PRIVATE CITIZENS MAY SUE CIGARETTE SELLERS

Stage high Court Ruling Involves Minors' Access

SAN FRANCISCO -- The California Supreme Court ruled Monday that private
citizens may sue retailers for selling cigarettes to minors.

The decision was the first to rule squarely that a private plaintiff, using
the state's unfair competition law, may sue a business for violating a
criminal statute, said Assistant Attorney General Thomas F. Gede, who filed
a brief in the case supporting the defendant, Lucky Stores.

The attorney general's office was one of a long list of agencies that had
urged the court to reserve enforcement of the state's criminal laws for
public prosecutors.

On the other side of the case, the San Francisco City Attorney's Office
argued that a victory for Lucky could have undermined the ability of
private groups, such as the American Lung Association, to sue the tobacco
industry.

The decision allows Stop Youth Addiction, an organization created by East
Bay lawyer Donald Driscoll and headed by his mother, to proceed with its
claims that Lucky has unjustly enriched itself by selling cigarettes
throughout Northern California to children and adults who became addicted
as children.

Driscoll filed similar suits against hundreds of retailers. He said Monday
that most settled by promising to stop selling tobacco to underage
customers and -- typically -- reimbursing him about $50 for his costs.

But Lucky did not settle, and Driscoll has asked the courts to order the
supermarket chain to pay $10 billion in restitution to the state.

The Supreme Court voted 6-1 to let the case proceed.

In doing so the justices made it clear that the suit could still run into
trouble on any of several grounds -- for example, if it was determined that
Driscoll set up underage decoys to make illegal cigarette buys.

The majority opinion was written by Justice Kathryn Mickle Werdegar.

Dissenting, Justice Janice Rogers Brown was sharply critical of Driscoll.

The only business of Stop Youth Addiction is to file lawsuits, and Driscoll
has sued 2,000 defendants, mostly small retailers, for a total of $50
billion plus attorneys' fees, Brown wrote.

She pointed to a Yolo County judge's decision noting evidence that Driscoll
offered not to sue potential defendants if they would pay him before the
suits were filed.

Among Driscoll's nearly identical suits are cases against 7-Eleven in Yolo
County and Albertson's in Sacramento County.

Driscoll said Monday that he has gained "virtually nothing" from the suits.
He called the Supreme Court's decision a victory for those who want to stop
cigarette sales to minors and for the vitality of the unfair competition
law.

But Gail Lees, lawyer for Lucky, said the focus of the defense case will
shift to Driscoll's methods and motives. She also said Lucky takes
extraordinary steps to prevent tobacco sales to minors, though Driscoll
said he conducted a successful sting at a Lucky store in El Cerrito as
recently as Sunday.

Copyright ) 1998 The Sacramento Bee