Board halves Fillmore Markets tobacco-sales suspension after owner appeals

The San Francisco Board of Appeals on a split hearing reduced a 10-day suspension of the tobacco-sales permit for Fillmore Market to five days after an appeal by owner Kyu (Kyo) Lee.

The Department of Public Health, represented by John Inojo (identifying himself as the departments representative), said its enforcement action followed a police-decoy operation in which a minor purchased cigarettes at Fillmore Market on Nov. 15, 2006. Inojo cited San Francisco Health Code section 1009.66 and asserted the sale violated California Penal Code provisions; the department asked the board to deny the appeal and uphold a 10-day suspension imposed after a noticed hearing. "We strongly believe that Mr. Choi was actually acting as the permittee's agent," Inojo told commissioners, describing the officers observation and recovery of marked city money.

Owner Kyu Lee told the board he has run the Fillmore Market for about 12 years without prior violations and that he briefly left the store in the care of a friend, Tae Yong Choi. "I never...violate the law," Lee said through halting English, explaining he stepped away to the restroom and that his friend was helping at the register. Maria Lee, who identified herself as present at the board microphone, echoed that it was "just bad luck" and said the family would accept the boards decision.

Commissioners questioned whether the person who made the sale was an employee or a temporary helper and whether City Police Officer Robert Ziegler had actually witnessed the transaction. Several commissioners noted the department had exercised leniency by seeking 10 days rather than the longer suspensions sometimes used and expressed sympathy for a sole proprietor with family-run staff. Commissioner Albright moved to reduce the suspension; an amended motion to cut the penalty to five days carried unanimously.

The board recorded its action as a reduction of the Department of Public Healths suspension from 10 days to five days. The board also discussed evidentiary details (a mis-identified decoy gender in a prior letter) and encouraged the appellant to bring payroll or W-2 records if he returned for further review.

The appeal hearing record included references to the police report and the departments file; the board noted an officer who witnessed the sale had offered to testify if called. The board did not order further penalties beyond the five-day suspension and closed the item.