Bruce Cunningham

301 Seneca Creek Road

Hinesburg, VT     05461     

April 14, 2003

Daniel J. O’Brien

Chairman, Liquor Control Board

Green Mountain Drive, Drawer 20

Montpelier, VT 05620-4501


Dear Mr. O’Brien,

Re: your letter of April 8, 2003:

I understand your opinion regarding the “overall objective” of Act 58. Considering the entirety of Act 58, which has twelve other sections in it, that may be a fair statement. However, the DLC compliance testing requirements are in Section 13 only and I am very familiar with the objective of Sec. 13. I wrote the first draft of this section in November of 1996. I also wrote the second, third, and fourth drafts in December of that year and January and February of 1997. It was introduced as a separate bill, S.153, on 2/26/97. This bill was merged with S.156 where it became Sec. 13 of that bill - which eventually became Act 58. S.156 was finally passed by the Legislature on June 13, 1997. I testified in the Health and Welfare Committees of the House and Senate and in the Judiciary Committee in the Senate regarding the objective and the specific requirements of Sec. 13. Commissioner Hoyt asked all three of those committees to remove Sec. 13 from S.156. I am confident that my testimony regarding the objective of this section was responsible for its survival in S.156.

The objective of Sec. 13 is as I stated it in my testimony to you on March 26: ”Attempts by any minor to purchase tobacco products should fail at least 90% of the time.” The specific requirements of this section were carefully formulated to meet that objective. The ultimate objective of all of Act 58 is not just to limit availability, but also to do it in such a way and to such an extent as to reduce the prevalence of youth addiction to nicotine. The reason the specific requirement of “at least 90%” was written into Sec. 13 is this ultimate objective is not served at lower levels of compliance.

Whatever the Liquor Control Board’s or my opinion is regarding the objective of Sec. 13, this section of the law has specific requirements. If these specific requirements are not met, the law is being violated. It is clear that the Department of Liquor Control has not met these specific requirements for the last four years.

You make the observation in your letter that data from Woodridge, IL should not be compared to what is achieved or expected in an entire state. There are reasons why I think that is not true but rather than go into that, I ask you to consider comparable data from other states. The U.S. Department of Health and Human Services Center for Substance Abuse Prevention publishes annual reports titled “State Synar Non-Compliance Rate Table” showing the non-compliance rates for all states. The data for 2001 shows that there are 16 states with higher compliance rates than Vermont’s reported level of 85.1%. (Your report to the Legislature for 2001 indicated compliance of 82%.) Eight of those 16 states have compliance higher than 90%. The top four are Colorado, Louisiana, Hawaii, and South Dakota with compliances of 94, 93.5, 93, and 91.9% respectively. South Dakota received a Synar award in 2002 for the quality and consistency of its compliance program. It is noteworthy that all tobacco compliance testing in South Dakota is under contract with Tom Radecki’s company in Illinois – the very same company that did the testing for Vermont in 1998 when 2,000 tests were done in eight months producing an average compliance for that period of 92%.

Your letter also addressed your concern about resources and budget. The DLC has been receiving $309,000 per year of Tobacco Master Settlement Agreement funds earmarked for “enforcement and licensing”. Since tobacco licenses are granted by towns, this total should be available for tobacco enforcement. Experience in Vermont and other states indicates that 90% compliance can be achieved in Vermont with 3,000 compliance tests per year. Sec 13 says “The Department of Liquor Control shall conduct or contract for compliance tests ….”. If the DLC cannot “conduct” 3,000 tests within a $309,000 budget, it has the option under the law to “contract for” those tests. A contract for those tests, using the DLC’s current protocol, can be obtained for $61,000. I don’t see a limitation due to resources or budget here that prevents obeying this law.

Two days after my testimony to you on 3/26, I learned that the mandatory license suspensions specified in Sec. 13 have also been disregarded for the last four years. Mr. Goggins was apparently unaware of this specific requirement. This additional failure to comply with the law also needs to be addressed.

Finally, regarding your suggestion that I have a “misconception” about the goal of the DLC: Since Act 58 became law in 1997 I don’t believe I have ever suggested that the goal of the DLC is or should be 90% or any other level of compliance. Here’s what I said to you on 3/26: “I realize that no amount of compliance testing will achieve 100% compliance. It is also clear that a moderate level of compliance testing will produce compliance of about 85%. Achieving 95% compliance is neither easy nor impossible – it is only difficult.”

What I have said and say again now is that the DLC should obey the law, which requires 90% compliance. This is not a goal – it is a mandate. The law doesn’t say anything about a “goal”. However you choose to define your goal, what is critically important to the young people of Vermont is that the DLC comply with the specific requirements of Sec. 13 of Act 58. That is what will protect them from addiction. I simply ask and will continue to expect the DLC to obey the law. I encourage you to reconsider your decision to “support the current approach”.


Bruce Cunningham


Cc:   Lloyd A. Kelley, Jr., Liquor Control Board Member

         Harry L. Daniels, Liquor Control Board Member

         Michael J. Hogan, Commissioner, Vermont Department of Liquor Control