give you history of the operator mr. habash has been operating the specific smoke shop since 2009 and previously worked in a convenience store with his farther in hay's valley since 1993, he's been in this industry for over 20 years. he has never had a single violation either while work at his father's shop or since he's been operating his own shop. the incident at issue occurred in september of 2014 and what was sold in that transaction like i illustrated before was the actual device without any consumable liquid whatsoever so when the minor walked out of the location, they walked out with what i would call the equivalent of a pipe without tobacco and i'm not doing this to minimize his actions but to explain the situation of what occurred and that there could be a little bit better information and education distributebacker distributed by the department of public health

as to what is and what isn't regulated. on this specific instance he did transact with a minor did not ask for identification however, the minor in seeking the product did specifically ask for a specific product, pointed to this individual product and expressed the degree of familiarity with the actual product. mr. habash then made the sale and shortly thereafter, the police officer came in and they had a conversation about the incident. he was cited never actually had to appear in criminal court but had to appear before the department of public health and director aragon. on the date in question you know, and i did outline this on the brief and i don't want to focus on it on the date in question mr. habash had suffered an unfortunate incident where he had to take a

good friend of his to the hospital so he wasn't in his traditional state of mind and perhaps but for him being in a different state of mind may not have ever made this transaction. what actually did happen tat hearing, there was a suspicion ordered for 20 days and i want to talk about the hardship that would occur if this suspension would occur, if you're looking at the sale of tobacco product, that's 50% of his sales e cigarettes is 60% of his business you're going to ask him to shutter his business in order to -- i mean, a suspension would be a shuttering of his business during that period. the other thing that i found a

little bit unusual in this circumstance is that at the actual original hearing on this matter, multiple other vendors were found to have violated the sales of electronic cigarette tos a minor, however, each and every one of those vendors voluntarily opted to cease any and all sales of e-cigarettes to minors or any sales to e-cigarettes in exchange for receiving no additional punishment which i found to be a desperate decision and a desperate punishment. if the board has any questions, i'm happy to address them. >> could you repeat that last line, i'm not sure i understood that. >> in essence, what i was saying at the original hearing on this matter, as you may know, department of public health hearings have multiple vendors who are seen and have

their matters called before the director of public health on the same date in question. there are minimum 7 other hearings on that same date, each and every one of those violations were associate witched the sale of electronic cigarettes and each and every one of those individuals were found to have violated the 19n which is the provision prohibiting sale of electronic cigarette tos a minor, instead of receiving a suspension, what other vendors opted to do is to voluntarily agree to cease selling electronic cigarette and is in exchange the director was willing to waive any suspension or any punishment in exchange with that agreement and i just believe that mr. habash is receiving an unequal punishment in exchange for the situation, and my request just so we're

clear is for reduction in the amount of the suspension time from 20 days. >> let me ask a clarifying question so was that an offer that was made to those different folks about -- was it a -- in other words did the director say, look, you can keep your -- keep selling other tobacco products, but you have to give up e-cigarette products, and did your client get the same opportunity and did he -- or did he voluntarily to do the same? compare apples to apples. >> i understand your question just so we're procedurally clear, where my client appeared on the calendar was roughly the misleading of the calendar we were there from the beginning to the end of the calendar opted to say and watch all of the hearings that occurred that day. the issue aof a voluntary revocation -- i guess a voluntary decision to cease selling e-cigarettes did not

occur until at least the end of the calendar when one of the gentleman says, look, i don't want to be selling these things and i'm being punished for it. at that point in time, the director made an offer well, if you want to stop selling e-cigarettes, we will not iing ewe a suspension, and then what ended up occurring is several of the other individuals that had had their matters heard prior to that actually came up and said, i too might be interested in trying to avoid my suspension by voluntarily agreeing to ceasing the sale of electronic cigarettes. >> i take it you did not? >> no. >> okay, one other question so liquid nicotine that you showed using is it your argument that had the decoy for lack of a better word purchased that in addition to the -- what you equate to be the pipe, your client would have asked for i.d.? is that your argument?

>> do you want to address it yourself? >> yes, my name is hanna i'm the owner of the smoke shop. >> can you answer my question. >> they caught me off guard and like my attorney says, that day i had a little situation, i'm not denying that, i'm responsible. >> okay, but i asked a particular question. >> yes, i would because what he asked for is just -- it could be a metal thing a battery, if he asked for the nicotine then it would dawn to me that i would have to ask him for an i.d. but -- >> okay, thank you. >> i would just like to follow up with that, as i read the excerpts from the code that are in the letter explaining the suspension, california and san

francisco health code define electronic cigarette as the device, it doesn't say anything about the liquid. >> i agree with that, i concur but i would ask you if you might turn your attention to the 2014 mailer that is sent out specifically by the department of public health that is instructing tobacco retailers and tobacco permit holders thousand comply with 19n to have san francisco health code and there is no single reference or definition in there and in fact it wasn't until the 2015 submission that there was additional clarification submitted by the department, and

when i cabined the business owners, i do ask them to meet me at the site. with we're at the site, we do discuss the incident that occurred i provide the business owner with all of the documentation proving that the violation did occur. i also provided them with a copy of the educational mailer which you have seen and i also suggested to the permit holder to continue present toing the hearing officer any changes in their business practice to ensure repeat violations do not occur in the future. now, after we've been conducting these hearings since january, 2015, and i will be glad to provide you with the results of our hearing so the san francisco police department visited 80 businesses between

the months of september, 2014 and december, 2014. out of the 80 businesses, 15 had sold an electronic cigarette device to a minor and out of the 15 businesses that sold an electronic cigarette device to the minor 4 cases are currently being scheduled for upcoming hearings four cases were ordered by the department to serve a 20 day suspension, one case was ordered by the department to serve a 15 day suspension, one case was ordered by the department to serve a 10 day suspension and in the last five cases the suspensions were waived because the businesses voluntarily elected to no longer sell electronic cigarette devices for as long as the permit holder held the business. the businesses asked the department to consider that. lucky 7 was present when four

of the business -- four out of the five businesses volunteered so cease selling electronic cigarette devices, the reason for the suspension, the factors that the director considered in issuing the suspension, he considered whether or not the person responsible for selling the device asked for an age or any identification. he also considered that they had retrained the staff as well as the permit holder, he also considered if the permit holder implemented any operational changes like installing the scanner, that actually reads the age, and he also looked if the business had a list ri of selling a tobacco product to a minor the one for a 10 day suspension, the permit holder retrained everybody, the permit holder installed a scanner that would read the age and tlfps no

history of the permit holder ever selling a tobacco product to a minor so this was a first-time violation, so in the case of lucky 7, they failed to ask for i.d., they failed to ask for age and in the police report itself, it stated that there is a sign posted at the entrance that says no one under the age of 18 was allowed in the store quet yet the minor entered the store and purchased a device. they didn't offer any retraining of anyone, they didn't offer any changes in their operational procedures and the department could not verify the accuracy of their claim then the 20 day suspension would result in the business closing and in fact we have been conducting research going to the actual files looking at all of the cases, we researched 37 cases that's come before the board additional 8 tobacco cases and not one of

the cases that i researched found that a business went out of a business while or nearly following their suspension. i would also like to mention that the director -- at the director's hearing, the electronic cigarette device was sold to a minor in order to show the nicotine cartridges are attached but it was the director's feeling it is the device and even on the package of the device says that that product may not be sold to a minor and i did show that to the director at the time. thank you. >> do you want to respond to the comment made about the lack of clarity in the formal notifications from dph to the tobacco seller. >> i would be glad to comment.

i think it is, again playing to the argument that they didn't understand the law governing my business so it's very clear in what was provided that selling electronic cigarettes to a minor is illegal and the product that was sold was labeled electronic cigarette. the fact that it did not break it down to the granular level saying i'm selling an empty cartridge, i don't believe it's upon the department or the city to go into that level of detail when in fact the state law for five years letter?

>> i'm not able to answer that question. >> ms. young do you have anything to add to that? >> but, again i would say the burden is not upon the city and having worked with this client

for many years they tend to do -- provide things and then more. >> okay. >> so i think if anything they were trying to get out as much information as possible and educate the sellers so they wouldn't fall within this very same scenario. >> yeah, well, that's what i was trying to get to because that's what he was saying he fell under the lack of understanding from the first notification to the third notification. >> right. er >> alright, thank you. >> i have to ask a follow-up question and i really don't want anybody to laugh because i'm dead serious. you said -- you confused me you said anything that doesn't produce a vapor so a pipe

doesn't produce a vapor. we talked about hukas, is that a vapor? can a kid under 18 or can a minor go in and buy a huka? there's -- where i'm getting in conflict haoe, there's a new device called electronic cigarette that's new to us and rightfully so the state and the city has legislated that this is really bad for minors, and what's missing here is this other traditional type of smoking device which might be a pipe, which might be a huka, which might be any number of things that tobacco or other substances can go into, so it can be smoked and i think that's where the ambiguity lies. if you're going to legislate

against electronic cigarette that is don't have the nicotine in them, then one might suggest there be clarity on the subject of other smoking devices that also come empty but will be stuffed with a substance that will create smoke in the case of a pipe, will create vapor in the case of a huka and god knows what other people smoke. that's a confusion to me that be a consideration in the overall ambiguity or lack thereof of the information forthcoming from the health department. >> didn't the package say electronic cigarettes? >> yes, it says electronic cigarette and it also says not to be sold to a minor so there is clarity there. i'm not fighting the behavior but i heard conflict between the new age and the old age here. >> so, if i may, and it's true,

i mean, there's an explosion that i think we all can recognize of various devices on the market that deliver nicotine fluid combined with other substances, but one thing and then i have, is it lieutenant, lieutenant [inaudible] here who's prepared to comment as well. i don't want to read the actual definition because it states from 19n .2 that an electronic cigarette means any device with a heating element, a battery or an electronic circuit that provides nicotine or other vaporized liquids to the user in a manner that stimulates smoking tobacco.

>> president lazarus, commissioner, lieutenant dave falza with the police department, regarding your dads traditional tobacco pipe, under those past lives no, unless the police officer could articulate that it was drug pair fen kneel ya if they believe that person was buy hating traditional tobacco pipe for the ingestion of the narcotic absolutely, that would fall under drug fair fen kneel ya. the electronic devices is new legislation and they specifically prohibit minors from buying them and that's where the city attorney was just articulating the definition and i think it was designed that way to separate it from your scenario of our father's traditional tobacco pipe, but i suspect with all of this new interest in tobacco

and alcohol access by minors, we probably will see a day when the traditional tobacco pipe, you'll have to be 18 or over to purchase it but i'm not aware of a law now, that's not a type of case we would be a licensee through, we're not sending you out to try to buy traditional tobacco pipes, so i hope that helps you out. >> and i think the ignition point where obviously a pipe doesn't have an ignition component that -- >> correct. >> that's a big difference. >> your huka pipe example, from law enforcement's perspective, we are going the charge it differently if we have reasons to believe that it's to the ingestion of a narcotic, that can be the case, i think we're talking about smoke and vapor and vapor just like you said is

using electronic means and batteries and so on but there is no doubt i'm sure the day will come when vapor technology is being used to ingest narcotics if it's not already related. >> by the way, my dad died from heart disease from smoking those pipes. >> any other questions for the sdmpt >> okay, thank you, is there any other public comment on this item? >> okay, first person, please step forward. >> good evening, president and commissioners, my name is karen [inaudible] i'm with braoe cal foreign ya, i'm the co-chair of the san francisco tobacco-free coalition, you all might remember me from last week and you heard from the faculty

control members of the importance of not selling e-cigarettes to minors, by now, you are familiar with the laws regarding this issue based on what you heard last week, you voted to uphold the environmental health decision i urge you to be consistent and set that precedent, since you set that precedent already and voted with your vote on last week's appeal considering you're seeing the same issue this week and i urge you to uphold the environmental decision based on the same reasoning that you upheld their ruling last week. thank you for your consideration. >> thank you, next speaker, please. >> hello my name is [inaudible] i'm from the vietnamese wellness center and in 2013, some of the youth that were part of my program went to schools and collected data with

the youth and their school about where they can go buy e-cigarette as you can see, it's pop lacer these kids, they love it and they have no clue what the harm does to them and then allowing these stores to sell cigarettes, e-cigarettes or anything to minors is just not a good thing it's unhealthy, it's not good for the community, the kids have no clue what it does to them and these toxins can kill them, as you mentioned and i think you should uphold this and do not allow them to sell to any minors and i hope i made sense i'm a little nervous, i've never done this before, so yeah. >> thank you, next speaker, please. >> hello, president and commissioners, my name is natalie and i'm here add an advocate to urge you to make the decision you made last week

and deny this appeal, you know why this is an important issue for public health and youth especially our lgbt youth selling cigarettes to minors is intolerable e-cigarettes should not be treated differently. thank you. >> next speaker, please. >> hi my name is [inaudible] and i'm representing the san francisco tobacco free coalition, i'm a member and i wanted to urge you to enforce these laws to make e-cigarettes inaccessible to minors. right now, they're very easily accessible to kids, my niece tells me she can get them from school pretty easily and when it contains nicotine or not, it's dangerous, if it has nicotine tha, can cause cardiovascular diseases as well as respiratory and as well as