Rockwood v. City of Burlington, Vt.

• Decision Date: 21 September 1998
• Docket Number: No. 2:98-CV-223.,2:98-CV-223.
• Parties: William G. ROCKWOOD, d/b/a Kerry's Kwik Stop, and David M. Rockwood, d/b/a Old North End Variety, Plaintiffs, v. CITY OF BURLINGTON, VERMONT, Defendant.
• Court: U.S. District Court — District of Vermont

21 F.Supp.2d 411

William G. ROCKWOOD, d/b/a Kerry's Kwik Stop, and David M. Rockwood, d/b/a Old North End Variety, Plaintiffs, v. CITY OF BURLINGTON, VERMONT, Defendant.

No. 2:98-CV-223.

United States District Court, D. Vermont.

September 21, 1998.

COPYRIGHT MATERIAL OMITTED

Amy Elise Sylvester, Sylvester & Maley, Inc., Burlington, VT, for plaintiffs.

John Thomas Leddy, Joseph Edward McNeil, McNeil, Leddy & Sheahan, P.C., Burlington, VT, Jessica A. Oski, City of Burlington, Burlington, VT, for defendant.

Douglas J. Wolinsky, Shireen Soraya T. Hart, Saxer, Anderson, Wolinsky & Sunshine, Burlington, VT, for American Civil Liberties Foundation of Vermont, Inc., movant.

Richard Thomas Cassidy, Hoff, Curtis, Pacht, Cassidy & Frame, P.C., Burlington, VT, for movants American Lung Association, American Lung Association of Vermont, American Heart Association, Public Citizen, National Center for Tobacco-Free Kids, Vermont Public Interest Research Group, Vermont Childrens' Forum, American Academy of Pediatrics — Vermont Chapter, Vermont Academy of Family Physicians.

OPINION AND ORDER

SESSIONS, District Judge.

In this action for declaratory and injunctive relief, Plaintiffs William G. Rockwood and David M. Rockwood ("the Rockwoods") seek to enjoin enforcement of the city of Burlington, Vermont's ("City's") recently enacted "Youth Access to Tobacco Ordinance," ("Ordinance") which regulates the advertising of tobacco products. Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, the hearing on Plaintiffs' motion for temporary restraining order and preliminary injunction was consolidated with a trial on the merits. The case was tried to the Court on July 16 and 17, 1998. Amicus curiae briefs have been filed by the American Civil Liberties Union of Vermont in support of the Rockwoods, and by the American Lung Association, the American Lung Association of Vermont, the American Heart Association, Public Citizen, the National Center for Tobacco-Free Kids, Vermont Public Interest Research Group, the Vermont Children's Forum, the Vermont chapter of the American Academy of Pediatrics, and the Vermont Academy of Family Physicians in support of the City.

The Rockwoods assert that the Ordinance abridges commercial speech in violation of the First Amendment to the United States Constitution, that the Ordinance is preempted by federal law, and that the City lacks the regulatory authority to enact such a measure. For the reasons that follow, the Court finds that Sections 21-62 and 21-63 of the Code of Ordinances of the City of Burlington are invalid, and enjoins the City from enforcing these provisions of the Youth Access to Tobacco Ordinance. Section 21-64 is a constitutional and reasonable exercise of the City's police power, and is therefore valid.

FINDINGS OF FACT

1. This action is brought under the Federal Declaratory Judgments Act, 28 U.S.C. § 2201-02, and the Court has jurisdiction under 28 U.S.C. § 1331.

2. Plaintiff William G. Rockwood is the owner of Kerry's Kwik Stop, a convenience store located at 249 St. Paul Street in the City of Burlington, Vermont.

3. Plaintiff David M. Rockwood and his wife are the owners of Old North End Variety, a convenience store located at 142 North Winooski Avenue in the City of Burlington, Vermont.

4. The Rockwoods are licensed by the City to sell cigarettes and tobacco products, and they sell cigarettes and tobacco products in their convenience stores. The cigarette packages they sell are labeled in conformity with the provisions of the Federal Cigarette Labeling and Advertising Act.

5. The City of Burlington, Vermont, is a political subdivision of the State of Vermont, located in Chittenden County, Vermont.

6. The State of Vermont prohibits the sale, furnishing, purchase or possession of tobacco products to or by any person younger than eighteen years of age. Vt.Stat.Ann. tit. 7, § 1003(a), 1005(a) (Supp.1997).

7. The Vermont State legislature has found that the incidence of daily smoking by minors has been increasing, and that as of 1995, 38 per cent of Vermont high school students were smoking cigarettes. 1997 Vt. Acts & Resolves Act 58, § 1(b).

8. On April 13, 1998, the City, operating through its City Council, after public comment and discussion, adopted an Ordinance entitled "Youth Access to Tobacco." In conjunction with the passage of the Ordinance, the City Council adopted a "Resolution Relating to Tobacco Advertising" ("the Resolution").

9. The Ordinance was scheduled to go into effect July 1, 1998; however, the parties have agreed to a stay of enforcement until no later than September 21, 1998.

10. The stated purpose of the Ordinance is to decrease the illegal use of tobacco products by minors.

11. The Ordinance was sponsored by the City Board of Health to send a clear and consistent public health message to youths about the health risks of tobacco use.

12. In urging the passage of the Ordinance, one of the City Council members referred to the measure as "first and foremost a public health issue." Another Council member associated the regulation of tobacco advertising with blocking the promotion of nicotine and reducing nicotine addiction.

13. The Ordinance prohibits point-of-sale advertising of tobacco products by any means other than a maximum of two black and white, text only, 8½ by 14 inch signs ("Tombstone Signs") in or on any retail establishment where tobacco products are offered for sale. The text may not exceed one inch in height, and may include only the brand name, description of the product, tar and nicotine content, price, and any warnings required by federal law. The Ordinance makes it unlawful for City retailers to use any promotional items inside or outside their stores, such as clocks, grocery dividers, display racks, ashtrays, trash cans, catalogues, uniforms, T-shirts, or other clothing.

14. The Ordinance prohibits any person from publicly displaying any sign or other form of textual or graphic expression that advertises or promotes the use of any tobacco product within one thousand feet of a school property. The Ordinance excepts from this prohibition a licensed retailer's sign if it is not visible from the outside of the licensed premises; any signs on tobacco product packaging or commercial vehicles being used to transport tobacco; signs on personal apparel; and signs in or on books, magazines, newspapers or similar publications.

15. The Ordinance prohibits the distribution of free samples of tobacco products, or of promotional materials, or of coupons redeemable for tobacco products or promotional materials.

16. The Ordinance prohibits any manufacturer, distributor, or retailer from sponsoring any athletic, musical, artistic or other social or cultural event using a tobacco product brand name, logo, motto, or image.

17. The Ordinance prohibits self-service displays of cigarettes and tobacco products by any licensed retailer.

18. Violation of the Ordinance exposes the violator to penalties under the City Code of Ordinances and Vermont Statutes Annotated, tit. 24, § 1974(a) (1992 and Supp.1997).

19. In connection with the Youth Access to Tobacco Ordinance, the City Council found that the City has a substantial and important interest in reducing the illegal use of tobacco products by persons under the age of eighteen; that certain types of advertising have particular appeal to the young; that pervasive cigarette advertising directed to young people increases the risk of their use of tobacco; that regulation of tobacco advertising can reasonably be expected to decrease the illegal use of tobacco products by minors; and that prohibition of self-service displays can reasonably be expected to decrease the illegal purchase of tobacco products by minors.

20. Sales of cigarettes and tobacco products at Kerry's Kwik Stop amount to approximately $165,470 annually. Sales of cigarettes and tobacco products at Old North End Variety amount to approximately $100,110 annually.

21. Old North End Variety is located within one thousand feet of the following school properties: St. Joseph's School, Lawrence Barnes School, H.O. Wheeler School, Community College of Vermont, O'Brien's School of Cosmetology and Hairdressing, and the Ohavi Zedek Synagogue School.

22. The sale of cigarettes and tobacco products generates collateral sales of other items offered for sale in the Rockwoods' convenience stores.

23. The Rockwoods display advertisements and promotional materials for tobacco products both inside and outside their stores. The Rockwoods have contracts with suppliers of tobacco products for promotional allowances, which allow them to pass on to their customers competitive price breaks. The use of such promotional allowances is an important part of their business.

24. William Rockwood receives from suppliers of tobacco products approximately $1,200 to $1,500 per quarter tied to the promotional display of tobacco products. David Rockwood receives from suppliers of tobacco products approximately $4,000 annually tied to the promotional display of tobacco products. Under the Youth Access to Tobacco Ordinance they will lose these allowances, and will experience a decrease in sales volume.

25. Under the Youth Access to Tobacco Ordinance, the Rockwoods will be prevented from engaging in any competitive advertising of tobacco products. They will have to remove from their stores the tobacco product promotional items currently in use, and will have to replace them at their own expense. They will have to reconfigure the area behind their cashiers' counters to relocate cigarettes and tobacco products to that area at their own expense.

26. Under the Youth Access to Tobacco Ordinance, David Rockwood will be prohibited from posting any signs visible from the exterior of his store that advertise the sale of tobacco products. Many other convenience stores in Burlington are located within one thousand feet of a school property, and will be similarly...