[HISTORY: Adopted by the Town Board of the Town of Southold 9-12-2000 by L.L. No. 18-2000. Amendments noted where applicable.]
The Town Board and the staff of the Town of Southold reviewed land use studies of the location of tobacco advertising in proximity to schools, parks and child day-care centers. In addition, the Town has examined the actions and codes of other municipalities, including the City of New York and the City of Long Beach.
The Town Board of the Town of Southold finds that restricting the exposure of minors to advertising regarding tobacco and tobacco products is constitutional when achieved through reasonable, targeted limitations on such advertising in the vicinity of schools and other locations where it is well-established that children tend to congregate. It is the intention of the Town Board to enhance and augment compliance with and enforcement of federal, state and local laws prohibiting the sale or distribution of tobacco products to minors, and to protect such minors against such illegal sales.
The Center for Disease Control and Prevention has reported that, while the rate of adult smoking of tobacco products has decreased nationwide by 50% between 1971 and 1993, the rate of smoking among all high school students has increased by 26% during the years 1991 and 1996 and now stands at the highest rate since 1981. It is further noted that this dramatic increase has occurred contrary to and at variance with the laws of all 50 states prohibiting sale and distribution of tobacco products to minors, and the pledge of all tobacco product manufacturers to adhere to a voluntary industry code prohibiting advertising of such products in a manner appealing to minors.
In 1991, a study of the Journal of the American Medical Association concluded that "...cigarette advertising encourages youth to smoke and should be banned." In 1994, a report of the National Institute of Medicine stated that "...the substantial convergent evidence that advertising and promotion, increase tobacco use by youth is impressive and ... provided a strong basis for legal regulation." In 1995, a report of the federal Center for Disease Control and Prevention found that "...cigarette marketing practices appeared to be the most likely account for [the] increase in teen smoking initiation rates."
In 1997, Liggett & Myers, Inc., a cigarette manufacturer, made the following acknowledgement in executing a settlement agreement with the Attorney Generals of 17 states, including the State of New York, "...Liggett acknowledges that the tobacco industry markets to 'youth,' which means those under 18 years of age...".
Based upon the preponderance of the evidence that tobacco products are advertised and promoted to minors, and that the rate of use of tobacco products by minors has drastically increased contrary to legislation prohibiting the sale or distribution of such products to minors, the Town Board of the Town of Southold hereby finds and declares it to be in the best interests of minors residing and/or otherwise present within the Town to enact affirmative, reasonable and constitutionally permissible restrictions on the advertising of tobacco products.
By enacting this legislation, it is the intent of the Town Board to promote compliance with and enforcement of federal, state and local laws prohibiting sale or distribution of tobacco products to minors, and therefore, in deference to the protections afforded by the First Amendment to the Constitution of the United States, this legislation has been narrowly drafted to place reasonable time, place and manner restrictions on such advertising in those locations where it is well-established that minors tend to congregate, while not imposing restrictions on such advertising clearly directed to adults.
Definitions. For the purposes of this chapter, the following terms shall have the meanings indicated herein, unless specifically indicated otherwise:
- (1) Includes the following:
- (a) Any child-care arrangement, public, private or parochial child-care center, school-age child-care program, day nursery school, kindergarten, play school or other similar school or service operating pursuant to authorization, license or permit of New York State.
- (b) Any facility that provides child-care services as defined in § 410-p of the New York State Social Services Law.
- (c) Any child day-care center as defined in § 390 of the New York State Social Services Law.
- (2) Said definition shall apply whether or not care is given for compensation, but shall not include child day-care centers located in private dwellings and multiple dwelling units.
- Includes the following:
- (1) Any roll of tobacco wrapped in paper or any other substance not containing tobacco.
- (2) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco contained therein or its packaging and labeling, is offered for use or purchase as cigarette as described in Subsection (1) of this definition.
- Includes active and passive public lands designated for park purposes by the Town of Southold, County of Suffolk, State of New York, United States of America or any other subdivision of government.
- Any natural person, partnership, copartnership, firm, company, corporation, limited liability corporation, association, joint-stock association or other legal entity.
- Includes buildings, structures, premises or places, together with the grounds thereof, which are used primarily for public or private educational facilities at or below the twelfth-grade level, as recognized and defined by the New York State Department of Education, including but not limited to preschools; kindergartens; nursery, elementary, primary, intermediate, junior high, middle, secondary, high, vocational and special.
- TOBACCO PRODUCT ADVERTISEMENT
- Includes any written word, picture, logo, symbol, motto, selling message, poster, placard, sign, photograph, device, graphic display or visual image of any kind, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of tobacco product, or any combination thereof, the purpose or effect of which is to promote the use, sale or distribution of a tobacco product through such means as, but not limited to, the identification of a brand of tobacco product, a trademark of a tobacco product or a trade name associated exclusively with a tobacco product.
Word usage. Words used in the singular in this chapter shall include the plural and vice versa. The word "shall" is always mandatory.
It shall be unlawful for any person to place, cause to be placed, maintain or cause to be maintained, a tobacco product advertisement in the following manner:
In any outdoor area within 1,000 feet, in any direction, of any child day-care center, park or school.
In the interior of a building or structure which is within 1,000 feet, in any direction, of any child day-care center, park or school when such advertisement is within five feet of any exterior window or any door which is used for entry to or egress from the building or structure by the public; except that such advertisements may be placed or maintained in the interior of any such premises where they are parallel to said windows or entryways and face inward, or affixed to a wall panel or similar fixture that is perpendicular to said windows or entryways.
Nothing in this chapter shall prevent a tobacco product manufacturer, distributor or retailer from placing, causing to be placed, maintaining or causing to be maintained, its corporate or other business name on such a building or structure, in any location, where such building or structure or a portion thereof is owned, operated or leased by them as their principal place of business; provided, however, that said corporate or other business name is properly registered or filed in the United States and/or they are duly authorized to do business in any state, and said corporate or business name does not include any tobacco product advertisement as defined in this chapter.
Nothing contained in this section shall be construed to authorize the placement of any sign, advertising device or tobacco product advertisement in any location where such placement is otherwise prohibited by the Code of the Town of Southold or other applicable law.
The owner, operator and/or lessee of any location or premises where tobacco product advertisement is prohibited or restricted pursuant to the requirements of this chapter shall have 30 days from the effective date of this chapter to remove any noncompliant tobacco product advertisements.
[Amended 1-16-2007 by L.L. No. 3-2007]
Any person in violation of any provision of this chapter is guilty of an offense punishable by a fine not to exceed $1,500 or a period of incarceration not to exceed 15 days, or both such fine and imprisonment.
If any clause, sentence, paragraph, subdivision, section or other part of this chapter shall for any reason be adjudged by any court of competent jurisdiction to be unconstitutional or otherwise invalid, such judgment shall not affect, impair or invalidate the remainder of this chapter, and it shall be construed to have been the legislative intent to enact this chapter without such unconstitutional or invalid parts therein.
This chapter shall take effect immediately upon filing in the office of the Secretary of State of New York.