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Tuesday, Sept. 11, 2007 | Nearly five years after first being pressured to crack down on the sale of tobacco to underage customers, the City Council authorized the San Diego Police Department on Monday to launch sting operations to bust merchants that sell cigarettes and chewing tobacco to children under age 18.

Businesses caught selling tobacco products to individuals under age 18 through the program can be ordered to pay fines or to stop selling tobacco for a period of time.

Lighting Up Retailers

  • The Issue: The City Council approved a $163 surcharge on tobacco retailers that will allow the police to run sting operations against businesses that sell tobacco to minors.
  • What It Means: Currently, the city does not vigorously enforce prohibition of tobacco sales to customers under age 18. A study showed that 44 percent of San Diego retailers sell cigarettes and other tobacco products to minors.
  • The Bigger Picture: The city receives millions from tobacco companies every year after settling a lawsuit that aimed to recover money to pay for the effects of smoking on the public. It estimates it will receive $11 million this year; it has instead used that money for other programs, including paying down the pension deficit.

“These people need to be held accountable for what they’re doing to our neighborhoods, our children and our communities,” Councilman Brian Maienschein said.

Council members passed the ordinance by a 7-0 margin, with Council President Scott Peters absent from Monday’s meeting.

While the city has for many years had millions of dollars at its fingertips to fund the program, it will instead look to local liquor stores, cigar shops and grocers to pick up the tab for the $220,000 program. Those businesses will be charged $163 per year.

Instead of using the revenue the city receives annually as part of the 1998 settlement of the landmark tobacco case, the municipal government has used the stream of cash to keep other city programs afloat and, most recently, to help plug the city’s $1 billion pension deficit.

In winning the $200 billion tobacco settlement, the city of San Diego and other local and state governments argued they needed financial help to battle the health risks that accompanied tobacco use. The city’s cut this year is approximately $11 million, comptroller Greg Levin said. There are no restrictions on how the governments use the settlement money.

“It’s horrifying. We always hated that the city didn’t respect the purpose of the settlement,” American Lung Association spokeswoman Debra Kelley said.

Despite conducting a survey that showed 44 percent of the retailers in San Diego were violating the law prohibiting the sale of cigarettes and other tobacco products to minors, the city hadn’t budged on stepping up its enforcement until now, she said.

“There’s no reason to believe that situation would change” without the law’s passage, she said. “The legacy of this law will be nothing short of life-saving.”

The sting-operations are used frequently and successfully, American Lung Association officials said. The group reported that underage tobacco sales typically drop dramatically after sting operations are performed in a community. In Contra Costa County, an area east of San Francisco, surveys showed the number of retailers selling to underage customers dropped from 37 percent to 7 percent after a sting program was implemented there.

Assistant Police Chief Cheryl Meyers acknowledged that local enforcement of the prohibition was spotty. She said retailers currently receive reprimand only if the Police Department receives a complaint. In the last year and a half, only five arrests were made for selling tobacco to minors.

Some merchants who will be bearing the cost of the new law say they are disappointed in the license fees. They already pay about $100 annually to the state for a tobacco license, and they see the city license as overkill.

“We don’t want to get dinged a hundred there and a hundred here,” said Tony Konja, the president of a company that operates five liquors stores in the city.

Responsible retailers — the ones who check the identification of tobacco customers and refuse to sell to minors — should not be forced to pay unless they are found to have broken the law, said Dave Heylen, a spokesman for the Sacramento-based California Grocers Association.

“It’s reaching everyone, where we feel it’s appropriate if you impact those retailers who are irresponsible and are selling to minors,” Heylen said. “They should have to pay for their infractions.”

Under the rule, businesses that are caught selling tobacco to minors a first time could have their license suspended for 60 days. The suspension period is increased to 90 days and 180 days for a business’s second and third violations within five years. The city can revoke a tobacco license if a merchant is caught a fourth time.

However, the law allows the police chief to negotiate a penalty — to the tune of $150 per day of the prescribed suspension — instead of issuing a suspension if the chief sees fit.

The Police Department is also required to report back to the council every year with updates on the program’s success.

Activists have requested stronger crackdowns on tobacco sales to minors since 2002. But the city did not identify how it could pay for it. In the meantime, the city of San Diego has allocated its tobacco settlement to areas such as library operations, an after-school program for children, and setting aside land for habitat conservation.

“We’ve tried to get the settlement to pay for this,” said Dr. Cleo Malone, executive director of the Palavra Tree, a local substance rehabilitation center for teens. Malone began lobbying the city for the program in 2002. “The library fund has taken most of that, but I can’t let that be the problem.”

More recently, the city of San Diego locked up its tobacco settlement revenue in an attempt to pay down the city’s billion-dollar pension deficit. Because of delayed financial audits and a suspended credit rating, the city has not been able to access the public bond markets to borrow money for expenses like the pension plan.

Instead, it leveraged the tobacco revenue stream, which investors view as being reliable, so that it could infuse its employee retirement fund with $100 million last summer. The money the city plans on saving from the contract concessions it won from its employee labor unions in 2005 will be used to backfill the tobacco money.

The city estimates that about 1,363 businesses will be required to obtain licenses under the ordinance.

Please contact Evan McLaughlin directly with your thoughts, ideas, personal stories or tips. Or send a letter to the editor.

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