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Board upholds several DPH tobacco‑sales suspensions, reduces one and continues another
Summary
On Oct. 7 the Board of Appeals upheld a 60‑day suspension for Geary 76, upheld a 45‑day suspension for Don Tuis Mexicomercado, reduced a 20‑day suspension to 15 days for J and D Grocery, and continued the Alibaba (Bridal Mahfouz) matter to Nov. 4 for additional briefing; votes were unanimous where taken.
The San Francisco Board of Appeals dealt with several Department of Public Health (DPH) tobacco‑sales enforcement cases on Oct. 7, 2009, issuing a mix of upheld penalties, a reduction and a continuance.
Geary 76 (A & M Petroleum) — The Department of Public Health told the board a clerk sold cigarettes to a minor decoy on Feb. 14, 2009, and DPH recommended a 60‑day suspension under San Francisco Health Code section 1009.66 and California Penal Code section 308(a). The permit holder acknowledged the sale but asked the board for leniency because of mitigating employee circumstances. After discussion about prior incidents and notice, Commissioner Rafael Mandelmann moved to uphold the 60‑day suspension; the board voted 4–0 to deny the appeal and uphold the department’s suspension.
Alibaba Smoke & Gift (Bridal Mahfouz) — DPH recommended a 70‑day suspension for selling tobacco during a prior suspension and argued revocation was also available. Appellant counsel and the proprietor presented mitigating facts; commissioners raised evidentiary questions (receipt detail, whether tobacco had been removed from shelves during suspension and the timing of DPH’s submission of prior-incident documents). The board voted to continue the hearing to Nov. 4, 2009, with DPH briefs due Oct. 15 and the appellant’s reply due Oct. 29.
Don Tuis Mexicomercado (Gil Figueroa) — DPH alleged a sale to a minor on March 28, 2009 and sought a 45‑day suspension. The permit holder disputed facts and cited a purported fake ID for the earlier case; after deliberation the board denied the appeal and upheld a 45‑day suspension (4–0).
J and D Grocery (Joseph Koloff) — DPH recommended 25 days (or had a 20‑day decision in file) for a March 2009 sale to a minor. The owner described mitigating circumstances, training and the rarity of incidents. Commissioner Kendall Goh moved to overturn the department and reduce the suspension to 15 days; the motion passed 4–0, reducing the effective suspension to 15 days.
Lombard Union 76 — DPH recommended a 20‑day suspension for a sale on April 8, 2009; after hearing mitigation the board voted 4–0 to deny the appeal and uphold the 20‑day suspension.
DPH staff and commissioners discussed the department’s sampling cadence for decoy operations and whether the 12‑month “second‑offense” window adequately captures enforcement realities when decoys are deployed infrequently. Where suspensions were upheld or reduced, commissioners noted the board can impose or change penalties only within code limits and with full votes recorded.
