Memorandum in Opposition

Linking Alcohol License Action to Tobacco Enforcement

A.3128 by Member of Assembly Dinowitz
AN ACT to amend the public health law, the criminal procedure law, the alcoholic beverage control law and the tax law, in relation to limiting access to tobacco products and subjecting lottery and alcoholic beverages licensees to disciplinary action for tobacco product sales

This bill, which seeks to heap additional punishment upon stores convicted of selling cigarettes to undercover minors, is so laden with redundancies, contradictions, loopholes and hyperbole that it is of no value in advancing the effort to eliminate youth smoking in New York, to wit:

•   Suspension of the store's tobacco and lottery licenses is already among the range of penalties for selling cigarettes in violation of the Public Health Law. The proposed requirement for lottery license action therefore is duplicative.

•   Part of the proposed amendment to Section 65 of the Alcoholic Beverage Control law directly contradicts Subdivision 1 of Section 1399-cc of the Public Health Law, which excludes college ID's from the list of acceptable forms of age verification (see Chapter 162 of the Laws of 2002).

•   A group of retailers accounting for 30% of tobacco sales in New York is exempt from the sting operations that trigger these penalties. Using "sovereign immunity" as a shield, Native American tribes refuse to register with the Department of Taxation and Finance as tobacco dealers and subject their stores to the health department sting operations and harsh penalties that non-Native American stores like ours are routinely exposed to. The risk of underage sales occurring at their stores is no smaller, but the chance of detecting them is zero. This inequity is an outrage to law-abiding retailers, and it thwarts the policy goal of preventing youth access to tobacco. It is patently unfair to compound this inequity by broadening penalties for those retailers who are not afforded the luxury of ignoring the Public Health Law.

•   Subdivision 3 of Section 260.21 of the Penal Law makes selling tobacco to a minor the Class B misdemeanor of unlawfully dealing with a child in the second degree. A.3128 would direct district attorneys, upon a conviction, to notify the Division of the Lottery and the State Liquor Authority. Since such Penal Law charges are lodged against an individual (often a clerk or cashier), while the holder of the lottery and beer license is typically a corporation, partnership, or other business entity that operates the store, such notification would be immaterial.

•   As justification for the bill, the Sponsor's Memorandum cites boiler-plate alarming national teen smoking statistics from reports issued seven to 10 years ago. It provides no data specific to New York, to current New York laws regulating tobacco retailing, to New York's system of tobacco enforcement, or to the amendments proposed in the bill.

The truth is that in New York State, retail compliance with the law prohibiting sales to minors is steadily improving. State Health Commissioner Dr. Antonia C. Novello, in a press release dated October 1, 2001, said the compliance rate rose from 81% in 1998 to 88% in 2000, and was still rising. "We are pleased to see that retailers are doing a much better job of making sure that teens are not being sold tobacco," she stated. "And, preliminary information from this year shows that retailers are continuing this upward trend." With the regulated community responding in such positive ways, why raise the stakes by mandating penalties that are more excessive?

Beyond that issue, is it fair – let alone constitutional – to pre-emptively suspend a store's license to sell one product because of an infraction involving the sale of another product for which there is a separate license, license fee, regulating agency, and set of standards? To oversimplify, if your driver's license is suspended, should your hunting license be suspended as well, on the assumption that if you broke one law, you are certain to break another? Or should license linkage apply only to politically disfavored products such as tobacco?

The convenience store industry shares the community's commitment to preventing youth access to tobacco. As responsible retailers we take voluntary, pro-active, good-faith steps to prevent underage sales. We train store personnel in techniques to detect and thwart underage sale attempts, deploy "We Card" signage and age verification technology at store counters, hire private firms to conduct internal compliance checks at our stores, and maintain strict store policies and procedures. The steadily rising compliance rate is proof that these initiatives are making a difference.

It is also worth noting that the vast majority of teen smokers get cigarettes not from stores, but from adult relatives or acquaintances. Thus greater emphasis needs to be placed on stopping teens who are smoking by making it illegal for minors to possess tobacco. New York remains one of only a handful of states without such a law.

For the aforementioned reasons, the New York Association of Convenience Stores, representing nearly 5,000 retail locations duly licensed by the State of New York to responsibly sell legal tobacco products to adult customers, opposes passage of this legislation.

March 17, 2003