[HISTORY: Adopted by the Town Board of the Town of Southold 9-12-2000
by L.L. No. 18-2000. Amendments noted where applicable.]
A.
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.
B.
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.
C.
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.
D.
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."
E.
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...".
F.
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.
G.
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.
A.
CHILD-CARE CENTER
(1)
(a)
(b)
(c)
(2)
CIGARETTE
(1)
(2)
DWELLING
(1)
(2)
(3)
PARK
PERSON
SCHOOL
TOBACCO
(1)
(2)
(3)
TOBACCO PRODUCT ADVERTISEMENT
Definitions. For the purposes of this chapter, the following
terms shall have the meanings indicated herein, unless specifically indicated
otherwise:
Includes the following:
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.
Any facility that provides child-care services as defined in § 410-p
of the New York State Social Services Law.
Any child day-care center as defined in § 390 of the New York
State Social Services Law.
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:
Any roll of tobacco wrapped in paper or any other substance not containing
tobacco.
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 the following:
MULTIPLE DWELLINGAny building or group of buildings designed for or occupied exclusively by three or more families living independently of each other.
MULTIPLE DWELLING UNITAny separated, independent unit of residential accommodation in a multiple dwelling.
PRIVATE DWELLINGAny building or structure or portion thereof that may lawfully be occupied for residential purposes by not more than two families, including the grounds of such building or structure.
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.
Includes the following:
CIGARETTE TOBACCOLoose tobacco intended for use in what is commonly advertised as a cigarette.
SMOKELESS TOBACCOIncludes any cut, ground, powdered or leaf tobacco that is intended to be placed in a person's oral cavity.
TOBACCO PRODUCTIncludes a cigarette, smokeless tobacco or cigarette tobacco.
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.
B.
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:
A.
In any outdoor area within 1,000 feet, in any direction,
of any child day-care center, park or school.
B.
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.
A.
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.
B.
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.
