Board of Appeals leaves 20-day suspension for Tony’s Market in place after appeal fails

The San Francisco Board of Appeals on Jan. 8, 2025 left in place a 20‑day suspension of the retail tobacco permit for Tony’s Market and Liquor after failing to adopt a motion to overturn the Department of Public Health’s enforcement action.

The suspension, imposed by the Department of Public Health (DPH) on Nov. 25, 2024, relates to the sale or display of restricted electronic cigarettes that DPH says lack U.S. Food and Drug Administration premarket authorization. The permit at issue is retail tobacco permit number T94075; the administrative action was appealed to the board as appeal number 20Four‑sixty4.

DPH staff told the board the business had been the subject of two compliance checks and an educational enforcement campaign since the law took effect. “Appellant does not challenge the compliance check… nor does the appellant deny violating Article 19 R 0.2 by stocking and reselling restricted electronic cigarettes on‑site,” DPH principal inspector Michelle Vega told commissioners, adding the department’s 20‑day suspension is below the code’s maximum threshold for a second violation.

The owner and appellant — identified in the hearing as Siddique, who said he runs the store — told the board the presence of two restricted e‑cigarette items was an oversight and apologized. “I apologize… it won't happen again in the future,” Siddique told the board, saying the items had been “sitting in the back” and that his business faces financial strain if tobacco sales are suspended.

Commissioners debated whether the 2024 finding should be treated as a second violation tied to a 2022 compliance check. Vice President John Transvinia and Commissioner Rick Swig argued the department had given an earlier warning and educational outreach and that a repeat finding supported the suspension. “If you get caught and you get caught twice, then I believe that, you should be held accountable,” Commissioner Rick Swig said. Other commissioners raised statutory and notice questions about applying a multi‑violation penalty more than 12 months after the earlier finding.

The board considered several motions: a motion to grant the appeal and revoke the department’s order; a motion to grant the appeal but reduce the suspension to 10 days; and a motion to deny the appeal and uphold the department. None of those proposals passed on the floor; the board recorded that, because no motion to overturn the department’s order was adopted, “the underlying order will be upheld by operation of law.”

Board members and DPH officials also discussed DPH enforcement practice and the city health code. Deputy City Attorney Jen Huber told the board the code section governing suspension periods (19H.19) ties larger suspensions to multiple violations within 12 months, and that DPH guidance provides a separate internal framework for minimum suspension thresholds.

The board’s decision leaves the DPH‑issued 20‑day suspension in effect. The department’s stated enforcement rationale focuses on preventing retail availability and display of restricted electronic cigarettes to protect public health and youth access.

Details from the hearing: - DPH said compliance checks occurred in 2022 and again in 2024; the 2024 inspection noted roughly 16 restricted electronic cigarette items on display during that check. DPH said the earlier 2022 case had been abated after a reinspection. - The appellant estimated the short‑term financial impact of a sales suspension as substantial; he gave varying estimates on the record, including a lower‑thousands amount for a 20‑day loss and a larger figure when discussing broader business decline (comments appear in the transcript and are recorded as estimates). The record contains the appellant’s statements about lost customers and revenue but does not establish a precise verified financial loss.

The matter was recorded as submitted after commissioners’ discussion and no further action was taken at the hearing.