Board reduces one tobacco‑sales suspension and upholds another in decoy sting cases

The San Francisco Board of Appeals on July 9 handled two Department of Public Health appeals arising from police decoy operations that found clerks sold tobacco to a minor. In two separate cases the board applied the city—s enforcement framework under San Francisco Health Code §1009.66 and California Penal Code §308(a).

In Item 6, Dr. Johnson Ojo, principal inspector with the Department of Public Health, recounted a Feb. 19, 2008 police monitoring operation at Pearl Market (1201 Divisadero Street) in which a minor decoy bought cigarettes and an officer recovered marked city money and issued a citation. DPH had ordered a 30‑day suspension when nobody appeared at the director—s hearing; the department said it would not oppose a reduction to 15 days if the board found mitigation. Basile, representing Pearl Market, said the sale was a clerk's mistake and the owner missed the director's hearing because of a serious family medical emergency. Vice President Frank Fung moved to reduce the suspension to 15 days; the motion carried 5–0.

In Item 7, Dr. Ojo described similar facts for MacBaker Market (1800 McAllister Street), noting the health code allows up to 90 days for a first offense but that the department had been issuing 15‑day suspensions in comparable cases. Commissioners discussed whether warnings are ever issued, economic impacts on small operators, and the policy rationale for stepped penalties. The board voted 5–0 to uphold a 15‑day suspension in MacBaker Market's case.

Both decisions reflect the board—s practice of applying a stepped penalty structure under the health code while allowing case‑by‑case mitigation where a respondent shows cause for a reduced penalty.