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Where There’s Smoke
Orange cigarette-machine ordinance draws legal fire from vendor
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Business New Haven
8/10/98
By: Linda Mele
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Can the state help a municipality put a company whose business it licenses out of business?
That's what a New Haven cigarette vending machine company wants to know.
Modern Cigarette Vending Inc. filed a suit against the town of Orange and an ordinance it enacted July 1, the first of its kind in the state, which bans tobacco product vending machines and sharply restricts tobacco advertising in town.
The ordinance is aimed at preventing children from having access to tobacco products and being enticed to use them by “seductive” advertising aimed at them, according to Orange First Selectman Robert Sousa.
At a hearing for a temporary injunction in New Haven Superior Court on July 20, Assistant Attorney General Eliot Prescott filed a motion to join the town in defending its right to enact such ordinances and to defend the state statute that allows the town to do it.
The suit includes claims of state and federal constitutional violations, restraint of trade and a contention that there is no need to ban the machines because there are “lockout” devices available for them that would prevent children from purchasing cigarettes from the machines.
At the heart of the case, however, is whether a municipality has the right to ban a legal, state-licensed activity and whether the advertising restrictions in the ordinance violate free-speech guarantees, according to Anthony Bonadies of Hamden, the attorney representing Modern.
Modern spokesman Doug Montano, whose company had just one machine in Orange, says he isn't worried about the Orange ordinance itself, but the “domino effect” it could have.
Says Montano, “If other towns adopt similar ordinances, we'll be out of business.”
Other communities considering similar ordinances include New Haven, Bridgeport, Derby, Seymour, New London and Avon.
Montano says he pays $1,000 a year to the state for a license to dispense cigarettes via vending machines and also pays property tax to each town or city for every machine.
“The state licenses us to sell cigarettes and we have to follow all kinds of regulations to keep that license,” Montano explains. “Every month we must submit [to the state] a list of locations where we have machines and they can't be in places specifically where children congregate.
“The whole thing defies logic,” Montano adds, “but it's politically correct right now to pick on our industry even though we've done something constructive to prevent minors from being able to buy cigarettes.”
That “something constructive” is placing devices on machines that prevent a purchase without the machine being unlocked by a worker at the machine's location, Montano says.
“Eliminating the machines doesn't eliminate the problem of kids buying cigarettes,” says Mark Levine, a spokesman for the Chicago-based Amusement & Music Operators Association.
Levine says most communities throughout the country that want to make it harder for kids to buy cigarettes have opted for the lockout devices.
Vending-machine sales of cigarettes account for only about three percent of all cigarette sales nationwide, according to Levine, and 95 percent of all machines are in bars and factories, places where children generally are not welcome.
Montano characterizes it as “a nickel-and-dime business.” His company, he says, makes its money on volume: placing many machines in many locations in many communities. In addition, his license permits the company to sell via machines only.
Prescott's brief requested intervenor status in the suit, in part because “the state of Connecticut has a direct and immediate interest in defending the constitutionality of a statute duly enacted by the state legislature,” has “a significant interest in preserving its statutory scheme regarding the regulation of the sale of tobacco products to minors” for which it chose “to criminalize the sale of tobacco products to minors,” and “its interest will not be adequately represented by the existing parties.”
On Modern's side, Connecticut Civil Liberties Union Executive Director Joseph Grabarz says his group will file an amicus curiae [friend of the court] brief regarding the constitutional questions raised by the ordinance.
Bonadies says it's not a case about tobacco or allowing children to smoke; it's a case about the town eliminating a legitimate, state-licensed business activity.
“It's a legal product and we should be able to sell it,” Montano argues. “If they don't want us to sell it, they should make it illegal.”
Judge Patty Jenkins Pittman is expected to rule on the intervenor motions by the end of August and, unless the suit is dismissed, will scheduled a hearing in early September on the injunction request.
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