Agenda Item 8
October 20,2015
Public Hearing
MEMORANDUM
October 16,2015
TO:
FROM:
County Council
Ji:l
Robert H. Drummer, Senior Legislative Attorney
tfMJ
SUBJECT:
Public Hearing:
Bi1l41-15, Health - Distribution of Tobacco Products to Minors
Penalties
Bill 41-15, Health - Distribution of Tobacco Products to Minors Penalties, sponsored by
Lead Sponsor Councilmember Rice and Co-Sponsors Council President Leventhal, Council Vice
President Floreen, and Councilmembers Eirich, Navarro, Hucker, Katz, and Riemer, was
introduced on September 29, 2015. A Health and Human Services Committee worksession is
tentatively scheduled for November 5, 2015 at 9:30 a.m.
Distributing a tobacco product to a minor already violates County law. The current
maximum penalty is a Class A civil violation, punishable by a fine of $500 for a first offense and
$750 for a subsequent offense. Md. Local Gov't Code, §10-202(b) authorizes the County to
enforce a County law by a civil fine not exceeding $1000. Bill 41-15 would increase the maximum
ci vil fine for distributing a tobacco product to a minor to $1000 for a first offense and $1000 for a
subsequent offense.
Distributing a tobacco product to a minor is also a misdemeanor under Md. Criminal Law
Code, §1O-107, punishable by a fine of $300 for a first offense, $1000 for a second offense, and
$3000 for each subsequent offense within 2 years after the preceding offense.
An
enforcement
official would have the option of citing a violator under the State Criminal Law or under the
County law.
The County Attorney's Office issued a bill review memorandum raising a potential State
implied preemption issue for the existing County law prohibiting the distribution of tobacco, but
ultimately concluded that the Bill is probably not preempted by State law. See ©5-7.
This packet contains:
Bill 41-15
Legislative Request Report
County Attorney Bill Review Memorandum
F;\LAW\BILLS\154I Distributing Tobacco To Minor\PH Memo.Docx
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Bill No.
41-15
Concerning: Health - Distribution of
Tobacco Products to Minors ­
Penalties
Revised: 9-29-15
Draft No. 4
Introduced:
September 29, 2015
Expires:
March 29,2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
....;N:..:;o~n~e:......_
_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: COWlcilmember Rice
Co-Sponsors: COWlcil President Leventhal, Council Vice President Floreen, and Councilmembers
Eirich, Navarro, Hucker, Katz, and Riemer
AN
ACT to:
(1)
(2)
increase the maximum civil fine for distributing a tobacco product to a minor; and
generally amend the law prohibiting the distribution ofa tobacco product to a minor.
By amending
Montgomery County Code
Chapter 24, Health and Sanitation
Section 24-11
Boldface
Underlining
[Single boldface brackets]
Double undedinina
[[Double boldface brackets]]
*
* *
Heading or defined term.
Addedto existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves thefollowing Act:
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BILL
No. 41-15
1
Sec. 1.
Section 24-11 is amended as follows:
24-11. Distribution
of tobacco
products to minors.
2
3
4
5
(a)
Definitions.
In
this Section the following words have the meanings
indicated.
(1) Tobacco product means any substance containing tobacco,
including cigarettes, cigars, smoking tobacco, snuff, or smokeless
tobacco.
(2) Distribute means to:
(A) give away, sell, deliver, dispense, or issue;
(B) offer to give away, sell, deliver, dispense, or issue; or
(C) cause or hire any person to give away, sell, deliver,
dispense, or issue or offer to give away, sell, deliver,
dispense, or issue.
6
7
8
9
10
11
12
13
14
(b) Unlawful distribution.
(1) A person engaged
In
15
16
17
the business of selling or otherwise
distributing tobacco products for commercial purposes must not:
(i)
distribute any tobacco product to a minor, lUlless the minor
is acting solely as the agent of the minor's employer who
is engaged in the business of distributing tobacco products;
(ii) distribute cigarette rolling papers to a minor; or
18
19
20
21
(iii)
distribute to a minor a coupon redeemable for any tobacco
product.
(2) A person, who is not a person described lUlder paragraph
(bX1),
must not:
22
23
24
25
(i)
buy for or sell to a minor any tobacco product; or
26
(ii) deliver or sell to a minor cigarette rolling papers.
G)
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BILL
No.
41-15
27
(c)
Subsection
(b)
does not apply to the distribution of a coupon which is
redeemable for any tobacco product when the coupon is contained in a
newspaper, a magazine, or any other type of publication in which the
coupon is incidental to the primary purpose of the publication, or sent
through the mail.
28
29
30
3]
32
33
34
35
36
37
(d)
A person has not violated this Section if:
(1)
that person examined a driver's license or another valid
identification issued by an employer, a government entity, or an
institution ofhigher education; and
(2)
that license or other identification positively identified the buyer
or recipient of a tobacco product as at least 18 years old.
38
39
40
(e)
If a minor bought a tobacco product from a vending machine, this
Section does not apply to the owner of the vending machine or any
other person with control over the vending machine.
41
42
(f)
A person who violates this Section is liable for a [class
A]
civil
violation. The maximum civil fine is $1000 for
!!
first offense and
$1000 for each subsequent offense.
43
44
Approved:
45
George Leventhal, President, County Council
46
Approved:
Date
47
Isiah Leggett, County Executive
Date
(j)
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distributing tobacco to minor\bil/ 4.docx
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LEGISLATIVE REQUEST REPORT
Health
Bill 41-15
Distribution ofTobacco Products to Minors
-
Penalties
DESCRIPTION:
PROBLEM:
GOALSAND
OBJECTIVES:
Bill 41-15 would increase the civil fine for a violation of County law from $500 for a
first offense and $750 for a subsequent offense to $1000 for each offense.
The penalties under County law are too low.
Eliminate the distribution oftobacco products to minors in the County.
COORDINATION: Police, Department of Liquor Control
FISCAL IMPACT: To be determined.
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
To be determined.
nla
To be researched.
Robert H. Drummer, Senior Legislative Attorney
APPLICATION
WITHIN
MUNICIPALITIES: To be researched.
PENALTIES:
$1000 for each offense.
F:\LAW\BILLS\1541 Distributing Tobacco To Minor\LRR.Docx
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·
,:,~
.,-
,
._,
I
Isiah Leggett
County Executive
Marc
P.
Hansen
OFFICE OF
THE
COUNTY ATTORNEY
'MEMORANDUM
County Attorney
TO:
FROM:
VIA:
DATE:
RE:
Uma Ahluwalia. Director, DElliS
Kristen Kalaria. Assistant County Attorney, OCA
r..
~
8;t
Edward Lattner, Chief, Division of Government Operations, OCA
October 12,2015
1/3
;;t­
Bill 41-15 Distribution of Tobacco Products to Minors - Penalties CORRECTED
Summary
Bill 41-15 raises the maximum civil fine for distributing a tobacco product to a minor in
violation ofCounty Code
§
24-11 from $300 to $1000. As described in further detail below, the
proposed amendment does not raise' any legal issues. While a court could
find
that
§
24-11 itself
is preempted because the Court of Appeals recently concluded that "state law comprehensively
regulates the packaging, sale, and distribution oftobacco products, including cigars, and thus
preempts this field," we believe, on balance,
that
§
24-11
is
probably not preempted.
Clarity
Bill 41-15
is
clear.
Liability Exposure
Bill 41-15 does not expand the County's exposure
to
liability, except as noted below
under "Preemption."
Constitutionality
As tobacco
is
heavily regulated by the state and federal governments, it
is
necessary
to
consider the possibility
that
local regulation in the area may be preempted. Preemption may
be
either express or implied. Neither the state nor federal government expressly prohibits local
regulation oftobacco sales. Implied preemption, however, is a significant concern. Preemption
will
be
implied where the state or federal government
has
regulated a field so forcibly that its
101 Monroe Street, Rockville, Maryland 20850-2540
(240) 777-6700 • TID (240) 777-2545 • FAX (240) 777-6705
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Uma Ahluwalia
October 12, 2015
Page 2
intent to occupy the entire field must be inferred.
Mayor and City Council ofBaltimore v.
Sitnick,
254 Md. 303,323 (1969).
As
described below, it is unlikely
that
a court would find that
Bill 41-15, and the underlying Section 24-11,
is
preempted by
state
law.
Section
24-11
is Not Preempted by Federal
Law
Federal law prohibits sale of cigarettes to persons under 18 and requires retailers to check
photo identification for persons under the age of26. 21 C.F.R. 1140.14. According to the Food
and Drug Administration's most recent guidance document for retailers, the penalty for violation
of Part 1140.14 varies based on the number of violations within a four year period. The penalty
could range from a warning letter for
the
firSt violation to $11,000 for six or more violations
within four years. Preemption by federal law is not a concern. The Supreme Court has held that
federal law does not preempt local regulation oftobacco sales to minors.
Lorillard Tobacco v.
Reilly,
533 U.S. 525, 552 (2001).
Section
24-11
Is Probably Not Preempted by State Law
State law also prohibits the sale of cigarettes to minors. The state prohibition is found in
§
10-107 of the Criminal Law Article, Maryland Code. Section 10-107
is
almost identical to the
existing county law,
§
24-11 of the County Code. Like
§
24-11,
§
10-107 prohibits distribution
of tobacco products, paraphernalia, or coupons redeemable for tobacco products to minors. Both
sections also prohibit other individuals from buying tobacco products on
behalf
ofminors. The
laws differ only regarding
the
penalties: the state law provides penalties not exceeding $300 for a
first offense, $1000 for a second offense within two years, and $2000 for a third offense within
two years. The existing county law is punishable by a fine not exceeding $500 for a first offense
and $750 for a subsequent offense. Bil141-15 would increase the fine to $1000 for a first offense
and $1000 for each subsequent offense. A separate provision prohibits possession or use of
tobacco products by a minor. Md. Code Criminal Law
§
10-1 08
The Court ofAppeals recently struck down a Prince George's County ordinance
requiring
cigars to be sold in packages ofat least five, finding
that
the ordinance
was
preempted
by extensive State regulation in the field.
Altadis U.S.A. Inc. v. Prince George's County,
431 Md.
307, 309 (2013). The Court specifically held
that
"state
law comprehensively regulates the
packaging, sale,
and
distribution oftobacco products, including cigars, and thus preempts this
field."
Altadis
at 316. This
is
not the first time the Court has struck down a local tobacco
regulation on the basis ofpreemption.
In
Allied Vending v. City ofBowie,
332 Md. 279 (1993),
the Court invalidated two municipal ordinances restricting the placement ofstate-licensed
cigarette vending machines
in
an effort to make tliem less accessible to minors. The Court held
that the comprehensive state regulation "manifested an intent for the state to completely occupy
the field of the sale of cigarettes through vending machines."
Allied Vending
at 310.
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Uma Ahluwalia
October 12, 2015
Page 3
But it is possible
to
dmw some distinctions between
§
24-11 and the ordinances
invalidated by
Altadis
and
Allied Vending.
Both cases relied primarily on the comprehensive
state regulation of tobacco retailers found in Titles 16 and 16.5 of the Business Regulations
Article, Maryland Code.
In
contrst, the sale of cigarettes to minors is regulated in the Criminal
Law Article. Thus, it could be argued that this provision is not part ofthe comprehensive civil
regulatory scheme considered by
Altadis.
Also, because the county law differs from the state law
only in penalties assessed, one could argue that there is no potential for confusion
if
different
municipalities have different penalties because the prohibited
acts
are still identical. The
potential for confusion created by different municipal requirements
was
one of the concerns cited
by the court in
Allied Vending.
In
addition, after the County enacted § 24-11 in 1998, the General Assembly amended
§
10-107 (Laws of Maryland 2007, Ch. 218), and it did not disapprove or even make any
reference
to
the preexisting County law. The Maryland Court of Appeals
bas
previously
concluded that the General Assembly does not intend
to
impliedly preempt a field containing
preexisting local legislation and the General Assembly takes no action to "oust" that preexisting
local legislation.
National Asphalt v. Prince George's County,
292 Md. 75, 79,437 A.2d 651,
653 nA (1981).
In
such cases, the General Assembly is charged with knowledge of the
preexisting local law and is said to have acquiesced to the presence of local legislation in the
field.
l
Other
issues
Section 24-11 does not apply
to
e-cigarettes. This is not a problem, but the Council may
consider amending
§
24-11 to include e-cigarettes, as it recently expanded Section 24-9 (the
smoking ban) to do the same.
If
you have any concerns or questions concerning this
memorandum please
call
me.
cc:
Bonnie
Kirkland,
Assistant CAO
Robert H. Drummer, Senior Legislative Attorney
Marc P. Hansen, County Attorney
The Fourth Circuit concluded that
§
10-107, then codified
at
Md.
Ann.
Code
art.
27,
§§
404
&
405, did
not impliedly preempt a Baltimore City law prohibiting cigarette advertising on billboards located
in
designated
zones.
Perm Adver. oj'Baltimore,
Inc.
Y.
Mayor
&
City Council 0IBaltimore,
63 F.3d 1318, 1324, 1995 WL 530257
(4th Cir. 1995)
em.
granted, judgment vacatedsub nom. Perm Adver. 0IBa/timors,
Inc.
v.
Schmoke,
518 U.s. 1030,
116 S.
Ct
2575, 135 L.
Ed.
2d 1090 (1996)
and
adopted as modified,
101 F.3d 332 (4th Cir. 1996).
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