The punishment for tobacco retailers that are caught illegally selling products to minors in Santa Clara County may soon get a lot stricter.
The county Board of Supervisors considered recommendations to strengthen compliance and enforcement of local regulations on the sale of tobacco and vape products at its Tuesday meeting. Supervisor Joe Simitian requested that the proposed changes — which increased fines tenfold in some cases — be made even more substantial.
"I think we are headed in the right direction, but I would like to be, candidly, tougher still," Simitian said at the meeting. "As proposed and described in the staff report, the ordinance revisions would still allow one violation, two violations, three violations, and then we'd have to wait for a fourth violation before revocation was really on the table."
Currently, the county's Tobacco Retail Permit (TRP) ordinance requires that the Department of Environmental Health (DEH) conduct annual inspections of all tobacco retailers to verify that they're following requirements for selling tobacco products. The county has also partnered with the cities of Cupertino, Los Gatos and Palo Alto to adopt municipal code provisions identical to the county's ordinance. Tobacco retailers that operate in these partnership cities must apply for a tobacco retail permit from the DEH.
Additionally, the county Sheriff's Office and partnership cities' local law enforcement both conduct undercover inspections of some tobacco retailers to verify that they're not selling products to underage individuals.
Current county policy doesn't authorize revocation of a shop's license for repeated violations — it just ratchets up the fines for each offense. The changes proposed by staff include revocation on a fourth offense.
Staff also proposed a substantial increase in fines: Violations identified during a first inspection would rise to up to $1,000, whereas before it was $100; up to $1,500 for a second violation, compared to $250 before; and up to $2,500 for a third offense, compared to $500 before. Each of those proposed fines would be doubled for violations occurring at a business operating without a permit.
Simitian proposed that license revocation should be an enforcement option after a business's third offense, rather than the fourth. He also suggested that the county make the fines even higher for both permitted and non-permitted businesses that are caught violating the ordinance.
"I think it needs to be $2,500, not $1,500, for the second violation as a fine," Simitian said. "I think people are just building these fines into their cost of doing business and they're not really serving their intended purpose, which is to change behavior."
Simitian suggested keeping the proposed $1,000 for the first violation to give shop owners the benefit of the doubt. But after a second violation, "I'm starting to think that this was intentional," Simitian said. "Third time, I'm pretty clear that it's just intentional."
Simitian motioned to bring the item back at the board's next meeting reflecting his suggestions for increased fines and when a license can be revoked. But before the motion could go to a vote, Supervisor Susan Ellenberg expressed some concerns that the changes to the ordinance were becoming "excessively punitive."
"I'm particularly worried about equity impacts, really disproportionately hurting the smallest businesses," Ellenberg said. "Of course we want to discourage the use and the sale, I fully agree with that, but I'm not convinced that making these stricter standards are necessarily going to achieve the outcome we want without perhaps some significant, serious, unintended consequences for very small local real retailers."
Supervisor Cindy Chavez asked county staff if there was any evidence-based research to support how big a fine needs to be to create deterrence.
"There's not a lot of evidence about very specific dollar amounts," Tobacco-Free Communities Program Manager Nicole Coxe said in response. "What I think is really important about our updated recommendations is the addition of the revocation clause. … What the evidence really shows is that the suspension periods and the revocation clauses are a significant deterrent and really does move compliance on the issues."
Simitian said that if the board's trying to look at the issue through an equity lens, the supervisors should consider the way the tobacco industry has historically targeted communities of color and low-income people.
"Certainly there's no quarrel, Supervisor Simitian, with any of that data," Ellenberg said. "I was thinking from the perspective of very small business owners."
Ellenberg ended up supporting the motion once she confirmed that the fines were "up to" the proposed amounts, "allowing for discretion based on the individual circumstance, the intent and the survivability of the business."
Simitian also asked county staff to come back with information about what it would take to step up enforcement, "because I don't think a once-a-year inspection is sufficient to really provide the level of oversight if we're serious about the ordinance," he said.
Multiple local parents called in to express their concerns about the illegal sale of tobacco products to youth, and their support for the proposed changes. Eileen Kim, a Palo Alto resident and pharmacist with two children, asked the county to make enforcement visits more frequent than once a year.
"We are talking about a phenomenon that is causing teenagers to become addicted for life," Kim said.
According to the county staff report, a majority of tobacco retailers are compliant with the county's ordinance code.
"However, the county continues to identify violations, including, in some cases, repeat violations at the same businesses," the report continued.
Enforcement operations conducted at 20 tobacco retailers by the Sheriff's Office in September and December 2021 resulted in citations issued to six shops for unlawful sale of tobacco products to an underage person, according to the report.
"That's 30%," Simitian said. "That's not inconsequential. And that's because we have only one inspection a year, and if people don't get caught in a violation, that's it for the year."
Simitian's motion to bring the ordinance back with his proposed changes passed unanimously.
Multiple county residents expressed their appreciation for the county's actions.
"My mom died from cancer, and I'm a former smoker, and I'm here to tell you that I appreciate this effort to step this up," county resident Walter Wilson said. "I think these products should be illegal. I don't think they should be allowed to sell these products to human beings."