[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.]
A.
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.
B.
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.
C.
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:
(1)
Whether the commercial speech at issue concerns a lawful activity
and is not misleading;
(2)
Whether the asserted governmental interest in restricting the commercial
speech is substantial;
(3)
The restriction must directly advance the governmental interest asserted;
and
(4)
That the restrictions are not more extensive than are necessary to
serve that governmental interest.
D.
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:
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.
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
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.
A building or place which provides entertainment by means
of coin-controlled amusement devices and which contains four or more
such devices.
A "child day-care center" is:
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;
Any child-care arrangement licensed by the state;
Any facility that provides child-care services as defined in
§ 410-p of the New York State Social Services Law; and
Any child-care center as defined in § 319 of the New
York State Social Services Law.
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 "children's institution" is:
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;
Youth centers or facilities for detention as defined in §§ 527-a
and 502 of the New York State Executive Law;
Group homes for children as defined in § 371 of the
New York State Social Services Law;
Public institutions for children as defined in § 371
of the New York State Social Services Law; and
Residential treatment facilities for children and youth as defined
in § 1.03 of the New York State Mental Hygiene Law.
The term "children's institution" does not include children's
institutions located in private residences and multiple-dwellings
units.
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.
Any building or structure designed and occupied for residential
purposes by not more than two families, including the grounds of such
building or structure.
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.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
