[HISTORY: Adopted by the Common Council of the City of Buffalo 7-21-1998, effective 8-6-1998; amended in its entirety 10-18-2005, effective 10-28-2005. Subsequent amendments noted where applicable.]
The Common Council of the City of Buffalo hereby finds that certain alcohol product manufacturers have admitted engaging in strategies designed to advertise and promote products to minors and that such strategies undermine state law prohibiting the sale or distribution of alcohol products to minors. The Council further finds that exposure of minors to such alcohol product advertising and promotion may be constitutionally restricted through the enactment of reasonable targeted limitations on the advertising and promotion of such products near schools and other like locations regularly frequented by children so as to strengthen compliance with and enforcement of laws prohibiting the sale or distribution of alcohol products to children and protect children against such illegal sales.
The Council is cognizant of the necessity of acting within the protections afforded by the First Amendment to the United States Constitution and has, therefore, narrowly tailored the scope and effect of this legislation to impose reasonable time, place and manner restrictions on alcohol advertising aimed at or regularly seen by youth while not directly affecting advertising at adults.
It is well settled law that the First Amendment protects commercial speech but to a lesser degree than the protection afforded other, "fully protected speech." In analyzing the constitutionality of commercial speech regulation, the United States Supreme Court prescribed a four-prong test in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980). The Central Hudson test includes the following four prongs:
Whether the commercial speech at issue concerns a lawful activity and is not misleading;
Whether the asserted governmental interest in restricting the commercial speech is substantial;
The restriction must directly advance the governmental interest asserted; and
That the restrictions are not more extensive than are necessary to serve that governmental interest.
The restrictions on commercial speech contained in this Council legislation are permissible under the Central Hudson four-prong test. The commercial speech at issue concerns a lawful activity and is not misleading, at least as it applies to consenting adults. The governmental interest in restricting the commercial speech at issue is one grounded in the preexisting prohibition on the sale and distribution of alcohol products to minors and directly related to countering the adverse impact of an industry strategy admittedly directed at younger prospective drinkers. By restricting modes of advertisement and locations for advertisements that are more likely to be addressed to and seen by minors, this Council legislation directly advances the governmental interest in enforcing the ban on the sale and distribution of alcohol products to minors. Finally, as the restrictions in this Council legislation focus on modes and locations of communication that are more likely than not to have a direct impact upon minors, namely sites within 1,000 feet of a school, child day-care center, children's institution, youth center, playground or amusement arcade, the restrictions contained in this Council legislation are not more extensive than are necessary to serve the governmental interests asserted herein. Other forms of advertising, including newspapers, magazines, audio and video media, that are less likely to have a direct impact on minors are not affected by this Council legislation.
This chapter shall be known and may be cited as the "Youth Protection Against Alcohol Advertising and Promotion Act."
For the purpose of this chapter, the following terms shall be defined as follows:
- ALCOHOL OR ALCOHOL BEVERAGE
- Pursuant to New York State Alcoholic Beverage Control Law, ethyl alcohol, hydrated oxide of ethyl or spirit of wine from whatever source or by whatever processes produced. An alcoholic beverage includes alcohol, spirits, liquor, wine, beer, cider and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer, and capable of being consumed by a human being, and any warehouse receipt, certificate, contract or other document pertaining thereto; except that confectionery containing alcohol as provided by the New York State Agriculture and Markets Law § 200(12), shall not be regarded as an alcoholic beverage within the meaning of this section.
- A. The marketing, licensing, sale or distribution of items or services, or causing items or services to be marketed, licensed, sold or distributed, whether indoors or outdoors, which are not alcohol products but which bear the brand name, along or in conjunction with any word, logo, symbol, motto, selling, message, recognizable color or pattern or colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of alcohol product; or
- B. Offering or causing to be offered any gift or item other than an alcohol product to any person purchasing an alcohol product in consideration of the purchase thereof, or to any person in consideration of furnishing evidence, such as credits, proofs-of-purchase or coupons.
- AMUSEMENT ARCADE
- A building or place which provides entertainment by means of coin-controlled amusement devices and which contains four or more such devices.
- A. A "child day-care center" is:
- (1) Any public, private or parochial child-care center, school-age child-care program, day nursery school, kindergarten, play school or other similar school or service;
- (2) Any child-care arrangement licensed by the state;
- (3) Any facility that provides child-care services as defined in § 410-p of the New York State Social Services Law; and
- (4) Any child-care center as defined in § 319 of the New York State Social Services Law.
- B. The definition of "child day-care center" applies whether or not care is given for compensation but does not include child day care centers located in private residences and multiple-dwelling units.
- A. A "children's institution" is:
- (1) Any public, private or parochial congregate institution, group residence, group home or other place where, for compensation or otherwise, seven or more children under 21 years of age are received for day and night care apart from their parents or guardians;
- (2) Youth centers or facilities for detention as defined in §§ 527-a and 502 of the New York State Executive Law;
- (3) Group homes for children as defined in § 371 of the New York State Social Services Law;
- (4) Public institutions for children as defined in § 371 of the New York State Social Services Law; and
- (5) Residential treatment facilities for children and youth as defined in § 1.03 of the New York State Mental Hygiene Law.
- B. The term "children's institution" does not include children's institutions located in private residences and multiple-dwellings units.
- MULTIPLE-DWELLING UNIT
- Any unit of residential accommodation in a multiple dwelling containing the residence or home of three or more families living independent of each other.
- Any natural person, partnership, corporation, government agency, agency or other legal entity.
- An outdoor area open to the public where children play, which contains play equipment such as a sliding board, swing, jungle gym, sandbox or seesaw, or which is designated as a public play area, or which includes, but is not limited to, a baseball diamond or basketball courts.
- PRIVATE RESIDENCE
- Any building or structure designed and occupied for residential purposes by not more than two families, including the grounds of such building or structure.
- SCHOOL PREMISES
- The buildings, ground or facilities, or any portion thereof, owned, occupied by or under the custody or control of public, private or parochial institutions for the primary purpose of providing educational instruction to students at or below the twelfth grade level.
- YOUTH CENTER
- Any designated indoor public, private or parochial facility, other than a private residence or a multiple-dwelling unit, which contains programs which provide, on a regular basis, activities or services for persons who have not yet reached the age of 18 years, including but not limited to community-based programs, afterschool programs, weekend programs, violence prevention programs, leadership development programs, individual or group counseling, case management, remedial, tutorial or other education assistance or enrichment, music, art, dance and other recreational or cultural activities, physical fitness activities and sports programs.
It shall be unlawful for any person to place, cause to be placed or to maintain an alcohol advertisement in any publicly visible location on or within 1,000 feet of the perimeter of any school premises, playground or playground area in a public park.
It shall be unlawful for any person to place, cause to be placed or to maintain an alcohol advertisement in any publicly visible location on or within 1,000 feet of the perimeter of any child day-care center, children's institution, youth center or amusement arcade.
The owner, operator or lessee of any location or premises where an alcohol advertisement is prohibited or restricted pursuant to the requirements of this chapter shall have 30 days from the effective date of the ordinance that added this chapter to remove any noncompliant alcohol advertisements.
It shall be unlawful for any person to conduct an alcohol product promotion as defined in § 452-3 of this chapter on or within 1,000 feet of the perimeter of any school premises, playground, child day-care center, children's institution, youth center or amusement day-care center or amusement arcade; any manufacturer and distributor of imported alcohol products to conduct an alcohol product promotion as defined in this chapter at any location within the City; and any person to conduct an alcohol product promotion as defined in this chapter at any location within the City; provided, however, that this section shall not prohibit the distribution of coupons for alcohol products in conformance with Section 897.32 of Title 21 of the Code of Federal Regulations indoors, affixed to packaging of products sold to adults; or indoors or outdoors, in publications, including but not limited to newspapers, magazines or periodicals or other publications.
The City of Buffalo Bureau of Administrative Adjudication shall enforce the provisions of this chapter. Appeals of the determination of the Bureau of Administrative Adjudication shall be brought before the administrative appeals panel within the Bureau. The determination of such administrative appeals panel shall be the final determination of the Bureau for the purposes of review pursuant to Article 78 of the Civil Practice Law and Rules.
Any person found to be in violation of this chapter shall be liable for a civil penalty of not more than $300 for the first violation; not more than $500 for the second violation within a two-year period; and not more than $1,000 for the third and each subsequent violation within a two-year period.
A proceeding to recover any civil penalty authorized pursuant to Subsection A of this section shall be commenced by the service of a notice of violation, which shall be returnable to the Bureau of Administrative Adjudication. The Bureau of Administrative Adjudication shall have the power to impose the civil penalties prescribed by Subsection A of this section.
Whenever any person has engaged in any acts or practices which constitute a violation of any provision of this chapter or any rule promulgated thereunder, the City may make application to a court of competent jurisdiction for an order enjoining such acts or practices and for an order granting a temporary or permanent injunction, restraining order or other order enjoining such acts or practices.
Nothing in this chapter shall be construed to permit the placement of [tobacco] alcohol advertisements as defined by this chapter where such advertisements are prohibited by any other law or rule.
If any clause, sentence, paragraph, section or part of the chapter added by this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered.
This chapter shall be effective on the first day of the first month, which occurs 30 days after its adoption.