CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS ---------------------------------------------------------X DEPARTMENT OF CONSUMER AFFAIRS, CONSOLIDATED DECISION AND ORDER against Complainant, Violation Nos.: GABBAR, NASREDEEN A. d/b/a 99 CONVENIENCE STORE Respondent. ---------------------------------------------------------X License No.: 1451719 Respondent s Address: 1292 Washington Ave. Bronx, NY, 10456 A consolidated hearing on the above-captioned matters was held on November 20, 2013. Appearances: For the Department: Inspector J. Mendoza; Inspector P. Clemons. For the Respondent: Nasredeen A. Gabbar; Micah Kwasnik, Esq. The respondent was charged with violating the following: 1. NYC Administrative Code ( Administrative Code ) 17-715 for offering for sale flavored tobacco products (2 counts); 1. Administrative Code 17-706 for selling a tobacco product to a person under 18 years of age. (1 count); 2. New York State Public Health Law ( PHL ) 1399-cc(2) for selling a tobacco product to a person under 18 years of age (1 count); and 3. PHL 1399-cc(2) for failing to post a tobacco notice sign that advises that the sale of electronic cigarettes to persons under 18 years of age is prohibited by law (1 count). Based on the evidence in this case, I RECOMMEND the following: Findings of Fact On September 14, 2013, the respondent did not post a tobacco notice sign which advises the sale of electronic cigarettes to persons less than 18 years of age is prohibited by law. The respondent sold a pack of Newport cigarettes to a person less than 18 years of age.
Page 2 On September 25, 2013 the respondent offered flavored tobacco products for sale. The respondent previously pleaded guilty to a violation of PHL 1399- cc(2) on August 28, 2013 (see TP070018086). Opinion OL005319774 The Department established the violation by a preponderance of the credible evidence. Inspector Mendoza gave consistent and credible testimony, supported by corroborating documentary evidence, that the respondent s employee offered him flavored cigars for sale for $1.00 each. 1 Mr. Gabbar s conflicting claims, that all the flavored tobacco products were going to be returned to the supplier but were opened because they were for personal use, do not establish a meritorious defense to the charge. Accordingly, the charge will be sustained. The Department established the violations by a preponderance of the credible evidence. Inspector Clemons credibly testified, supported by corroborating documentary evidence, that he observed the respondent s employee sell a pack of Newport cigarettes to a person less than 18 years of age for $11. 2 Inspector Clemons also credibly testified, supported by the Notice of Hearing prepared contemporaneously with the inspection, that the respondent did not post a tobacco notice sign including the language electronic cigarettes. 3 Mr. Gabbar s unsupported assertion that, before the inspection, he posted a sign including that language does not credible rebut the Department s case. Accordingly the charges shall be sustained. ORDER The respondent is found guilty of violating the charge and is ordered to pay to the Department a TOTAL FINE of $1,000, which is immediately due and owing, as follows: 1 See Department s exhibits A-C. The respondent did not rebut the inspector s testimony, though given an opportunity to do so. 2 See Department s exhibits D-F. The respondent did not rebut the inspector s testimony, though given an opportunity to do so. 3 The respondent did not rebut the inspector s testimony, though given an opportunity to do so.
Administrative Code Section 17-715: $ 1,000 ($500 per count, for 2 counts) Page 3 The respondent is found guilty of violating the charges and ordered to pay to the Department a TOTAL FINE of $4,100, which is immediately due and owing as follows: Administrative Code Section 17-706: $ 1,000 New York State Public Health Law Section 1399-cc(2): $ 3,000 ($1,500 per count, for 2 counts) Total Surcharge: $100 ($50 per violation of Article 13-F of the New York State Public Health Law) Two (2) points are assigned to the respondent s State cigarette/tobacco products retail dealer s registration record for its violation of Public Health Law Section1399-cc. If respondent operates while the license is revoked, the respondent will be subject to criminal prosecution and/or civil penalties of at least $100 per day for each and every day of unlicensed activity, as well as the closing of the respondent s business and/or the removal of items sold, offered for sale, or utilized in the operation of such business, pursuant to Administrative Code Sections 20-105 and 20-106 (the Padlock Law ). If the respondent has accumulated a total of three (3) or more points on its State cigarette/tobacco products retail dealer s registration record, the Commissioner of the State Department of Taxation and Finance and the Director of the New York State Lottery will each be notified to SUSPEND the respondent s State cigarette/tobacco products retail dealer s registration and lottery license for six (6) months. If the respondent has violated NYS PHL 1399-dd three (3) times within a two (2)-year period, or four (4) or more times cumulatively, the Commissioner of the State Department of Taxation and Finance will be notified to SUSPEND respondent s State cigarette/tobacco products retail dealer s registration and lottery license for one (1) year.
Page 4 If the respondent has violated Article 13-F of the New York State Public Health Law on four (4) or more occasions within a three (3)-year period, the Commissioner of the State Department of Taxation and Finance and the Director of the New York State Lottery will each be notified to REVOKE the respondent s State cigarette/tobacco products retail dealer s registration and lottery license for one (1) year. If the respondent has violated NYS PHL 1399 of the while its State cigarette/tobacco products retail dealer s registration was suspended, the Commissioner of the State Department of Taxation and Finance will be notified to PERMANENTLY REVOKE the respondent s State cigarette/tobacco products retail dealer s and lottery license registration. This constitutes the recommendation of the Administrative Law Judge. Shanet Viruet Administrative Law Judge DECISION AND ORDER: The recommendation of the Administrative Law Judge is approved. This constitutes an Order of the Department. Failure to comply with this Order within thirty (30) days shall result in the suspension of the respondent s DCA cigarette retail dealer s license, and may result in the suspension of any other Department of Consumer Affairs license(s) held by the respondent. Failure to comply with this Order includes the payment of the fine with a check that is dishonored or by a credit card transaction that is denied or reversed. Date: 22 November 2013 James M. Plotkin Deputy Director of Adjudication PLEASE TAKE NOTICE that two or more violations of Administrative Code 17-704, 17-705 and/or 17-706 within a two-year period may result in the revocation of your DCA cigarette retail dealer s license. A third or subsequent violation of Administrative Code 17-704, 17-705 and/or 17-706 within a two-year period shall result in the mandatory revocation of your DCA cigarette retail dealer s license.
Page 5 PLEASE TAKE FURTHER NOTICE that an accumulation of 3 or more points on your New York State cigarette retail dealer s record within a 36-month period will result in a 6-month suspension of your State cigarette retail dealer s registration AND a 6-month suspension of your lottery license. In addition, 4 or more violations of Article 13-F of the Public Health Law within a three-year period shall result in a one-year revocation of your State retail dealer s registration AND your lottery license. These penalties are in addition to the any other penalties required or permitted by Public Health Law Article 13-F. cc: Micah Kwasnik, Esq. Via email: micahkwasnik@yahoo.com Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY 10004 APPEAL INFORMATION You have 30 days to file an APPEAL of this decision. You must include with your appeal all of the following: (1) a check or money order payable to DCA for the sum of $25; and (2) a check or money order payable to DCA for the amount of the fine imposed by the decision, or an application for a waiver of the requirement to pay the fine as a requisite for an appeal, based upon financial hardship. The application must be supported by evidence of financial hardship, including the most recent tax returns you have filed. BY EMAIL: Send your appeal to myappeal@dca.nyc.gov and, at the same time, mail the $25 appeal fee to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY 10038. (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at www.nyc.gov/consumers, or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY 10004. BY REGULAR MAIL: Mail your appeal and the appeal fee to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY 10038. You must also mail a copy of your appeal to: DCA, Legal Division, 42 Broadway, 9 th Floor, New York, NY 10004. Make sure to include in your appeal some indication or proof that you have sent a copy of the appeal to DCA s Legal Division. You may pay the fine online at www.nyc.gov/consumers, or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY 10004.