[Added 4-18-2000 by L.L. No. 10-2000]
A.Â
Legislative intent and findings.
(1)Â
The Town Board and the staff of the Town of Babylon
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.
(2)Â
The Town Board of the Town of Babylon 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.
(3)Â
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.
(4)Â
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."
(5)Â
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...."
(6)Â
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 Babylon 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.
(7)Â
By enacting this legislation, it is the intent of
the Town Board to promote compliance with an 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 crafted 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.
B.Â
Definitions and word usage.
(1)Â
CHILD-CARE CENTER
(a)Â
(b)Â
(c)Â
CIGARETTE
(a)Â
(b)Â
DWELLING
(a)Â
(b)Â
(c)Â
PARK
PERSON
SCHOOL
TOBACCO
(a)Â
(b)Â
(c)Â
TOBACCO PRODUCT ADVERTISEMENT
Definitions. For the purposes of this article, 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 a cigarette as described in Subsection (a) 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 Babylon, 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 12th Grade level, as recognized
and defined by the New York State Department of Education, including
but not limited to preschool, 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 place 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.
(2)Â
Word usage. Words used in the singular in this article
shall include the plural and vice versa. The word "shall" is always
mandatory.
C.Â
Restrictions. 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:
(1)Â
In any outdoor area within 1,000 feet in any direction,
of any child day care center, park or school.
(2)Â
In the interior or 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 or egress to the
building or structure by the public; except that such advertisement
may be placed or maintained in the interior of any such premises where
it is 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.
D.Â
Exceptions.
(1)Â
Nothing is this section 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 a building or structure, in any location, where such
building or structure or a portion thereof is owned, operated or leased
by it as its principal place of business; provided, however, that
said corporate or other business name is properly registered or filed
in the United States and/or it is 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 section.
(2)Â
Nothing contained in this subsection 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 Babylon or other applicable
law.
E.Â
Compliance. 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 section shall have
30 days from the effective date of this article to remove any noncompliant
tobacco product advertisements.
F.Â
Injunctions. In addition to any other remedy provided
by law, the Town may bring an injunction proceeding to enforce this
article.
If any clause, sentence, paragraph, subdivision,
section or other part of this article 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 article, and it shall be construed to have been
the legislative intent to enact this article without such unconstitutional
or invalid parts therein.
This article shall take effect immediately upon
filing in the Office of the Secretary of State of New York.