Alachua County, Florida

Leading the Way in the Southeast on Tobacco Retailer Licensing, Tobacco 21, and Proximity Restrictions Near Schools

—

Update: In May 2021, Senate Bill 1080 passed in Florida, raising the minimum legal sales age to 21, while also including preemptive language that prevents any policy at the local level that would address the age of sale or “marketing, sale, or delivery of” tobacco and nicotine products. The language unfortunately invalidates the existing Tobacco Retailer Licensing policy passed by Alachua County.

Despite being preempted, Florida has the opportunity to strengthen tobacco prevention and control efforts by tracking tobacco retailers, conducting tobacco retailer inspections, and doing checks to monitor tobacco Assurances of Voluntary Compliance (AVCs). Learn more in the Tobacco Point of Sale Preemption Playbook.

—

In January 2019, Alachua County became the first place in Florida to implement a local tobacco retailer licensing policy, raise the minimum legal sales age for tobacco to 21, and require any new tobacco retailers to be located at least 1000ft away from schools. The county is also the first in the Southeastern US to implement tobacco retailer licensing at the local level. The State of Florida requires tobacco retailers to obtain a license for $50 annually; however, as the state definition of tobacco product does not include e-cigarettes, that licensing requirement does not extend to vape shops or other retailers that only sell e-cigarettes. Under Alachua County’s new ordinance, all retailers selling any type of tobacco product, including e-cigarettes, must apply for a county license yearly and pay a yearly licensing fee of $230. Retailers that violate the county’s license (e.g. by selling to individuals under 21 years of age) could have their license to sell tobacco suspended for 7 days. The 2^nd violation in a 24-month period results in a 30-day license suspension, the 3^rd violation results in a 90-day suspension, and the 4^th in revocation of retailer’s license with no option to reapply. Read the full ordinance here.

These policies were the result of many years of hard work shared by multiple partners. We had the opportunity to talk with representatives from the Tobacco Free Alachua partnership, the Alachua County Department of Health (DOH), as well as the Bureau of Tobacco Free Florida to learn more.

Why these policies?

Tobacco Retailer Licensing

After several years gathering data in the tobacco retail environment about what types of tobacco products are being sold, how they’re being marketed and where, and educating the community about this, tobacco retailer licensing seemed like the next logical step to move the needle in the state for preventing tobacco use in communities all across the state by allowing local governments an avenue to better control how tobacco products are sold in their communities. The Florida Department of Health recognized a lack of political support across the state for the pursuit of policies that may be perceived by some as anti-business. For this reason, they approached point-of-sale policy change initiatives with caution. However, after receiving a favorable opinion from the Florida Department of Health’s legal counsel regarding the ability of local governments to pursue local retail licensing, the Department launched a pilot program to test the waters. Starting in 2017, a pilot group of 12 counties with grants from the Bureau of Tobacco Free Florida got explicit permission and a directive to pursue local tobacco retailer licensing in their home communities. From the Alachua County Department of Health’s perspective, having support from the state level to tackle these policies that had not been done before in Florida and some of the background work that the state had done to pave the way for legal approval of the policies made a big difference in their efforts.

While addressing the vaping epidemic was not a large part of the advocacy for the policies at the beginning, as the youth vaping epidemic continued to grow and became a concern among upper-middle class white families who drive a lot of the political discussions, the Alachua County Tobacco Free Partnership centered vaping in their framing more. Adding licensing for tobacco retailers, including e-cigarette retailers (which are not licensed at the state level) seemed like the next natural step to protect young people from nicotine addiction.

In addition, they realized that the current compliance check system was not covering all retailers in the county each year. In 2017, the FDA inspected only 35% of tobacco retailers across Alachua County and the Florida Division of Alcoholic Beverages & Tobacco (ABT), which handles Synar and any additional state-level compliance checks, visited only 18% of retailers across the county. Tobacco retailer licensing would provide funds and a structure for visiting each retailer at least once per year. Tobacco retailer licensing would also give the county the ability to impose more meaningful penalties than warnings and fines, which can sometimes be written off as the cost of doing business. Their hope is that the threat of license suspension and/or revocation will lead retailers to make a greater effort to prevent underage sales and deter repeat violations.

Tobacco 21

Discussion of Tobacco 21 as a policy focus began within the Tobacco Free Alachua partnership in December 2016, and this policy was one that the partnership’s Vice Chair Wendy Resnick was particularly passionate about. With the Institute of Medicine report and evaluation data from Tobacco 21 early adopters, they knew the policy was evidence-based.

The Florida Department of Health attorney provided the Bureau of Tobacco Free Florida (BTFF) with an opinion that BTFF could support local governments in their attempts to implement a local tobacco retailer license, but had some concerns that raising the minimum legal sales age might face a conflict preemption with state law. The attorney advised that BTFF grantees (in this case, the Alachua County DOH) could not recommend the passage of Tobacco 21 laws in their efforts to educate local governments about tobacco retailer licensing. However, as private citizens, the members of the independent tobacco free partnerships were not constrained by this advice and could advocate for the inclusion of Tobacco 21 components in their tobacco retailer licensing ordinances, which the Tobacco Free Alachua partnership chose to do.

Alachua County has a history of leadership on tobacco control issues, prohibiting the sale of e-cigarettes to minors in December 2013 ahead of state action. Gainesville, the largest city in the county, has also implemented other progressive tobacco control policies, including a ban on vaping wherever smoking is prohibited in December 2014 and prohibiting both smoking and vaping in city parks in March 2017. Along with tobacco-free university and college policies, smokefree housing, and smokefree workplace policies, these policies helped to build momentum and interest in tobacco control. Adding a Tobacco 21 policy seems like the next natural step for Alachua County to maintain their leadership on tobacco control issues.

School “Buffer Zone”

In Florida, bars must be located at least 500 ft from schools, and in Gainesville, any alcohol retailer must be at least 400ft from schools. Sexually oriented businesses are required to be even farther away from schools. However, there were previously no restrictions on how close tobacco retailers could locate to schools, and research shows that schools with more tobacco retailers within walking distance have higher rates of smoking. ^[¹^]

Key Partners

In Florida, county health departments work closely with independently-led local tobacco-free partnerships or coalitions. In this case, the Alachua County DOH was able to review the research, find best practices, and put together talking points for community education, while the Tobacco Free Alachua partnership was going out and doing some of the advocacy work that health departments are often restricted from conducting. The partnership organized weekly calls to check-in about progress.

As the two organizations worked together, they were very intentional about engaging partners strategically. One of their first priorities was to talk with all of the smaller municipalities within the county. While Gainesville is the population center, it also generally more progressive than the rest of the county, some of which is also very rural. There is a culture within the smaller localities and rural areas of not wanting to get pushed around by the county government. By engaging with and offering to present to every city or town council within the county, the partnership was able to generate letters of support for the ordinance from some of the communities.

Other partners were also picked strategically – thinking about whose support was most critical to have, what groups were influential in the county, and how likely they were to be supportive. The team then relied on their relationships and the networks of the Tobacco Free Alachua partnership members to connect partners to work together toward a common goal. Some of the key partners included:

Gainesville 4 All. As a coalition with the goal of addressing racial and economic inequities in the community, Gainesville 4 All determined that tobacco was at the top of their list of health topics to address through systemic changes. Around that same time, the CDC’s 500 Cities Project released data showing that minority areas in the City of Gainesville had higher rates of tobacco use. That focus on how tobacco impacts health equity helped kick-start the policy work, and tobacco became part of the ongoing conversations around equity in Gainesville. It allowed the partnership to expand their audience beyond those who were already focused on health.
Alachua County Healthcare Advisory Board. This group advises county commissioners on health-related topics. Tobacco Free Alachua presented the policy to them several times, and then based on the data, the advisory board voted to recommend a Tobacco 21 policy (with licensing as an enforcement mechanism), and presented it to the full commission.
Individuals from various groups, including Primary Care Progress, Community Health Service Corps, Health Educated Asian Leaders, as well as individual faculty at the University of Florida. Students became invested in the issues and acted as advocates, filling the commissioners’ inboxes with letters of support for the policies.
Local PTAs (including the Alachua County Council of PTAs), other school and parent groups. These groups send letters of support, spoke at the ordinance’s hearing, and were important voices for supporting the proximity restriction near schools.
Gainesville Sun Editorial Board – A series of op-eds and editorials in the paper were published.
American Heart Association
American Cancer Society
March of Dimes

From each group that they engaged with, the volunteer partnership leaders asked for support in some way – whether that was through a letter of support, an e-mail or call to county commissioners, or writing a piece for the local newspaper. They provided templates for letters of support that folks could use and modify with their own voice.

Note: Counter Tools has partnered with the Bureau of Tobacco Free Florida since 2014 and provided training and technical assistance to local health departments across the state, including Alachua County, on collecting data in the retail environment, mapping the tobacco retailer landscape, why the point of sale matters, and point of sale policy options.

How did they make the case?

They met with decision makers early on in the process, and gained some early champions in County Commissioner Ken Cornell and Gainesville Mayor Lauren Poe. However, while many were supportive, the commissioners needed to know that they community would support the policies, too. In addition to their consistent and widespread community education efforts, other pieces of the partnership’s strategy contributed to their success as well. Kingdon’s multiple streams theory posits that policy change happens when three streams come together: a problem is identified, an appropriate solution is identified, and there is political will to make it happen. In Alachua County, all of those pieces came together in an opportune way. For example, In 2018 in Alachua County was deemed “The Year of the Child,” which fit well with the policies. Here are some of the other strategies that helped make their efforts successful:

They kept everything very data driven.
They built their campaign off of ongoing conversations in the community (e.g. about reports like this one on Understanding Racial Equity in Alachua County) and carefully crafted message with frames that they thought would resonate with different audiences and partners. In their outreach efforts, they developed different talking points for every group based on the population that group served.
They used maps to help tell the story at a hyperlocal level. They were able to show maps of every K-12 school in Alachua County with the impacts of different types of buffer zones – 500ft, 1000ft, half a mile – to show how many retailers would be impacted, and how many retailers were within a certain distance of each school.
They focused on health equity, telling the story of the east-west divide in Gainesville. The east side has higher rates of smoking, whereas the west side has lower rates of smoking.

They made it simple for the county council by providing technical support to the county attorney and growth management staff (the group that oversees code enforcement in the county), sharing data with them and outlining options for administration and enforcement of the license. They met with Growth Management to help determine an appropriate cost for the licensing fee. They also provided them with model language. To develop that language, they started with a model policy created by the Public Health Law Center for Minnesota and then worked with the Southern Legal Counsel to adapt is for Alachua County. Former Alachua County DOH Health Policy Director Andrew Romero stated, “In the early days, it was particularly important to convince the decision makers that we were working with their staff to figure out a solution, and make sure it was a solution that would fit and wouldn’t create a lot of extra work.”
Repetition of key messages. For example, every fact sheet, article in the newspaper, or presentation included the fact that 95% of people start smoking before the age of 21.
They presented the policies as part of the solution to the vaping epidemic among youth and emphasizing that the issue was too urgent to wait for action from the state or federal government.
They argued that it would help close a loophole in state law. While the State of Florida does license tobacco retailers, no such license is required to e-cigarette retailers or vape shops. Licensing all types of tobacco retailers at the local level would help close that loophole.
They also started bringing vaping devices with them for a “show & tell” to engage folks on a different level and make a visceral connection to an issue of public interest, making sure parents knew that Juul devices look like flashdrives and that it may be harder to detect their use because they don’t smell like cigarette smoke.
They argued that not only were not all retailers in Alachua County getting covered by compliance checks each year, but some of the smaller municipalities were getting shortchanged, with some of the cities and towns seeing no retailer inspections from either the FDA or ABT in a number of years. Tobacco retailer licensing would fund compliance checks for these stores.

What were some of the challenges?

Concerns about the impact on local businesses, particularly for the buffer zone. However, the framing of the ordinance as really being about kids’ health helped combat this and made it politically unappealing to vote against it.
Concerns and misunderstanding about preemption. To assuage this concern, they looked at state statue, an analysis done by the Public Health Law Center, and an opinion from the Florida Attorney General’s office to ensure localities have the authority to implement tobacco and e-cigarette sales restrictions, including local tobacco retailer licensing. While there were some preemptive bills considered in the 2019 Florida state legislative session, none of them passed.
They also ideally would have liked to include in the ordinance a stacking of violations, so that violations that FDA and ABT discover through their own inspection checks could also count against the license, too, but it was too logistically challenging to include at this point.
The ordinance was written in a way that allowed cities within Alachua County to opt-out, and two (Newberry and High Springs) ultimately chose to do so.

What’s next? Implementation and Education

The county decided on a 9-month roll-out period before the policy goes into effect to allow for sufficient time to educate businesses on the new policies.
The Alachua County DOH took the initiative to contact other communities across the United States with similar tobacco retailer licensing policies and similar community characteristics to Alachua County to find best practices for retailer education, compliance checks, and the most effective ways to ensure compliance. They then created a concise handout with these recommendations and presented that to Growth Management. They found, for example, that most communities found in-person education efforts most effective. However, communities also notify retailers in additional ways, including through online resources (which Alachua County is also creating), mailed certified letters, public forums, and through the news media.
As pioneers in Florida, Alachua County is now also in a position to support other Florida counties that are hoping to pass their own tobacco retailer licensing ordinances.

What advice do they have for other groups?

Solicit advice from other communities that have passed similar policies in the early stages, before drafting the policy language. One piece of advice they received during that process was that in order to ensure compliance with a license suspension, it helps to require retailers to remove all tobacco products from the store during the time of the suspension.
Involve youth if you can! They have powerful voices.
Be patient with yourselves and give the group time to build a strategy, understand the context, and all the players. It takes time to do well.
Get advice from key players about how to target or frame your message early on.
Incorporate ‘Show & Tell’ into your presentations. Wendy Resnick notes that the whole reason she got involved in tobacco work was due a presentation where the Tobacco Free Alachua and DOH staff passed around grape flavored cigarillos for the audience to see. “I’m not around people that use cigarillos, so it was like a switch going off going off in my head thinking about how evil tobacco is, trying to entice kids. From my perspective, the flavors are a big thing, but especially the marketing to kids.”
Make it as easy on the city or county as possible.

The ordinance took effect on October 22, 2019. We look forward to seeing other cities and counties across Florida and the Southeast follow Alachua County’s lead!