Local Licensing in California - Randy Kline by mrs77385


									  The STORE Campaign:
Local Licensing in California
  July 13th 2005 Technical Assistance Call

         Randy Kline, Staff Attorney
  TALC (Technical Assistance Legal Center)
   Youth Access: Problem Solved

 Good news:
  California has passed a law that reads:

    ―Every person who sells or gives or furnishes
    in any way to another who is in fact under the
    age of sixteen years, any tobacco, or
    preparation of tobacco, is guilty of a
    misdemeanor … .‖
Youth Access: Problem Solved?                (cont.)

 Bad news!
  That law took effect in 1891—Penal Code 308—
  but it apparently hasn’t solved the problem

 The law clearly makes youth access universally
  illegal—laws don’t come much simpler—so why
  are we still having to worry about kids and
Youth Access: Problem Solved?                                  (cont.)

 Why is PC 308 not effective?
  • Little or no enforcement
  • Preempts local regulation

 Why isn’t it enforced?
  • Resources needed outweigh the motive to expend them
     – Jury trial possible (misdemeanor):
         » Costs court, attorney, law enforcement too much time
     – Only the clerk is held responsible, so store doesn’t care
     – Penalty is weak: $200 fine
  Tobacco Retailer Licensing:
The Solution to Ineffective PC 308

    Key features motivating early local
    tobacco retailer licensing campaigns:
   Avoids preemption
   Holds the store responsible
   Increases the financial impact of selling to kids
    …Progressive thinking!
    Tobacco Retailer Licensing:
The Solution to Ineffective PC 308                        (cont.)

    A first wave of licensing laws were passed but were
    not enforced

   Still require expensive and unfunded law enforcement
   Still anticipate resource-intensive criminal prosecution
    of the clerk
   Do not clearly anticipate problems associated with fully
    implementing the licensing program
                 State Solutions?

   STAKE Act
    (Stop Tobacco Access to Kids Enforcement Act)
    •   Holds store accountable instead of clerk

   Statewide Tobacco Retailer Licensing
    •   One time fee of $100

   Neither solves the problem of youth access
        State Licensing Basics:
    The Revenue Protection Concept
   Require all retailers, distributors, and
    wholesalers to obtain a state license
   Require that licensed retailers, distributors, and
    wholesalers only deal with other licensed
    retailers, distributors, and wholesalers
   $$$ = Goal: reduce counterfeit and grey market
    products that avoid paying state tobacco taxes
        State Licensing Basics:
      Local Licensing Encouraged
   California Business & Professions Code:
    ―22971.3. Nothing in this division preempts or
    supersedes any local tobacco control law other
    than those related to the collection of state
    taxes. Local licensing laws may provide for
    the suspension or revocation of the local
    license for any violation of a state tobacco
    control law.‖
        Local Licensing Basics:
       The Public Health Concept
   1st, ban the sale of all tobacco because it is a
    highly addictive and dangerous product
   2nd, permit only certain retailers to sell tobacco:
    retailers who obtain a license and agree to hold
    themselves to a high standard of conduct
   3rd, Violating any tobacco law is misconduct and
    results in temporary revocation of a license
            Licensing Basics:
           Strong Enforcement

 Enforce all tobacco control laws with licensing

 Provide meaningful penalties for tobacco laws
  • Temporary revocation goes to the heart of the matter

 $$$ Fund enforcement with the license fee
  • Fee = cost of program / number of retailers
           Licensing Basics:
       Enforce All Tobacco Laws
 Violations of tobacco control laws are separate
  and independent violations of the licensing law

 A licensing penalty is in addition to the normal
  penalty for violating the underlying law

 Licensing penalties serve to compel compliance
  with laws that local agencies can not or will not
  enforce directly (e.g., no jurisdiction or too costly)
            Licensing Basics:
       Automatically Included Policies
 Licensing imports policies of all existing laws:
   •   No underage sales
   •   No self-service displays of most tobacco products
   •   No workplace smoking
   •   Federal warning labels
   •   No single-cigarette sales
   •   Etc.

 It is also a place to add effective tobacco policy
               Licensing Basics:
              Meaningful Penalties
 Hold the retailer responsible, not just the clerk
 Ban retailers from selling tobacco for a set period of time
  after a violation (more violations = longer period)
 Count all violations for at least the past five years
  (Note: it is legal to keep past violations on record forever)
 Provide for multiple, non-exclusive penalties:
    • license suspension
    • misdemeanor (or infraction)
    • public nuisance
 Clearly designate an enforcement agency … but also
  provide that multiple agencies can enforce the law
           Licensing Basics:
         Fund Enforcement $$$
 Annual license fee should be calculated to
  include administration costs and the full cost of
  monitoring and enforcing compliance

 Fee amount must be calculated using the unique
  cost structure of each individual community
  (e.g., cost per hour per officer, etc.)
     — there are no short cuts! (Sorry!)
         » But TALC has an EXCEL spreadsheet that can help
   That Was Then, This Is Now:
 The 2nd Wave of Local Licensing
Improvements based on the lessons learned from
       the first wave of licensing include:

 Big change: Licenses are always revoked,
  never suspended:
  • retailer may reapply for a license after a set ineligibility
    period (essentially a ―suspension‖ period)
 Retailers without a license can not display or
  advertise tobacco products or paraphernalia
  That Was Then, This Is Now:
The 2nd Wave of Local Licensing                                  (cont.)

 Ineligibility periods have been reduced in length
  compared to the previous suspension periods
  • For example, 10 day ―ineligibility period‖ for a first violation
    v. 30 day ―suspension period‖ for a first violation
 Definition of “Tobacco Product” expanded to
  include any form of new tobacco or nicotine product
  including so-called ―harm reduction‖ products
 New “Significant Tobacco Retailers” prohibited
  That Was Then, This Is Now:
The 2nd Wave of Local Licensing                   (cont.)

 All forms of self-service displays are banned
 Tobacco sales at restaurants and bars prohibited
 Financial penalty applies to renew lapsed license
 Prohibition on sham ownership transfers has been
 Must check the ID of anyone looking less than 27
 No person may sell tobacco under the age of 18
  That Was Then, This Is Now:
The 2nd Wave of Local Licensing                   (cont.)

 Smoking prohibited outside a tobacco retailer
 License violation to violate sign laws
 Minimum level of enforcement is explicitly set out
 Partial automatic immunity for youth decoys
 Youth decoys don’t have to testify
 “No contest” plea results in license revocation if
  plea is for a tobacco control law violation
  That Was Then, This Is Now:
The 2nd Wave of Local Licensing                         (cont.)

 Selling without a license results in longer
  ineligibility than having, but violating, a license
 Tobacco and paraphernalia can be seized and
  destroyed if offered for sale without a license
 City attorneys and county counsel have express
  authority to settle cases
   • Minimum standards for settlement are included
  That Was Then, This Is Now:
The 2nd Wave of Local Licensing                                   (cont.)

 Civil fines are emphasized over criminal prosecution
 Civil fines have been increased significantly

                     Big Advance:
 Ordinary citizens can enforce the licensing law
  in small claims court
   • Non-profit agencies can enforce the law (e.g., ALA)
   • Cities and counties can use small claims too!
      – No attorneys needed, staff can represent city or county
      – County health department can enforce within a city
              Licensing: Summary

 Basic licensing:
   * makes selling tobacco a privilege, not a right

 Licensing is
   (1) an improved enforcement tool
   (2) that can pay for itself

 TALC’s revised model licensing ordinance contains many
  improvements based upon lessons learned from the field
     TALC can help adopt our revised Model Licensing
       Ordinance to the needs of YOUR community

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