Minor Violations - STATEWIDE Interactive

Originally aired March 8, 2002

MINOR VIOLATIONS: TEENS AND TOBACCO ENFORCEMENT

PERSPECTIVE

The system used to make sure Nebraska retailers don’t sell tobacco to minors may not be as effective as state officials intend it to be, according to a "Statewide" a three-month "Statewide" investigation into teenagers, tobacco and the law. The investigation was conducted with the help of KNOP-TV in North Platte.

In part one of his series, correspondent Bill Kelly reveals significant drawbacks to how the state is conducting its tobacco compliance checks. As required by federal law, the Nebraska State Patrol uses teenage volunteers to go undercover and buy cigarettes at stores with a tobacco retailer’s license. "Statewide’s" research indicates the state used the youngest teenagers possible -- 14 or 15 years old -- in over two-thirds of its compliance checks. In one region of the state, the compliance checks used a 14-year-old boy exclusively. A recent study by the Congressional General Accounting Office criticized states that relied too heavily on young teenagers for tobacco checks, stating the practice can "bias the outcome of state inspections."

Partners

The "Statewide" "Minor Violations" reports are part of a special project involving other Nebraska news organizations to examine tobacco-related issues ranging from second-hand smoke to smoking by minors. "Statewide’s" partners are KNOP-TV in North Platte, the Grand Island Independent and the Scottsbluff Star-Herald. The project is underwritten by a grant from the Robert Wood Johnson Foundation, the nation’s largest philanthropy devoted exclusively to health and health care.

VIDEOS

Watch Part 1 of the Perspective story here:
RealPlayer | QuickTime

Watch Part 2 of the Perspective story here:
RealPlayer | QuickTime

ADDITIONAL INFORMATION:
• The PBS science program NOVA has a great web site devoted to smoking issues.
http://www.pbs.org/wgbh/nova/cigarette/
• The full break down on Nebraska's tobacco compliance checks are on the state's Health and Human Services website:
http://www.hhs.state.ne.us/sua/synar.htm
• Congress recently investigated how compliance checks are conducted nationally. Here's that report:
http://www.gao.gov/new.items/d0274.pdf
• How does Nebraska compare with other states in its tobacco retailer compliance checks? Here's the rankings from the Substance Abuse and Mental Health Services Administration:
http://www.samhsa.gov/centers/csap/SYNAR/01synartable.html
• Other stories produced by the Tobacco Project: Teenagers and Chewing Tobacco
kidsandchew.html
• The Nebraska State Legislature is considering changing the state's "Minor in Possession of Tobacco" law. Here's a copy of that bill that shows how the language would change.
http://www.unicam.state.ne.us/PDF/INTRO_LB1080.pdf
• Nebraska Legislature
http://www.unicam.state.ne.us/
• Hastings, Neb. Police Department
http://www.hastingspolice.org/
• Kimball, Neb. High School
http://www.panesu.org/~kimball/home.html
• PRIDE Omaha
http://www.pride.org/
• GASP Nebraska
http://www.gaspnebr.org/

TRANSCRIPT

Transcript of Perspective Part 1
Transcript of Perspective Part 2

Transcript of Minor Violations - Part 1

Is it really this easy for a teenager to buy cigarettes in Nebraska? It was in half the stores in our test.
Surveys show about of a quarter of the kids who smoke routinely just buy their cigarettes, even if it is illegal in Nebraska to sell to anyone under 18. Like Smoker Friendly in North Platte, most of the retailers we talked to claim they do a pretty good job of weeding out underage customers. The most vigilant shops train employees and make the rules very clear.
[Peg Hart, manager, Smoker Friendly] We get caught in a sting, you're automatically fired. Or if you pass a sting, then I give you a hundred dollars cash right then as soon as the police say you passed the sting.
The "sting" she's talking about is what the Nebraska State Patrol calls "compliance checks." Working with the Nebraska Department of Health and Human Services, investigators send underage volunteers into stores that sell tobacco.
We followed along when they made the rounds late last summer in Dawson County. The fifteen-year-old goes in alone and at each store asks for the preferred brand of Nebraska teenagers: Marlboros in a hard pack.
[Patrol Investigator] "She sold to him! She even said…. Had to be born before 10-21-83. That was stupid.
In this case the clerk looked at the ID listing a birthday three years under the legal limit, and sold to him anyway.
[Paul Gaboury, Nebraska State Patrol] You notice they all checked the ID's. They just didn't quick read it close enough to do the math.
Whether it's bad math or malice, that is when the State Patrol investigator steps in.
[Gaboury] It's treated like a criminal case, we mark the evidence, we store the evidence…
Paul Gaboury runs the compliance checks in west central Nebraska. By sending in a boy clearly underage, with his ID, it makes these cases a worst case scenario that should be easy for clerks to spot.
[Gaboury] Yes they are. He's not close to 18. He is 16. It should be pretty easy to pick up on, and that's kind of what we look for. We don't want to make it a close call situation, so if we go to court then the judge will say, well that's not right they are really pushing it.
[Gaboury, speaking with clerk] "I'm an investigator with the State Patrol. That young man you just sold cigarettes to is a minor."
Last year the Nebraska State Patrol sent teenagers into 862 stores around the state. About 19 percent of the minors did purchase tobacco. For state officials that's good news.
[Gaboury, speaking with clerk] It's not a set up, all we want to do is make sure your comply with the law.
Had more stores sold to kids, Nebraska would be in violation of Federal anti-smoking guidelines and state government would lose nearly three million dollars in federal grants. For state officials, that's proof the system works fairly well.
[Jeff Soukup, Nebraska Health & Human Services System] It shows through enforcement through education through policy change at the store level that we can make a difference.
Jeff Soukup of Health and Human Services helps coordinate the state's tobacco prevention efforts.
[Bill Kelly] Is 19 Percent good enough?
[Soukup] No, to be simple in answering that question. It's not good enough. Its good and were encouraged by that…
[Mark Welsch, GASP of Nebraska] If you know there is a high likelihood you are going to be caught you are not going to make that sale.
Anti Tobacco activists like Mark Welsch as it stands stores have a one in ten chance of being checked each year.
[Welsch] Not nearly enough. We have to check these businesses four times every year. Just like we check restaurants to see if they are selling us healthy food, we need to check these businesses to see if they are selling an addictive deadly drug and not selling to our kids.
The State Patrol agrees that more checks would help, if they had the funding. Martin Costello coordinates tobacco enforcement.
[Martin Costello, Nebraska State Patrol] I do know some states, Florida for instance that has a real active program that they check very frequently. Their non-compliance rate is less than 10 percent. So that tells me anyway that frequent compliance checks are a motivating factor in the retailer in making sure they do their job properly.
Different parts of the state have vastly different results in these checks. Over 28 percent of the stores were in violation in the southeast corner of the state, and 26 percent in the west central state patrol troop area…. That is nearly 50 percent higher than the rest of the state.
Across the northern third of Nebraska…Troop Area B… the sales figures were amazingly low. Only six percent of the stores here sold cigarettes during the checks. The Omaha area had a reasonable 16 percent compliance violations.
But our analysis of the state's data this past year indicates those low numbers may have a lot to do with the age of the kids the Patrol used in the compliance checks.
Most of the kids used in the checks in Troop Area B and by Omaha's Troop A were nearly all 14 years old, and easy to spot as minors. When the clerks readily sold the cigarettes elsewhere in the state, mostly 16 and 17 year old decoys were being used by the Patrol.
[Bill Kelly] I guess to be blunt, if those two districts hadn't only sent in 14 year olds, Nebraska might not have made it's target if you followed the trends.
[Soukup] It was unintentional, is the best way to say that, the fourteen-year-old was used.
[Bill Kelly] Would it be a fairer test, and would it give you more reliable data to have mixed up the ages of the kids a little bit more.
[Soukup] Yeah, and that what had happened up until then and what is happening now, and that was just one year when that didn't happen.
We got a first hand look at the difference age can make. The Hastings Police Department does its own checks, separate from the State Patrol. The night we went along, the decoy was a young looking 14-year-old. Not one store sold to him out of 13 attempts.
[Store Clerk] "You know better than that!"
[Police Officer] "…Yea, you tell em! You know better than that? I like that!"
[Scott Eveland, Hastings Police Department] We don't want to do anybody over the age of sixteen."
Scott Eveland runs the anti-tobacco program for the Hastings Police Department.
[Eveland] So using 14, 15 and 16-year-olds kind of evens the playing field, gives the businesses the benefit of the doubt by having younger, younger people going in."
A week later STATEWIDE did its own check. We sent a student just short of her 18th birthday out to 23 locations around North Platte. Several followed the law…asking for ID, remaining skeptical, and doing the math. They did not sell.
However, about half the stores sold her the smokes, some without even asking for identification. With the State Patrol using very young decoys in up to two thirds of its compliance checks, it raises a question; are tobacco sellers facing a very easy test of the state's tobacco laws?
[Martin Costello, NSP] So I think that's a little big reassuring that the obviously extremely young looking kids are not being successful in buying tobacco.
Would it be a good idea to consider mixing up the ages of the kids doing the checks?
[Costello] That hasn't been discussed specifically. It probably wouldn't be a bad idea to try it out.
Health and Human Services would like to review how the mix of decoys effects the compliance checks, and the Patrol has loosened some of the restrictions when doing checks that are not bound by the Federal guidelines.
[Costello] We used to have things like no facial hair, and no hats and all kinds of strange things. Basically the guidelines we work with now say a kid has to look like a kid, and that's the bottom line when it gets down to.
[State Senator Ray Janseen] I mean if you're going to run a compliance check, somebody who comes in to do that should look like he's 14 years old, rather than 23.
State Senator Ray Janssen also owns a grocery store in Nickerson and has a tobacco retailer's license.
[Bill Kelly] Do you think they are even worth the effort? Should the State Patrol even be, [Janseen] I don't think so because if the young person wants to get a hold of cigarettes he'd going to do it.
That's not the view shared by the Retail Grocers Association, representing most stores in the state.
[Kathy Siefken, Neb. Retail Grocers Association] We were having trouble, but those days are in the past. It's gone. State Patrol is doing a great job.
Executive Director Kathy Siefken does want to make sure the Patrol…and local police departments…don't start getting too tricky.
[Siefken] Don't try to entrap. Don't try and trick. Just go in and see if they are selling to kids and if they are selling to kids then something needs to be done.
On the other hand, some tobacco activists wonder if the system isn't being driven by retailers.
[Mark Welsch, GASP] They say its too hard to tell if they are 16 or 17 or 18 which is the legal age to buy tobacco in Nebraska. I say hey all you have to do is check an ID.
That actually matches the official line of the tobacco industry. Its "We Card" program instructs retailers to demand identification from anyone who looks 27 years old or younger. It's a guideline the grocer's trade association in Nebraska supports.
But it still is up to the clerk at the cash register to make that call, and in most cases it is the clerk…not the store owner who gets fined. Unlike with liquor violations, the holder of a tobacco license can not have it taken away by state or local government for repeat violations at their store.
[Jeff Soukup, HHS] We know there are going to be some store owners that are going to take that seriously unless there is some enforcement done and that their privilege to sell tobacco would be at risk if they are not doing the right thing, as far as training, checking their clerks, and so on, and for the most part that is happening.
[Kathy Siefken, Grocers Association] You have to trust your clerks to make those decisions. If the clerk makes that judgement call that the person looks like they are over 27 and they make that sale then the clerk is the one who should be held responsible for making the wrong decision. That's a strong lesson when they pay their own fines."
The Trade Association for Nebraska's storeowners points out that 8 out of ten stores pass the Patrol's test on tobacco…
[Siefken] I think we are doing a better job on tobacco. The education is better. The clerks are the one's that are fined. They are the ones that have to go to court. Therefore fewer sales for tobacco than liquor.
Because city halls all over Nebraska issue and store tobacco retailer licenses. Unlike liquor licenses, there is no master list maintained by the state. It's state law that makes it nearly impossible for anyone to assemble an accurate list of the 5 to 7 thousand tobacco sellers in the state, but no one can say for certain.
[Soukup] I guess kind of the embarrassing answer to that is no we don't.
It's frustrating for Health and Human Services.
[Soukup] We see some need for that information to come to the state as far as where the licenses are at, but we would rather see the control of the license, who gets it, how its regulated all at the local level. So it's kind of finding that balance.
In the meantime, no one is keeping track of all the licenses; it's difficult to know if everyone is being properly tracked by law enforcement, local or state.
Since the stores selected randomly by state health officials, and with there is no guarantee any one store will ever be checked.
The Retail Grocers Association is also conducting its own training and is even doing it owns secret "sting" operations on members who volunteer for checks that don't carry fines. The State of Nebraska will be beefing up its program as well. Soon an additional 400 thousand dollars will help pay for local compliance checks. Hastings Police Chief believes the program is a good investment.
[Hastings Chief of Police Larry Thoren] I think we've made it more difficult in this community for under-aged people to purchase tobacco. And we've done that a couple ways…carding and more tricks that young people will use to purchase tobacco.
There's one last hint that individual stores need to take the state's law on teens and tobacco more seriously. We also went back and checked the four stores in Dawson County that sold cigarettes to minors last summer. Half of them sold to a minor again, without hesitation, never asking for any identification from our underage volunteer. For STATEWIDE, I'm Bill Kelly.

Transcript of Minor Violations - Part 2

[Bill Kelly/Statewide] You can find a smoker's corner just across the street from nearly every high school in Nebraska. These are veteran tobacco customers.
[Girl from Garden County] I started at 6, trying to be like my Mom. I was happy I was like my Mom.
[Kelly] Nationally, about three out of every ten teenagers smoke and the best guess of experts is Nebraska kids light up at the same rate.
[Kimball Student #1] Tobacco is something that's not hard to come across.
[Kelly] Students at Kimball High School told us getting cigarettes is pretty easy.
[Kelly] Where do you get them?
[Student #2] Friends
[Kelly] Can you buy?
[Student #2] Yes, some places. Not in Kimball.
[Student #3] If we don't go out of town and get them ourselves, we just have our friends buy them and get them for us.
[Kelly] The teachers have seen the attitudes about tobacco change since they were students.
[Rod Bussinger, Teacher] There are eighth graders that their mom and dads would go out and by cigarettes.
[Mary Schutz] Some parents really don't care. As long as they aren't getting in trouble with the law, and they are going to school and doing their homework and passing, its ok if my kid smokes.
[Kelly] So if some parents seem indifferent, and the kid is not scared off by the health warnings, what to do? Much of the emphasis on keeping tobacco out of the hands of kids concentrates on the point of sale, where one out of four teen smokers claim they buy them. That's done through law enforcement and taxes. That's what much of the high profile anti-tobacco lobbying emphasized this year.
[Kathy Burson, PRIDE-Omaha] At the end of this legislative session, if there is an increase in the tobacco tax this would be the most effective measure to reduce youth consumption in Nebraska.
[Kelly] But there are some pubic officials arguing the primary responsibility for stopping teen smoking needs to be shifted from the seller to the teen smoker. State Senator Doug Cunningham of Wausua also owns a grocery store.
[State Senator Doug Cunningham/Wausa] One side constantly thinks it's the retailer, then the other thinks that constantly raising the price will solve the problem, and I just don't happen to believe that's where the problem is. We need minor accountability. [Kathy Siefken, Retail Grocers Association] We all want the same thing. We want to keep these products out of the hands of minors, out of the hands of youth. We just can't all decide how to go about doing that.
[Kelly] The executive director of the Retail Grocers Association agrees that laws that punish kids caught with tobacco must be part of the overall prevention program.
[Siefken] The punishments have to be meaningful. They have to be something that youth will look at and under stand and it has to directly effect them.
[Kelly] Nebraska does have a law designed to target kids using tobacco. It's a Class 5 misdemeanor for a minor to "smoke cigarettes or cigars or use tobacco in any form." Sound good? Well, there are some serious problems.
[Cunningham] Well for one thing it is absolutely not enforced.
[Kelly] And that, according to nearly every police agency in the state is because of the wording. So a police officer might be in a public place and see someone he thinks is underage opening, even buying a pack of cigarettes, but under state law, no law was broken until the teenager exhaled.
[Kelly] Because Nebraska's state law is so weak, 18 Nebraska communities passed their own minor in possession of tobacco ordinances. Statewide's review found that the way those laws are enforced varies greatly from one town to the next.
[Hastings Police Chief Larry Thoren] Well, if you have it in your pocket you're going to use it."
[Kelly] Police forces like Hastings that wanted to keep kids away from tobacco had a state law that was worthless.
[Thoren] Well we found it was necessary in the city of Hastings to pass an ordinance that further restricts the use of tobacco products by under aged person...under the city ordinance he could enforce that for possession of tobacco.
[Hastings Police Officer Scott Eveland] High school students will be caught in the park here, back in the trees, in the picnic pavillion, and especially in the restroom.
[Kelly] Officer Scott Eveland can stop a minor with tobacco when he's patrolling the parks. Now Hastings and 17 other Nebraska cities have outlawed not just smoking, but possessing tobacco.
[Eveland] While this might seem like a minor thing, anytime somebody is making a bad choice, and we know cigarettes are a bad choice because of the health consequences, we know it can lead to worse choices. Smoking can lead to drinking with can lead to the gateway drugs, with can lead to the harder drugs. And if they are not considering the consequences, the health consequences and the legal consequences they can continue to make bad decisions which can lead to bad things.
[Kelly] And when kids in Hastings get caught, they get taught a lesson, quite literally.
[Teresa Anderson, Instructor] These are pig lungs and I want you to feel these because they have tumors in them.
[Kelly] The Adams County Diversion Class hopes they can change behavior not by preaching to teenagers, but simply providing them with information.
[Anderson] So what do you think happens to that when it gets inside your lungs?
[Boy in Class] It sticks.
[Anderson] Yeah, doesn't move. Clogs them up.
[Kelly] Teresa Anderson coordinates the South Central Health Alliance and local anti tobacco campaigns. Last year 61 girls and boys went through her class.
[Anderson] A couple things happen during this class. One is we develop a relationship with these kids. A lot of these kids, not all, but a lot of these kids have really weak relationships with adults and so it gives us an opportunity to firm up the self esteem of that child a little bit if you will.
[Boy in Class] My friends are the ones that got me started but I don't know its not like they pressure me to smoke now. I do it on my own.
[Anderson] And why do you smoke now?
[Boy] Because I'm addicted to it? I guess if all my friends were to quit I might.
[Anderson] They don't think of the consequences, they just start smoking. So what we want to show them is there is a whole different side of tobacco use that they have probably not been exposed to. And in discussing those issues with them to give them to say hey I choose not to smoke now.
[Kelly] Teresa Anderson lobbied hard to get the minor in possession law passed in Hastings. She believes these classes to help individual kids. So when we talked about results, her answer surprised us.
[Kelly] Do you have a sense that simply having a Minor in Possession law on the books keeps kids from smoking?
[Anderson] I don't think it does at all. I think kids may be aware of it. I think there are a lot of kids, even in our community that don't even know that.
[Kelly] That uncertainty about the law’s effectiveness is what keeps the state's multi-million dollar tobacco program from making minor in possession laws a priority.
[Jeff Soukup, Nebraska Health & Human Services System] It's not a real clear when communities that have youth possession laws that you see a reduction in smoking rates.
[Kelly] Perhaps most surprising is the response from the state's most strident anti-tobacco activist, Mark Welsch of GASP.
[Mark Welsch, GASP] If you make mere possession of tobacco a crime in Nebraska, who is going to enforce that? Nobody. Tens of thousands of kids are smoking in our state right now. You can't arrest ten thousand kids. Or 20,000 kids. But you can't make sure a couple thousand retailers stop selling to kids.
[Kelly] There is, in fact, a very mixed enforcement record among those communities which have passed tougher minor in possession laws. “Statewide” surveyed police and county attorneys all over the state. Alliance always has an officer patrolling the school and handed out 71 citations to teenagers in the past two years. Fremont although more than twice the size of Alliance, issued only 20 citations during the same period. In Brown County they haven't filed a single minor in possession case since the ordinance was passed in 1997. At the high school in Kimball, they don't see much enforcement.
[Kelly] Have you ever seen that enforced here?
[Rod Bussinger, Teacher] I think the five years since I've been here, I read about it once in the paper.
[Mary Schultz, Teacher] I don't think I ever have.
[Anderson] You know in most communities its not treated seriously. And they beauty of the ordinance here and its effectiveness is that it's a community effort and that we have law enforcement and the city attorney, and the county attorney included in the planning process.
[Kelly] Which is why Teresa Anderson still feels the Minor in Possession Law is useful.
[Anderson] The end benefit hopefully is hopefully were developing a culture in our community where tobacco use is not tolerated. And that's a long way down the road that we don't want anyone smoking in public and it sounds kind of radical but in truth that's eventually where were headed.
[Officer Eveland] It's hard to quantify the numbers but I think we are making an impact. They're still smoking. We are still displacing some of them. They are just going elsewhere. But I think in the last couple of years I've seen a decline in the number of smokers, and I like to think that's because they are not smoking, not just that they are hiding better.
[Chief Thoren] Well one of the comments that I heard is well we don't want to become the cigarette police, and I said we're not the cigarette police, you know, our top priority of this organization is working with young people, and providing with additional values and help them learn how to make good decisions and we think this is part of that good decision making process."
[Kelly] State senators fighting tobacco support a bill now before the legislature that would fill the loophole in State law. It would not, however, provide funding or support for the types of information classes that have made the Hastings program a model. And just a few blocks from the Capitol, in a city where there is a minor in possession law, high school kids are hooking up between every class for a quick smoke. For “Statewide,” I'm Bill Kelly.