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Board reduces Silver Arco tobacco permit suspension to 30 days after contested notice and closed-session review
Summary
The San Francisco Board of Appeals upheld a Department of Public Health 50‑day suspension for a gas station that sold cigarettes to a minor but reduced the penalty to 30 days after commissioners raised due‑process concerns about earlier notice delivery and inspected decoy evidence in closed session.
The San Francisco Board of Appeals on May 20 upheld a suspension of a tobacco‑sales permit at the Silver Arco gas station but reduced the period from 50 days to 30 days, after debating whether the seller should be treated as a first or second offender.
Dr. Johnson Ojo of the Department of Public Health told the board the department’s enforcement action followed an incident in which a 16‑year‑old decoy bought cigarettes from the Silver Arco clerk during a police‑conducted sting on Jan. 8, 2009. "The Department of Public Health ordered the suspension of the permit and related tobacco sales at Silver Arco for a period of 50 days," Ojo said, adding the store had previously received a 10‑day suspension for selling to minors.
The owner, Steven Ng, said notice and citation paperwork from an earlier matter had been addressed to employees rather than to him and asked the board to impose a fine instead of a lengthy suspension. "I did try my very, very best to train my employee," Ng said, adding he would provide employees with training if the department offered it.
Commissioners pressed both sides on how DPH calculates suspension durations. Ojo said the department considers prior violations and other factors and that 90 days is the statutory maximum noted in San Francisco Health Code section 1009.66, but that the department has internal guidelines to set reasonable penalties. The board briefly convened in closed session so the permit holder and commissioners could inspect photographs of the minor decoy; after returning to open session the board voted not to disclose the closed‑session discussion.
Several commissioners expressed concern that a notice in a 2006 case may not have reached Ng because it was handed to an employee, potentially undermining the procedural basis for treating the current matter as a clear second offense. "I would prefer that we treat this as a first offense," one commissioner said, citing flaws in the prior notice delivery; another commissioner said the repeat violation supported a stronger penalty.
Faced with competing views, the board voted 4–1 to uphold the department’s finding but to reduce the suspension to 30 days. President Fung, Commissioners Goh and Garcia and one other commissioner voted for the reduced suspension; Commissioner Mandelmann dissented.
The board directed that notices of decision and any required adoption of findings be issued later. No further schedule was set in the hearing record.
