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Positions: Tying Alcoholic Beverage License Action to Unlawful Tobacco Sales A.1188
by Member of Assembly Dinowitz This bill seeks to heap additional forms of punishment upon storekeepers who are convicted of selling cigarettes to undercover minors who, working for the health department in any of the 33,000 "sting operations" they carry out each year, succeed in baiting clerks into an unlawful sale. Under existing law, upon a second violation, the retailer automatically has his or her tobacco and lottery license suspended. A.1188 would up the ante by requiring automatic suspension of his or her beer license as well. The sponsor's memorandum cites as justification for the bill the usual boiler-plate alarming national teen smoking statistics from reports issued seven to 10 years ago. Curiously, it offers no data specific to New York, to current New York laws regulating tobacco retailing, or to New York's system of tobacco enforcement. The truth is that in New York State, the rate of retail compliance with the law prohibiting sales to minors has steadily improved. State Health Commissioner Dr. Antonia C. Novello, in a press release dated October 1, 2001, reported that the retail compliance rate rose from 81% in 1998 to 88% in 2000, and is 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 now by mandating penalties that are even 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 is the principle of "license linkage" permissible only if it involves politically disfavored products such as tobacco? The sponsor's memo gives the impression that A.1188 would apply to every business that sells tobacco. The truth is that a group of retailers now accounting for 40% or more 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 thwarts the policy goal of preventing youth access. It is patently unfair to amplify this inequity by increasing penalties for those retailers who are not afforded the luxury of ignoring the public health law. The convenience store
industry shares the community's commitment to preventing youth access
to tobacco. We "get it," and as responsible retailers we
have been taking voluntary, pro-active, good-faith steps to prevent underage
sales. We are creating greater awareness of the ATUPA law, training
store personnel in techniques to detect and thwart underage sale attempts,
promoting deployment of "We Card" signage and age verification
technology at store counters, and encouraging use of internal compliance
checks and stronger store policies and procedures. The steadily rising
compliance rate is proof that these measures are making a difference. February 5, 2002 Home - About NYACS - Trade Show - The Industry - Membership - Contact Us - Issues - Tools
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