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Beer isn't a smoking accessory, attorney general rules
| Thursday, Dec 22, 2011

California Attorney General Kamala Harris ruled Wednesday that tobacco shops that serve alcoholic beverages can’t allow patrons to smoke indoors.

Harris rendered the opinion at the request of the city of Pasadena, which wanted to know whether a private smoker’s lounge located in or attached to a tobacco shop that serves alcohol was exempt from the Legislature’s 1994 ban on smoking in workplaces. The law took full effect in 1998.

“We are informed that in some communities private smokers’ lounges serve alcoholic beverages to their customers and, further, that the California Department of Alcoholic Beverages Control … has issued alcohol licenses to some of these entities,” Harris stated in her ruling. “This practice has caused concern among local enforcement authorities and raised questions about how workplace no-smoking rules apply.”

Local government agencies commonly ask the attorney general for legal opinions when a state law can be read in different ways.

Such was the case here. The smoking ban carved out certain explicit exceptions, including one for “retail or wholesale tobacco shops and private smokers’ lounges.”

The law defined a smoker’s lounge as an “enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes.”

And that’s the sticky part. What does “not limited to” mean?

“When we are called upon to interpret the meaning of a statute, our primary task is to determine what the Legislature intended,” Harris said. “In doing so, we look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. If there is no ambiguity in the language of the statute, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.”

Focusing on the phrase, “dedicated to the use of tobacco products,” Harris said: “’Dedicated’ means “holly committed to a particular course of action. Therefore an area ‘dedicated to the use of tobacco products’ is set aside for the use of tobacco products, and for tobacco products only.”

Another part of the law identifies tobacco shops as places that sell “tobacco products, including, but not limited to cigars, pipe tobacco and smoking accessories.”

“While this language is marginally less restrictive than the definition of a smokers’ lounge,” Harris said, “the differences are not significant enough to produce a different conclusion.”

The term “smoking accessories,” Harris ruled, “cannot reasonably be interpreted as including alcoholic beverages.”

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2 Comments

  1. CHARLES says:

    The State of California now finds itself in a rather difficult predicament to defend its position relative cigar lounges that serve alcoholic beverages. The ABC, a state agency, has licensed many cigar lounges to serve alcoholic beverages since 1998. Cigar lounges that serve alcoholic beverages restrict entry to those 21 years of age or older.
    Now what?
    Perhaps the legislature needs to revisit this entire matter before expensive litigation commences.
    Charles J. Janigian
    President
    California Association of Retail Tobacconists, Inc.

  2. Rob Cherep says:

    Once again we find ourselves facing a self serving interpretation of the intent of the legislature rather than looking to the whole of the actual legislation. The definition of the word “dedicated” has several meanings as follows:

    ded·i·cat·ed
       [ded-i-key-tid] Show IPA

    adjective
    1. wholly committed to something, as to an ideal, political cause, or personal goal: a dedicated artist.

    2. set apart or reserved for a specific use or purpose: We don’t need a computer but a dedicated word processor.

    3. (of machine parts, electrical components, hardware, etc.) made or designed to interconnect exclusively with one model or a limited range of models in a manufacturer’s line: The new tractors use only high-priced dedicated accessories.

    A private smokers lounge attached to a retail tobacco shop is an enclosed area that is set apart or reserved for the consumption of tobacco products. If it was meant to be for the exclusive use of tobacco, then the legislature would have used the word exclusive, not dedicated.

    Following the interpretation of the Attorney General would lead to the conclusion that no other activity could occur in the private smokers lounge including the consumption of soda, water, gum, candy, or any other similar products, and not just exclusive of acholic beverages. If this is truely the Attorney Generals intent, then it needs to be stated clearly.

    Singling out acholic beverages alone and not other actiities exposes the true hidden agenda of the Attorney General which is the overall prohibition of tobacco consumption.

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