BILL NUMBER: AB 752	INTRODUCED
	BILL TEXT


INTRODUCED BY  Assembly Member Migden

                        FEBRUARY 26, 1997

   An act to amend Section 22958 of, and to add Section 22961 to, the
Business and Professions Code, relating to tobacco.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 752, as introduced, Migden.  Tobacco: advertising.
   Under existing law, a person, firm, or corporation may be subject
to criminal penalties for knowingly selling or giving away cigarettes
or tobacco products to a person who is under 18 years of age.
Existing law, the Stop Tobacco Access to Kids Enforcement Act or the
STAKE Act, among other things, requires the State Department of
Health Services to develop a program to reduce the availability of
tobacco products to persons under 18 years of age. The STAKE Act
requires that all persons engaging in the retail sale of tobacco
products check the identification of tobacco purchasers to determine
the purchaser's age if the purchaser appears to be under 18 years of
age.  The STAKE Act authorizes the department to assess civil
penalties in accordance with a prescribed schedule against any
person, firm, or corporation that sells tobacco products or other
controlled substances to persons who are under 18 years of age.
   This bill would prohibit any person, firm, corporation,
partnership, or other organization from advertising, or causing to be
advertised, tobacco products, on any outdoor billboard located
within 1,500 feet of any public or private elementary school, junior
high school, or high school and would provide that this prohibition
is a minimum standard and that local standards imposing a complete
ban on billboard advertising or any tobacco-related billboard
advertising would not be preempted by the prohibition and would
control in the event of a conflict.  The bill would also provide for
civil penalties to be assessed by the State Department of Health
Services for violations of these provisions, as specified.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  yes.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  The Legislature finds and declares all of the
following:
   (a) The state has a special responsibility to protect minors from
engaging in illegal activities.
   (b) The state has strongly supported classroom education
concerning the dangers of tobacco use, but this message is undercut
if there are advertisements near schools that encourage the use of
tobacco products.
   (c) Many school districts in California have endorsed restricting
the advertising of tobacco products and alcoholic beverages near
schools in order to avoid sending mixed messages to their students.
   (d) The United States Supreme Court has ruled that commercial
advertising may be regulated, provided the restrictions meet a
four-part test, including, but not limited to, whether the
advertising is deceptive and misleading.
   (e) Although the federal Cigarette Labeling and Advertising Act
(15 U.S.C.A. Sec. 1331 et seq.) preempts states and localities from
restricting advertising based upon public health considerations, it
does not prevent measures directed at the reduction of illegal
purchasing of tobacco by minors.
   (f) Accordingly, the Legislature hereby endorses a restriction on
the advertising of tobacco products near schools as a means to curb
the illegal use of tobacco by minors.
  SEC. 2.  Section 22958 of the Business and Professions Code is
amended to read:
   22958.  (a) The state department may assess civil penalties
against any person, firm, or corporation that sells, gives, or in any
way furnishes to another person who is under the age of 18 years,
any tobacco, cigarette, or cigarette papers, or any other instrument
or paraphernalia that is designed for the smoking or ingestion of
tobacco, products prepared from tobacco, or any controlled substance,
according to the following schedule:  (1) a civil penalty of from
two hundred dollars ($200) to three hundred dollars ($300) for the
first violation, (2) a civil penalty of from six hundred dollars
($600) to nine hundred dollars ($900) for the second violation within
a five-year period, (3) a civil penalty of from one thousand two
hundred dollars ($1,200) to one thousand eight hundred dollars
($1,800) for a third violation within a five-year period, (4) a civil
penalty of from three thousand dollars ($3,000) to four thousand
dollars ($4,000) for a fourth violation within a five-year period, or
(5) a civil penalty of from five thousand dollars ($5,000) to six
thousand dollars ($6,000) for a fifth or subsequent violation within
a five-year period.
   (b) The state department shall assess penalties in accordance with
the schedule set forth in subdivision (a) against any person, firm,
or corporation that sells, offers for sale, or distributes tobacco
products from a cigarette or tobacco products vending machine, or any
person, firm, or corporation that leases, furnishes, or services
these machines in violation of Section 22960.
   (c)  The state department shall assess penalties in accordance
with the schedule set forth in subdivision (a) against any person,
firm, or corporation that advertises or causes to be advertised any
tobacco product on any outdoor billboard in violation of Section
22961.
   (d)  If a civil penalty has been assessed pursuant to this
section against any person, firm, or corporation for a single,
specific violation of this division, the person, firm, or corporation
shall not be prosecuted under Section 308 of the Penal Code for a
violation based on the same facts or specific incident for which the
civil penalty was assessed.  If any person, firm, or corporation has
been prosecuted for a single, specific violation of Section 308 of
the Penal Code, the person, firm, or corporation shall not be
assessed a civil penalty under this section based on the same facts
or specific incident upon which the prosecution under Section 308 of
the Penal Code was based.  
   (d)  
   (e)  (1) In the case of a corporation or business with more
than one retail location, to determine the number of accumulated
violations for purposes of the penalty schedule set forth in
subdivision (a), violations of this division by one retail location
shall not be accumulated against other retail locations of that same
corporation or business.
   (2) In the case of a retail location that operates pursuant to a
franchise as defined in Section 20001 of the Business and Professions
Code, violations of this division accumulated and assessed against a
prior owner of a single franchise location shall not be accumulated
against a new owner of the same single franchise location for
purposes of the penalty schedule set forth in subdivision (a).

   (e)  
   (f)  Proceedings under this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code.
  SEC. 3.  Section 22961 is added to the Business and Professions
Code, to read:
   22961.  (a) No person, firm, corporation, partnership, or other
organization shall advertise or cause to be advertised any tobacco
products on any outdoor billboard located within 1,500 feet of any
public or private elementary school, junior high school, or high
school.
   (b) This section sets forth minimum state restrictions on the
advertisement of any tobacco products on outdoor billboards near
public schools and does not preempt or otherwise prohibit the
adoption of a local standard that imposes a complete ban on billboard
advertising or on tobacco-related billboard advertising.  A local
standard that imposes a complete ban on billboard advertising or on
tobacco-related billboard advertising shall control in the event of
any inconsistency between this section and a local standard.