CHINESE DÉPANNEUR OWNERS SPEAK OUT ON HEALTH INSPECTORS’ CRACKDOWN ON TOBACCO SALE TO MINORS
Montreal, August 11, 2015 — While showing full support for the Quebec Government's actions to get tough on tobacco sales to minors, many Chinese dépanneur owners are asking for fairness and transparency in the methods used by Health inspectors to fine those who unknowingly sell cigarettes to underaged buyers.
The law presently forbids sales of tobacco to persons under 18. Tobacco retailers are encouraged by the Quebec Health and Social Service Ministry to ask for I.D. of those who look 25 and under. Fines for the first offense run from $500 to $2,000 under the Tobacco Act, which are automatically accompanied by a one-month suspension of the permit to sell tobacco. A 30-day license suspension can cost the store up to $4,000 in revenues, and eventual loss of customers.
According to Mr. Shao Qiang Huang, President of the Association of Chinese Dépanneur Owners (it is estimated that 1,000 out of almost 6,000 dépanneur owners in Quebec are Chinese), many owners are new immigrants from China and often have cultural difficulties in perceiving the age of non-Chinese buyers. Consequently, several owners have been caught in government-run sting operations in which minors (often aged 16) who look much older are used as decoys.
Some owners also face what they deem to be a lack of fairness when they are fined. Issues include:
❏ Unreasonable delays in receiving legal documents related to the fines and the suspension (in one case, up to eight months);
❏ Long delays in receiving notice of the infraction (usually one week after), and difficulties in verifying and examining the evidence such as the minor's statements and videos;
❏ Long delays for court hearings (in one case, up to three years before the trial was held); and
❏ Incorrect and incomplete information received from inspectors, which hampers their ability to prepare a full and fair defense.
It should be noted that video cameras in these stores can usually store data for up to one or two weeks, unless the merchants invest in more expensive equipments to allow for longer data storage.
The Chinese owners are now afraid that the Quebec Government's proposed Bill 44, An Act to Bolster Tobacco Control, will create stiffer penalties (ranging from $2,500 to $125,000) and, that Chinese and immigrant-owner dépanneurs can be unfairly treated and become vulnerable to repeated sting operations. Among other things, the bill adopts a zero-tolerance approach to tobacco sales to minors and makes it illegal for minors to purchase cigarettes, except for sting operations.
“We are of course conscious of our legal obligations and fully supportive of the Government's goal to increase tobacco control,” said Mr. Huang. “What we want to say is that there are complex issues that the Government should address and clear rules to adopt so that Chinese and other immigrant dépanneur owners are not unfairly treated or are disproportionately penalized.
The issues Mr. Huang's association want Quebec lawmakers to address include:
❏ Additional means for Chinese and other immigrant owners to be better informed of the requirements of the law, including simplified information and information workshops to held in partnership with the association;
❏ Awareness of Chinese and other immigrant owners' cross-racial identification problems, whereby it is often difficult for newly arrived immigrants and people from one race to correctly guess the age of individuals of another race through facial recognition (cross-racial identification in eye-witness testimony is recognized in American case law and social science literature);
❏ Assess the option of gradual sanctions instead of the zero-tolerance approach, as most owners do not deliberately flaunt the law and sell to minors;
❏ Clear regulations on the use of minors in sting operations, similar to those adopted in many U.S. states, such as the requirements that minors have no facial hair, receding hairlines and excessive make-up, and dress in attire consistent with minors in the area; that they not to lie about their age or coerce the sales clerk in any way; that the sting operation be audio or video-taped for evidentiary purposes, and that the minor be available to testify in court, and
❏ Procedural fairness in inspection and prosecution, including legal notification within a reasonable time, to ensure the constitutional right to due process for dépanneur owners charged with the offense.
The Association applied last June to testify before the National Assembly Committee studying Bill 44 in order to bring forth specific needs and concerns of Chinese dépanneur owners, however it was not invited to appear. It has appealed to Public Health Minister Lucie Charlebois and Health Minister Gaétan Barrette for the opportunity to be heard, but have yet to receive a reply.
“Since there are more and more new immigrants and people of color who own and operate dépanneurs, it is constructive for the Health, Immigration and Justice departments to work with these small businesses to avoid problems identified by Mr. Huang's group,” said CRARR Executive Director Fo Niemi. “Sting operations involving minors to curb tobacco and alcohol need detailed guidelines to avoid possible civil rights violations.”
CRARR is helping the Association of Chinese Dépanneurs of Quebec to put together its brief to the National Assembly on Bill 44.