LAWSUIT OVER TOBACCO SALES TO PROCEED

Court says Albany attorney may sue over allowing minors to buy cigarettes

Ruling in an East Bay lawsuit against grocery giant Lucky Stores, the state
Supreme Court agreed Monday that a private citizen can sue stores for
selling cigarettes to minors under the state's unfair competition law.

The decision is thought to be the court's first involving the law's
application to an alleged criminal violation. It upholds a state appeals
court ruling that revived a lawsuit filed by Albany attorney Donald
Driscoll against the grocery chain.

An Alameda County Superior Court judge threw out Driscoll's suit, saying
only public prosecutors could enforce the ban on sales to minors.

``The law is clear, and the court stood up for the law,'' said Driscoll,
who has hired teenagers to buy cigarettes from San Jose to Sacramento as
part of his personal sting operations. ``It's great because there's
something effective that can be done about the sale of cigarettes to
children.''

Driscoll and Lucky Stores will argue the merits of the lawsuit -- a subject
the high court ruling did not address -- in an Alameda County court. No
court date has been set.

Driscoll has filed several lawsuits against supermarkets and liquor stores
in Northern California, claiming they sold cigarettes to minors. The
Alameda County suit targeting Lucky stores is one of several.

The lawsuit, filed by Stop Youth Addiction -- an organization founded by
Driscoll's mother -- seeks to force Lucky to pay the state $10 billion in
profits it allegedly made from the cigarette sales, an injunction against
future sales and attorney fees for Driscoll.

``Obviously, we're disappointed we didn't prevail,'' said Lucky attorney Gail E.

Lees. ``Now we can go . . . back to trial court. We will present arguments
on what we see as the impropriety of someone sending in minors to illegally
buy cigarettes, then turning around and suing the store.''

Section 17200 of the state Business and Professions Code lets individuals
sue companies for business practices that are unfair, unlawful or
deceptive, but it doesn't permit them to collect damages.

Some attorneys, including Driscoll, have combined that statute with another
part of the code that allows individuals, working on behalf of the general
public, to act as ``private attorney generals'' and go after companies that
are violating the law. If they win, the lawyers can try to collect attorney
fees.

Previous rulings

In previous decisions, the state Supreme Court has referred to Sections
17200 through 17209 as the unfair competition law. The court has dealt
with the law several times, but the Stop Youth Addiction case was the first
that stems from a penal code section -- selling cigarettes to a minor,
according to Driscoll.

Lucky had argued to the state Supreme Court that the law is too broad.

Companies could be hit with lawsuits in 10 counties with different outcomes
in each jurisdiction, according to Lees.

Lucky may be correct, the Supreme Court replied. But the justices, who
voted 6-1 in Monday's ruling, said they do not have the power to rewrite a
law.

``Lucky's concerns here are best addressed by the (state) Legislature,''
the opinion says.

In a dissenting opinion, Justice Janice Rogers Brown said Stop Youth
Addiction is breaking the same law it accuses Lucky of violating, and she
notes that the organization is out to make a profit.

``Selling cigarettes to minors is against the law, and those guilty of it
should be punished,'' Brown writes. ``The creation of a standardless,
limitless attorney fees machine is not, however, the best way to accomplish
that goal.''

Even before he read the court's opinion online at 10 a.m. Monday, Driscoll
had resumed running his sting operations. A Lucky store in El Cerrito
failed Sunday night to request photo identification of several young adults
who bought cigarettes, he said, violating a new U.S. Food and Drug
Administration regulation that he said requires such verification of
anybody under 26.

`Still not complying'

``Lucky has a continuing problem because, as we found out last night, they
are still not complying with the law,'' Driscoll said.

But Lees replied that Lucky maintains a strict policy against selling
cigarettes to minors, backed by penalties that include firing.