County asks state to lighten up on penalties faced by small stores charged with selling tobacco to teens

The owners of Jay's Deli and Market in Highland Mills and Danny's Market in Central Valley agree on two points. First, the intent of the Adolescent Tobacco Use Prevention Act are laudable. Colleen Pearce of Jay's Deli said her father died of emphysema and she would like it if nobody smokes. Danny Yu said he would like to see everyone who buys cigarettes to be required to show identification so his clerks would not have to make judgment calls. The storeowners also agree that the law, as enforced, is unfair to smaller stores and to those that offer the New York Lottery to their customers. That's because the fines for a large supermarket and for a corner deli are essentially the same, Yu said. The $1,500 fine that can be devastating for a small store is a fraction of the cost of doing business for a large chain supermarket or pharmacy, he said. Pearce noted that stores that don't sell Lottery tickets face a smaller penalty than those that do because they have less to lose. The Orange County Legislature also agrees. In a resolution passed at its February meeting, the lawmakers declare the enforcement of the law "unfair and inequitable," and call on New York State to pass a number of amendments to the law. The Legislature asks for a reduction in the number of "points" assessed against a store if the business has completed an education program for the prevention of sale of tobacco products to minors. It calls for an amendment that would require vendors to require proof of age of customers who "reasonably appear" to be under 40. Another amendment would allow a business owner could assert as a defense that an employee sold tobacco to a minor without the knowledge and consent "where the employer has acted in good faith to prevent such sales." Finally, the Legislature calls on the state to repeal the section that provides for the suspension or revocation of the license to sell lottery tickets, and to reinstate licenses that have been revoked. "We all want to stop sale of tobacco to kids," said legislator Roxanne Donnery, whose district includes much of Woodbury. "We have to do it the right way. I don't think it (the current process) is a good communication to store owners; it's become a ‘gotcha' game. Not all delis were properly informed that a second violation doesn't just lead to a fine, it gets tobacco sales cut off, and now the Lottery as well." Orange County Executive Edward Diana also supports the changes in the law, said Diana's assistant, Steve Gross. "The County Executive brought the issue to the Legislature," he said. "He felt there were things that needed improvement." Among the changes Diana supports are doing away with the provision revoking the Lottery license of a store that violates the law and increasing the apparent age at which a patron need not show identification to 40 or more. "He would have liked to have it simply require that everyone show identification," Gross said. "Ed asked all the youths in the program to come into his office because he was concerned that some might look older than teenagers." The county offers a lower fine if a storeowner agrees to waive a hearing, Pearce said. So when she was charged a second time with selling tobacco to an underage patron - it was actually one of her clerks who sold it - she agreed to pay the lower fine. The form said a third offense would cause her to lose her license to sell tobacco products and Lottery tickets, she said. It also said the information would be forwarded to the state. "I should have asked about that," she said. "I asked if paying the fine would be the end of it, and the answer I got was yes. That meant it was the end of it for the county. They should have informed me that the state would take my license on the second offense." Yu did ask about every statement on the form, and decided to ask for a hearing. The hearing was in early December, and he was told he would hear back in a month. As of last Friday, Feb. 12, he had not heard, and he was hopeful this meant he would not be penalized, and for the time being he still sells cigarettes. However, he said, a law that can virtually put a store out of business for an error on the part of a clerk, who may be a teenager herself, is too harsh. Yu's current clerk, Michele Chartier, said she was sometimes cursed or threatened when she insisted a customer show identification. Legislator Michael Amo of Central Valley said he is concerned that the law penalizes the business owner, but has no penalties for the employee who actually sells the cigarettes to a minor. "Selling tobacco to a minor is a misdemeanor. Perhaps when we find someone doing this, we should notify the local police and let them decide whether there's a case," he said. "Even if it doesn't result in a prosecution, can you imagine the effect on a 16-year-old of being pulled out of class to be questioned and warned by a police officer. I'm sure that's one student who would be a lot more careful about who he sold cigarettes to." Pearce had a stack of references from local people attesting to her character. A plaque on the wall from the Woodbury Community Association proclaims her the Citizen of the Year. One of the letters noted that the writer's children were refused cigarettes before they were old enough to buy them: "When they came of age and could prove it, they were allowed to buy cigarettes, but they received many lectures from the woman behind the counter about the ridiculousness of tobacco and how dangerous this drug is." As an illustration of how difficult it can be to estimate age, Pearce noted that Barbara Baxter, who runs the inspection program for the county Health Department, estimated the age of Pearce's clerk at more than 36. In a letter to the department, Pearce said, "I assume she (Baxter) is well trained by your department. My employee is 27; do you agree age can be hard to distinguish, especially with a female wearing makeup?" In order to maintain the confidentiality of the youthful purchasers in the sting operations, storeowners are not allowed to see them. That means, Pearce said, that they have no idea how old these youths look. Pearce's business has fallen off drastically in the past two months since she has been unable to offer cigarettes or Lottery tickets. Some customers who came to buy cigarettes or play the Lottery now buy their groceries and sandwiches in stores that sell these products