoke. This would be an effective move
for the City of San Luis Obispo to take if it wished to be a leader in reducing smoking
among our youth.
Speaking of the ordinance you're envisioning, an ordinance that claims to be regulating
retailers when all it really is, is a tax on retailers to do endless sting operations which will
soon become unnecessary and unneeded.
If we were to apply the same standard as you are attempting to apply to tobacco retailers
to other retailers, then I suspect that we should have a tax applicable to car dealers and
auto parts store for the enforcement of the speed limit laws. I think we should certainly
have a tax on restaurants and food services to help fund medical careandyes,why not a
tax on every Cal Poly student to fund the police activities in regards to them. As you can
see, some of these taxes sound ludicrous on the face, yet they are no different than what
we intend to do with tobacco retailers in the City of San Luis Obispo. .Charging a tax or.
fee to do stings to enforce existing State law. The real shame of all of this is that it will
do little good, that couldn't be accomplished with much less.
Please remember that every random sting conducted in this County, prior to the most
recent one, showed no more than 5% of retailers out of compliance. It also seems that if
it's not important to do stings but every 2 to 3 years that mandating they be done four
times a year is overkill. Truly if we do stings quarterly, within a year or year and a half
the stings will be worthless. Everyone will be in compliance at the retail level and we
will be wasting our time with these stings. Still we probably would not have made any
significant difference to youthful smoking, since the message we're sending out is that
smoking is bad but not that bad.as it's not even worth the time of the police department to
enforce State laws regarding people under 18 smoking.
Please remember the only testimony during the whole Council hearing regarding the
effectiveness of licensing retailers was from a city that claimed to have a 75%non-
compliance rate after going through the process that you are thinking to embark upon
they achieved the exact same compliance rate that this city has historically had on every
sting operation except the last one (5%).
Speaking of the last sting operation, I never have heard confirmed or denied that this last
operation was not a random sting but a focused sting on known offending retailers. This
truly is the most effective policy; go after those who are the problem. However, when we
take a sting that is targeted toward the problem retailers and then pretends it's a random
sting then we're comparing apples to oranges, if this is the basis for taxing retailers, it is
closer to fraud than to legitimate. It would be very informative and honest to hear at
Council or perhaps in response to this letter,whether or not that was a random sting or
whether it was an intelligently done,professional done sting of the people who needed
`stinging'.
I hope you'll pay some attention to these words instead of just doing the politically easy
but ineffective act of passing a(illegal?) tax on tobacco retailers. Sending a token
I
Attachment 6
message in place of the real message and the real action that would achieve the kind of
results that we all say we want.
Thank you for your time in reading this letter. I'm hopeful that we can do something
besides what is being proposed.
Sincerely,
v
Rich ems
32-year retailer in the City of San Luis Obispo
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