How Quickly our Personal Freedoms can be taken away!

As some of you may know, I have been involved with Avva Cigars and Wine's fight with the Oregon Department of Health and Services (DHS) over whether Avva should have been allowed the "smoke shop exemption" as accorded in the statute.
I have posted before, the law and the application of the exemption. I now bring new evidence that should alarm anyone who is concerned about liberty, freedom and who are against State control.
On my radio show on Monday, from noon to two, I will be reading this evidence along with playing sound files that show a willful denying of the exemption by 4 women who work for DHS, and how that denial has been unlawfully applied and the appeal process by Avva has been intentionally delayed or strategically denied by DHS employees who have used at the least, improper strategy.
See in the photo below, in the middle, an email from Kylie Menagh of DHS in which she brags about how they can delay the process (Miss Menagh refers to herself in various emails as: Tobacco Prevention Coordinator, and in others as: MPH, Health Promotion and Chronic Disease Prevention Program). You will need to click on these images to better see the emails:
In that same email photo you can see the back and forth emails where these DHS employees begin a process of making up policy and procedure “on the fly” as they did not have any policy or procedure set down to follow.

In another email, Miss Jill Thompson of DHS states that she couldn’t even find Avva Cigars until she “followed her nose” so to speak, when she was on an outing with her “BF and Son” (which by the way, the smoke she smelled was from the Cigarette smokers area at the front door of the Mall, not from Avva). You will need to click on these images to better see the emails:

Here is where the “cover up” gets interesting. On Dec. 7, 2009, the decision was made that Avva would be “indefinitely denied” as you can see from the photo of the email below. You will need to click on these images to better see the emails:

Avva was never informed of the “indefinite denial” but was told it’s application was denied on Dec. 10, 2009.

On Dec. 18, 2009, DHS employees began to attempt to conceal their activities by removing all communication regarding Avva’s application process to “telephone communication only”. Why would they do this? Well as you can see by the email below, my radio show had started quite a stir with my listeners who began calling DHS, Marion County and their representatives. One of those representative, Matt Wingard, and his assistant Dawn Phillips even went so far as to begin their own investigation into the matter and to begin to attempt to contact these employee’s own boss, Dr. Bruce Goldberg, head of DHS. Read the email. You will need to click on these images to better see the emails:

By Dec. 30, 2009, Avva requested an opportunity to submit additional material to support it's case to appeal the denial. Avva was not aware of the "indefinite denial" as these were again, internal emails. Avva did not receive a response on this additional information until April 7, 2010. The case is now before a DHS hearing, conducted by DHS. (I bet that will be “objective”?)

Tomorrow, on my radio show, I will go into further detail, the "why" DHS denied Avva's exemption, play audio from the Senate floor of the Legislature as Sen. Prozanski and Sen. Walker actually describe how a "smoke shop located in a mall setting would be exempted" and how DHS employees willfully and purposely have "bent the law" to their own agenda that was best stated by Miss Menagh when she told the owner of Avva (and the owner of Rich's Cigars in Portland): "my mission is to end ALL smoking in Oregon and will do what I can to achieve that goal".

THAT my friends, is what "state control" looks like. Not "state" as in the State of Oregon, but "state" as in "socialist state". A "state" where one's personal and business rights are trampled on by "state" employees who have the power, not voted on by the people, but power handed to them by their employer, The State of Oregon. This is how quickly freedom can be squelched!

I beg you to listen tomorrow to my show, hear the evidence and then contact DHS, Marion County Health and your local Representative and have them look into this matter. It's not about smoking or not smoking. It's about Personal Freedom!

Revisiting the Avva Cigars Saga with DHS

The process is continuing in the fight for the rights of smokers at Avva Cigars.
I have acquired the actual transcripts from the Legislature when they were discussing SB571 which became the Smoke Free Workplace Law.
Note the points made by the Senator quoted:

SB571
WORK SESSION
/ unclear / Members of the Committee -9 / unclear / exception to the smoking prohibitions for “smoke shops”
It clarifies that smokes shops may sell alcohol in a specific lounge area between the hours of 3 pm and 8 pm.
[Clerk] Okay , Senator Porzanski.
[Senator Prozanski] Move / unclear / -9 amendment to SB5771 … for consideration
[Clerk] Senator Prozanski has moved for -9 amendment to Senate Bill 571. Is there any discussion?
[Senator Prozanski] Perhaps I’ll go over the amendment since most of the people here don’t know or have not had an opportunity to hear what the -9 Amendment is about. We had a testimony that was at our first public hearing which was in Eugene at the U of O Law School. And at that time we heard from an individual that actually owns a smoke shop or tobacco shop, and after hearing testimony I was compelled to bring forward the -9 Amendment. The -9 Amendment actually would define a smoke shop as a business that’s primarily engaged in the sale of tobacco products and smoke instruments as defined in the statutes. At least 75% of their gross revenue for the business will have to come from the sale of tobacco products. It will, in fact, prohibit individuals under the age of 18 from entering the premises . It will not allow for lottery gaming or any type of betting on premise. As anybody remembers the individual that gave the testimony talked about having lottery in his establishment . I think that after speaking to most of the committee members, we did not want to see this becoming a loophole for bars to be able to somehow stay in existence as they currently are. So by eliminating – or prohibiting, I should say – any type of gaming and requiring that the primary income come from the sale of tobacco .
And the next part on that component is that it needs to be a stand-alone business meaning that it cannot be structured in an area like what we would call a mall, so the ventilation system will not be tied in to any way, shape or fashion to allow smoke to come out of there.
The testimony that we heard in Eugene … it occurred to me that when you talk about smoke shops where you have cigars or pipe tobacco being sold, it’s not uncommon for individuals who are buying those items to want to test them or sample them. And it seems only right at this stage in our laws in the state, as well as in the country, with tobacco being a legal product, that this would be an appropriate exception to the bill.
It should be noted for those that are here, as we heard in the testimony in Eugene, this individual said everyone that worked for them were smokers because, as he stated, that it’s very important for those individuals to know the tobaccos they are selling and it was just basically common. So though we are concerned about making sure individuals who work in employment situations are not directly impacted by smoke or they have no choice, it appears that you are talking about a very small segment of the population that would be seeking those type of jobs. And, as he said, all of his employees in themselves are, in fact, smokers.

So as you can see, they intended for the "smoke shop" exemption to be for even those stores IN A MALL, IF they have their own ventilation. Avva has it's own HVAC and ventilation and in fact structurally is completely detached from the mall, and Sadeeh has the documentation from the City, the mall and the engineers to prove this. The next step is to meet with DHS to present all of this new information!

The Smoke Free Workplace Law, One Year Later

Here is a fantastic article that exposes the abuse of DHS and the well intentioned law from last January.

ONE YEAR LATER: THE SMOKE FREE WORKPLACE LAW

Where there's smoke, there's overregulation!

You probably know by now that Avva Cigars and Wine in Salem was denied their "smoke shop" exemption in December. This is still being fought and will continue until the entire process has been used.
NOW I have received word through my sources that this is not the first time this has happened.
A great article in the Oregonian last week shows how the employees of the State Department of Health have taken upon themselves to define the law that the Legislature laid out for them. Not what the law says, but what they BELIEVE the law says!

Smoke Shop Exemption Hard To Get!

I understand that Rich's Cigars in Portland was denied the first time as well and then was exempted after fighting this.
Broadway Cigars is "partially" exempt.
Other shops around the state have either given up or are in violation.
This is NOT what the legislature had in mind.

The Big Guns are Out in the Avva Cigars Vs. DHS Battle

Just got the letter from attorney for Avva to DHS director Dr. Bruce Goldberg.
This is what we have said all along and NOW he is listening. Lars Larson will be discussing this on a show this week. The snowball is rolling, I think this will all be fixed in the next week or so.
Stay tuned for more developments!

Dear Dr. Goldberg,

Sir, I am writing to gain clarity as to why AVVA Cigars and Wine has not been granted its exemption Status for on premise smoking rights. Using the Oregon Administrative Rules, (OAR 333-015-0025 through 333-015-0080), which implement Oregon Revised Statute ORS 433; I am confused as to why we have been denied our Smoke Shop Certification. I would like to believe that this is just a misunderstanding and that we can resolve this issue immediately; clearing the smoke if you will of opinion and prejudice.

I only mean to imply that there may be biases from your department to our industry based on my conversation with your co-worker Kylie Menagh, your Tobacco Community Programs Liaison. Although Kylie and I disagree on the effects of pipe and cigar smoking, she would be happy to know we are allies in the fight of cigarette smoking. I am grateful the state employs such enthusiastic program leaders.

Sir I would like to turn your attention to a section of the DHS web page regarding “Exceptions to the Law” I have interjected comments in red between stated points of the Law.

Exceptions to the Law Exceptions to the law will include: Smoking in certified smoke shops. Smoke shops must be certified by the Department of Human Services and abide by specific guidelines. Get application for smoke shop certification. We have filed this on several occasions now, which I have photocopies of. If you need these faxed to you, please call. To qualify as a smoke shop, a business must: Apply to the Department of Human Services and receive certification before allowing smoking on the premises. Again please let us know if you need further copies. Acquire at least 75 percent of its gross revenue from tobacco sales every fiscal year Currently our sales of Tobacco equals 82 – 83% of our gross sales Prohibit persons under 18 years of age from entering the premises and post notice of the prohibition at each entrance and exit Our Policy is to ID anyone/everyone who appears 25 or less. Our employees are trained on this policy. Post signage at each entrance and exit stating that smoking is allowed on all or some of the premises As certification is granted Not offer video lottery games, social gaming or betting on the premises No gaming/betting on premises Not sell or offer on-premises consumption of alcoholic beverages No sales of on premise consumption of alcoholic beverages Be a stand-alone business with no other businesses or residential property attached to the premises The office at Lancaster Mall has provided me with blueprints to show that this is a standalone building. I have forwarded this information to your office in the past and I am happy to do so once again. The configuration and seamlessness of the malls interior construction can seem a little confusing to an uninformed observer. It can appear as if the space occupied by AVVA could have been there from the beginning of the malls design. In fact it predates this wing of the mall. As originally constructed, this was a standalone liquor store for many years. The mall extended a wing and built a hallway and restrooms, adjacent to the back wall of the space now occupied by AVVA to enclose them, giving the appearance of a shared roof. So, this evening while searching Google Earth, I zoomed in on the mall and as I looked at AVVA it was very clear that this building has four distinct, non-shared walls. Additionally, due to the fact that AVVA is, in fact, a stand-alone building it has its own water and power feed as well as a discrete environmental control system, separate from the rest of the mall building. Were this not a distinctly separate building, this would not be so. When I looked at the exemptions of other cigar stores, I am glad to see that the judgment and wisdom of your office has set a precedent to shops that can appear to touch each other, yet are in fact separate physical entities. As can be clearly seen now, we meet all the criteria not just in the spirit of the law but the letter of the law as well.

Dr. Goldberg, My belief that we qualify for an Exempt Smoke Shop is based is based in OAR definition as stated below:

ü 333-015-0030

Definitions

For purposes of OAR chapter 333, division 15, the following definitions shall apply:

(1) "Act" means the Oregon Indoor Clean Air Act as it appears in ORS 433.835 through 433.875 and 433.990(5).

Please note that Definition 2- 21 has been removed for brevities sake, as it is not applicable to us or our situation.

(22) “Smoke shop” means a business that:

ü Is primarily engaged in the sale of tobacco with at least 75 percent of gross revenues resulting from tobacco sales in every fiscal year;

ü (b) Prohibits persons under 18 years of age from entering the premises;

ü (c) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

ü (d) Does not sell or offer on-premises consumption of alcoholic beverages; and

ü (e) Is a stand-alone business with no other businesses or residential property attached to the premises.

(23) “Wall” means any architectural partition with a height and length greater than its thickness, used to divide or enclose an area or to support another structure.

Stat. Auth.: ORS 433.855

333-015-0068

Smoke Shops

(1) A business must apply to DHS for certification prior to allowing smoking on the premises.

(2) A business must apply for certification on a form prescribed by DHS (this form is available on the Internet at www.healthoregon.org/tobacco or by calling the Public Health Division, Tobacco Prevention and Education Program) and the following information or documentation must be included:

(a) Documentation demonstrating that at least 75 percent of the smoke shop’s gross revenue is derived from the sale of tobacco products or smoking instruments; and

(b) Documentation, including written descriptions or visual aids, demonstrating that the smoke shop is a stand-alone business with no other businesses or residential property attached to the premises.

(3) DHS shall review application materials within 30 days of receipt and shall determine whether the application is complete.

(4) Within 10 days of an application being declared complete, DHS shall deny or grant the application. DHS shall grant a business certification if, upon review of the application materials, DHS finds that sufficient documentation has been provided to demonstrate the compliance with section (2) of this rule. In lieu of denying an application, DHS may request additional information from the applicant in order to determine compliance with section (2) of this rule.

(5) DHS may permanently deny the application for smoke shop certification if an applicant provides information that is false or deliberately misleading.

(6) Every year, within 30 calendar days from the date certification was originally granted, a smoke shop must provide DHS with documentation demonstrating that at least 75 percent of the smoke shop’s gross revenue is derived from the sale of tobacco products or smoking instruments.

Dr. Goldberg I do not need to quote statute to you, I do so here only for the sake of clarity. Please understand, I believe the issue here is misinformation. My purpose in writing this letter is to remove all barriers from running my business and allow AVVA cigar to cater to my clientele. This “misunderstanding” is costing me thousands of dollars a week. In a time when my incidental holiday sales should be strengthening my bottom line for 2010, shoring up the anticipated lean times, I am lost in a bureaucratic battle trying to defend my rights. My business is at stake… My sales are down 30%. I am a small business owner who employs five employees. This interference of un-fair, targeted and maligned injustice from DHS is an abuse of the trust we the people put into our government. I am in compliance with the letter and the spirit of the law.

You and I can resolve this in an afternoon. I am being pressured by my customers, my employees and close personal advisors to take this fight to the media and national press. Lars Larson is ready to go with this story to his national audience. This would be great advertising for me, but what does that do for the state and all of the stakeholders here? From the era of the Magna Carta forward the concept has been “Lex Rex”, the law is King; not “Rex Lex”, the King is Law.

I am reaching out to you sir as a citizen, a business owner a tax payer and a voter please share the mantel of service you chose when you became a public servant with AVVA, and do the right thing. We are in the right, we are in compliance and we have precedent on our side.

Thank you,

Saadeh Hadeed

www.avvacigars.com

503-585-5807

831 Lancaster Dr. NE, #11B

Salem, OR, 97301

Located in the Lancaster Mall

Freedom of Choice at Avva Cigars

If you listen to my program you know that one of my best supporters and advertisers is Sadeeh the owner of Avva Cigars. If you have never met him, let me tell you, he is one of the kindest, gentlest, sweetest men I have ever known. He will do anything for anyone. Complete strangers are always welcomed with open arms by him.
Well as you may or may not know, when the Workplace Smoking Ban Statute was put into place on January 1st of this year, Sadeeh filed the necessary paperwork for an exemption (which is in the statute) as a smoke shop. He met the four criteria for being exempt. The State "lost" that paperwork.
So, come August, September and October the State then filed 3 complaints against the store for "violating" the law. Sadeeh RE-Filed the paperwork and hand delivered it along with supporting documents and more.
Tonight, he received a call from the lady at the Department of Health and Human Services, Jill Thompson and one of her underlings. They told Sadeeh his application was denied because the door from his store into the Lancaster Mall was too close to the food court. It's a long story but, trust me, it's over 50 yards AND the store has a reverse airflow that actually sucks the Mall air into the store, meaning NO smoke EVER goes into the Mall.
This State Worker also told Sadeeh that it was her "goal to end all smoking in Oregon" and when he asked who he could appeal to, she said "me" and informed him that "she would continue to deny it".
So, what is he to do?
If you care at all, even if you can't stand smoke, you have to believe in the rights of a business to do business. His business is down CONSIDERABLY since he shut down the smoking.
This is not about smoke it is about FREEDOM!!
Please support him with calls, emails and visits, even if you don't smoke cigars, please!
The number is 503-585-5807 and email is: info@avvacigars.com
This story is NOT over, my friends in the talk radio business are going to work together to defeat the Liberals who HATE our freedoms and WE WILL WIN!!
Thank you,
bill