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Board upholds 45-day tobacco-sales suspension for Silver Gas despite operator plea
Summary
The Board of Appeals upheld a 45-day suspension of MDN Petroleum's tobacco-sales permit at 2400 San Bruno Ave for selling to a minor decoy; commissioners debated whether clerk’s misreading of an ID constituted a defense under Penal Code §308, and a motion to reduce the penalty to 30 days failed to change the department action due to the charter's four-vote requirement.
The San Francisco Board of Appeals denied MDN Petroleum Inc.’s appeal of a 45-day suspension of its tobacco-sales permit for Silver Gas & Diesel at 2400 San Bruno Avenue, upholding a Department of Public Health order issued after a March 13 decoy operation.
Dr. Ojo presented the DPH case, saying the store clerk sold cigarettes to a minor decoy and that this was the permittee’s third recorded violation under the same permit (cited in 2005, 2006 and 2009). DPH relied on San Francisco Health Code §1009.66 in recommending the 45-day suspension. Appellant counsel Dean Najdawi and clerk Solita Rivera said the clerk asked for ID and misread a 1992 birth year as 1990 because of vision problems; Rivera apologized and asked the board for leniency.
Commissioners discussed the applicability of California Penal Code §308, which provides a defense if a retailer asked for and reasonably relied on an ID. One commissioner said the code often addresses false IDs rather than misreads, but acknowledged a possible argument for the defense. The board debated mitigation and the economic impact of a 45-day suspension on a small business; Vice President Peterson moved to reduce the penalty to 30 days. The motion carried 3–2, but the city charter requires four votes to modify or overturn departmental actions. Because that legal threshold was not met, the 45-day suspension remained in effect.
The board therefore upheld the Department of Public Health’s suspension. The decision preserves the department’s penalty and signals that repeated violations under a single permit weigh heavily in the board’s view.
