BILL ANALYSIS �
AB 1301
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1301 (Hill)
As Amended August 9, 2012
Majority vote
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|ASSEMBLY: |61-15|(May 31, 2011) |SENATE: |32-5 |(August 20, |
| | | | | |2012) |
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Original Committee Reference: G.O.
SUMMARY : Repeals and recasts the Board of Equalization's (BOE)
existing penalty structure for violations of the Stop Tobacco
Access to Kids Enforcement (STAKE) Act, a statewide enforcement
program related to the illegal sales of tobacco products to
persons under the age of 18. Specifically, this bill :
The Senate amendments :
1)Require the Department of Public Health (DPH) to notify BOE of
the third, fourth, or fifth violations it assesses against a
person, firm or corporation that furnishes tobacco products or
instruments to minors within 60 days of an uncontested
violation or payment of the civil penalty for an uncontested
violation. Requires DPH to provide BOE with unspecified
information about the entity receiving the violation.
2)Repeal BOE's existing penalty structure for the STAKE Act and
Penal Code Section 308 and instead requires BOE to levy an
additional $250 civil penalty on an entity receiving a
violation from DPH to be deposited into a specified fund.
3)Delete the Assembly's revised schedule for BOE action in
response to a violation of the STAKE Act, and instead requires
BOE to suspend or revoke the entity's license in the following
manner:
a) A 45-day suspension for a third violation at the same
location within five years,
b) A 90-day suspension for a fourth violation at the same
location within five years, and,
c) Revocation of the license for a fifth violation at the
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same location within five years.
4)Repeals existing law that allows a licensee to appeal a BOE
decision to suspend or revoke a license in writing within 30
days after the notice of the suspension or revocation.
5)Requires BOE to provide a licensee with at least 10 days
written notice of a pending suspension or revocation, except
where specified, and an opportunity to appeal the suspension
or revocation and the civil penalty, but only for the purpose
of correcting a mistake or clerical error.
6)Repeals existing law stipulating that convictions of
violations by a retailer at one retail location cannot be
accumulated against other locations of that same retailer.
7)Repeals existing law stipulating that convictions of
violations accumulated against a prior retail owner at a
licensed location cannot be accumulated against a new retail
owner at the same location.
8)Prohibits the BOE from considering violations that occurred
prior to January 1, 2013.
EXISTING LAW :
1)Requires states to enact and enforce laws that prohibit the
sale of cigarettes and tobacco products to minors under the
age of 18.
2)Makes it a misdemeanor, subject to civil action and fines, any
individual who knowingly or under circumstances furnishes,
gives, or sells cigarettes or tobacco products to minors under
the age of 18.
3)Requires, according to the California Cigarette and Tobacco
Licensing Act of 2003 (Licensing Act), a retailer to obtain a
license from BOE to engage in the sale of cigarette and
tobacco products in California.
4)Establishes, through the STAKE Act, various requirements for
retailers relating to tobacco sales to minors. Specifically:
a) Prevents retailers from selling cigarettes and tobacco
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products to minors under the age of 18 and requires that
retailers check identification of individuals trying to buy
cigarettes and tobacco products who appear under the age of
18;
b) Increases civil penalties and expands the number of
agencies that are permitted to carry out investigations of
illegal tobacco sales to minors from the State Department
of Public Health (DPH) to include the Attorney General and
other state and local agencies;
c) Makes certain violations of the STAKE Act a criminal
offense;
d) Requires DPH to take primary responsibility for
enforcement of the STAKE Act and requires DPH to conduct
random, onsite inspections of retail sites;
e) Requires DPH to enlist the assistance of persons who are
15 or 16 years of age for this purpose and requires the DPH
to adopt and publish guidelines for the use of minors in
inspections, as specified; and,
f) Permits DPH to enter into an agreement with a local law
enforcement agency for delegation of enforcement of the
STAKE Act.
1)Makes it a misdemeanor (Penal Code Section 308) for a retailer
to knowingly or under circumstances in which it has knowledge,
or should otherwise have grounds for knowledge, sell, give, or
in any way furnish a minor with tobacco products or
paraphernalia.
2)Violations of the STAKE Act or Penal Code Section 308 result
in BOE action, on a set schedule, relating to the licensure of
the retailer when the youth purchase survey finds that 13% or
more of youth are able to purchase cigarettes, and makes BOE's
authority inoperative when a youth purchase survey shows less
than 13% of youth were able to purchase cigarettes.
3)Provides that for the first conviction of a violation of the
STAKE Act or Penal Code Section 308, the retailer receives a
warning letter, as specified. For the second conviction of a
violation in 12 months, the retailer is subject to a fine of
$500. For the third conviction of a violation in 12 months,
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the retailer is subject to a fine of $1,000. For the fourth
to seventh conviction of a violation, inclusive, in 12 months,
the retailer's license to sell cigarettes and tobacco products
is suspended for 90 days. For the eighth conviction of a
violation in 24 months, the retailer's license is revoked.
4)Existing law provides for a 30-day appeal of BOE's decision.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose the bill : This bill is intended to hold retailers more
accountable for repeated violations of the STAKE Act or Penal
Code Section 308, by requiring the BOE to take further action
against a retailer's license that engage in the sale of
cigarettes or tobacco products in this state. This bill would
revise the schedule for BOE action in response to the occurrence
of the violation, as specified.
This bill is needed to reduce the availability and accessibility
of tobacco products for minors. Despite existing laws that
prohibit the sale of tobacco products to minors and media
efforts aimed at deglamorizing tobacco use, children are still
sold tobacco products by a variety of retailers and commercials
are marketed increasingly to younger audiences.
According to the author, the penalty provisions, under the
Licensing Act have only been utilized twice because Business and
Professions Code (BPC) Section 22974.8 (d) contains a "trigger"
making the penalty provisions inoperative if the Department of
Public Health's (DPH) annual youth purchase survey finds that
less than 13% of youth were able to purchase tobacco products.
In recent years the youth purchase survey has been around 10%.
In addition, during the periods of operation, BOE did not
receive any conviction information.
The author maintains, however, the DPH survey results can be
deceiving since rates of sales to minors in STAKE Act
inspections have been around 17% or higher. According to data
from the San Mateo County Tobacco Education Coalition, 25% of
stores in San Mateo County sold tobacco to a minor decoy between
2005-2010.
According to the United States Centers for Disease Control and
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Prevention (CDCP), almost 90% of adults who are regular smokers
started at or before age 19. A 2009 CDCP survey found that more
than one out of four high school students were current tobacco
users. Smoking-related diseases remain the leading cause of
preventable death in the United States, claiming the lives of
438,000 Americans annually.
According to the State Department of Public Health's California
Tobacco Control Program survey, 74% of youth access enforcement
agencies reported issuing warnings to merchants selling tobacco
products to minors in 2006. The California Tobacco Control
Program survey also found that law enforcement agencies
continued to rank the suspension or revocation of licenses and
civil and criminal penalties for owners and clerks, as effective
strategies to reduce youth access to tobacco.
The author states, the "trigger" provision in the Licensing Act
prevents the state license penalties from becoming operative for
any length of time. This bill will allow BOE to start using the
Licensing Act so all retailers who sell tobacco products to
minors can be held accountable for their adverse actions while
having to endure a more stringent penalty upon a violation of
the STAKE Act or Penal Code Section 308, as defined.
Background : According to the United States Department of Health
and Human Services (DHS), approximately 80% of adult smokers
began smoking before the age of 18. Youth smoking is associated
with greater likelihood of adult smoking, heavier use of
cigarettes, and more difficulty in quitting.
According to the DHS, with the passage of Proposition 99 in 1988
and the enactment of subsequent legislation throughout the
1990s, California has mounted the largest and most comprehensive
anti-smoking campaign in the United States. DHS states that
California's campaign sets the standard for the rest of the
nation and the world, setting a goal of changing public
perception of tobacco use and emphasizing local interventions,
regional coalitions, media, research, and evaluation. The
campaign has focused on four key areas: countering pro-tobacco
influences; protecting youth and adults from secondhand smoke;
reducing the availability of tobacco products to youth; and,
providing support for quitting tobacco use. Since the passage
of Proposition 99, adult smoking prevalence dropped by more than
30% and per-capita cigarette consumption in California fell by
more than 50%.
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Synar Amendment and the STAKE Act : In 1992, Congress passed the
Synar Amendment, which requires states to pass and enforce laws
that prohibit the sale of tobacco to minors. It also requires
that federal alcohol and substance abuse block grant funding be
applied to enforcing state law in a manner that can reasonably
be expected to reduce the illegal sales rate of tobacco products
to minors. Up to 40% of the block grant funding can be withheld
from states for not complying with the Synar Amendment.
SB 1927 (Hayden) Chapter 1009, Statutes of 1994, enacted the
STAKE Act to address the increase in tobacco sales to minors in
California and fulfill the federal mandate. Authority for
enforcement and responsibility for implementation of the Act was
delegated to the then-State Department of Health Services' Food
and Drug Branch, which is required to:
1)Implement the program to reduce the illegal sale of tobacco
products to minors and to conduct sting operations using 15
and 16 year old minors;
2)Operate a toll-free number for the public to report illegal
tobacco sales to minors;
3)Ensure that tobacco retailers post signs, which include the
toll-free number, to report violations;
4)Ensure that clerks check the identification of
youthful-appearing persons prior to a sale;
5)Assess civil penalties ranging from $200 to $6,000 against
store owners for violations; and,
6)Comply with the Synar Amendment and prepare an annual report
for the federal government, state Legislature, and the
Governor regarding enforcement activities and their
effectiveness.
Penal Code Section 308 : Penal Code Section 308 prohibits every
person, firm, or corporation which knowingly or under
circumstances in which it has knowledge, or should otherwise
have grounds for knowledge, from selling, giving, or in any way
furnishing to another person who is under the age of 18 years:
Any tobacco, cigarette, or cigarette papers, or blunt wraps, or
any other preparation of tobacco, or any other instrument or
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paraphernalia that is designed for the smoking or ingestion of
tobacco, products prepared from tobacco, or any controlled
substance.
Any person failing to comply is subject to criminal action for a
misdemeanor or to a civil action brought by a city attorney, a
county counsel, or a district attorney, punishable by a fine of
$200 for the first offense, $500 for the second offense, and
$1,000 for the third offense.
Section 308 also requires every person, firm, or corporation
which sells, or deals in tobacco or any preparation thereof, to
post conspicuously and keep posted at each point of purchase a
notice that states, in part, selling tobacco products to anyone
under 18 years of age is illegal.
Cigarette and Tobacco Products Licensing Act of 2003 : The
Licensing Act requires the BOE to take action against a retailer
convicted of a violation of either the STAKE Act or Penal Code
Section 308, according to the following schedule:
1)Upon the first conviction of a violation, the retailer
receives a warning letter from the BOE that delineates the
circumstances under which a retailer's license may by
suspended or revoked and the amount of time the license may be
suspended or revoked. The retailer and its employees are
required to receive training on tobacco control laws from DPH
upon a first conviction.
2)Upon the second conviction of a violation within 12 months,
the retailer is subject to a fine of $500.
3)Upon the third conviction of a violation within 12 months, the
retailer is subject to a fine of $1,000.
4)Upon the fourth to the seventh conviction of a violation
within 12 months, the BOE is required to suspend the
retailer's license to sell cigarette and tobacco products for
90 days.
5)Upon the eighth conviction of a violation within 24 months,
the BOE is required to revoke the retailer's license to sell
cigarette and tobacco products. Convictions of violations by
a retailer at one retail location are not accumulated against
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other locations of that same retailer.
This provision becomes operative on the date results from the
Youth Tobacco Survey are released if the survey finds that 13%
or more of youth were able to purchase cigarettes (trigger
language).
Currently, the BOE has approximately 37,000 retailers and 1,000
distributors and wholesalers licensed to engage in the sale of
cigarettes and tobacco products in California.
" Trigger language :" This bill removes the "trigger language" for
the BOE to impose penalties for STAKE Act and Penal Code Section
308 violations. Existing law provides that the BOE's authority
to take action against retailers pursuant to BPC Section 22974.8
commences on the date results from the Youth Tobacco Survey are
released if the survey finds that 13% or more of youth were able
to purchase cigarettes. Further, the BOE's authority to take
action under this provision will become inoperative on or after
the date of the subsequent release of the results from the
survey showing that less than 13% of youth were able to purchase
cigarettes.
In 2009, the results of the Youth Tobacco Survey found that 8.6%
of youth were able to purchase cigarettes; this was a decrease
from the 2008 results which was 12.6%. In 2004 and 2006 when the
survey results were over 13%, the BOE had the authority to take
action against a retailer, however the BOE was never notified of
a conviction of a violation.
According to DPH, final administrative adjudication occurs when
a violation is appealed and processed through an administrative
hearing with an administrative law judge making a ruling on that
violation. However, not all violations of the STAKE Act are
appealed and heard before an administrative law judge. Such
violations include those in which the fines imposed pursuant to
the STAKE Act are simply paid upon receipt of a demand letter
and the violation is not contested, which would also be
considered a violation under Section BPC 22974.8.
Local ordinances : Many local cities and counties in California
have adopted local tobacco retailer licensing laws which require
a retailer to pay an annual licensing fee and be subject to
suspension or revocation of that license if they are found
selling tobacco to minors. Therefore, California retailers
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engaged in the sale of cigarettes or tobacco products and
located in a city or county that has adopted local tobacco
retailer licensing laws have two licenses (state and
city/county).
Existing local ordinances in some jurisdictions require
cigarette and tobacco product retailers to comply with specific
provisions of the jurisdiction's land use and zoning ordinances,
including provisions that regulate the location of these
retailers.
Arguments in support : Supporters state it has been well
established in numerous studies since the 1980s that active
enforcement of state and local tobacco sales to minors laws
reduce the percentage of retailers who illegally sell tobacco to
minors. It is time to put some teeth into the state licensing
law. A strong state tobacco licensing law makes sense because
keeping retailers from selling tobacco to children is crucial if
we want to prevent future generations from suffering a lifetime
of addiction to one of the world's most deadly products.
Selling tobacco products to minors remains a problem in
California. Every category of retail-large supermarkets, mom
and pop stores, pharmacies, gas stations and convenience
stores-has a responsibility to not sell cigarettes and other
tobacco products to minors.
Analysis Prepared by : Felipe Lopez / G. O. / (916) 319-2531
FN: 0004816