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Board of Appeals overturns 15‑day suspension for San Bruno Silver Super Shell; cites insufficient evidence
Summary
The San Francisco Board of Appeals unanimously overruled a 15‑day tobacco‑sales permit suspension for San Bruno Silver Super Shell after finding the Department of Public Health's evidence inconsistent and insufficient to show a willful sale to a minor.
The San Francisco Board of Appeals on a unanimous vote overturned a Department of Public Health order suspending the tobacco‑sales permit for San Bruno Silver Super Shell, concluding the department did not meet its burden of proof.
At issue was a DPH action ordering a 15‑day suspension after a minor‑decoy operation in September 2006. Dr. Ojo, speaking for the department, told the board the police decoy entered the store, purchased a pack of cigarettes and that the clerk failed to ask for identification and left cigarettes in a self‑service area, in violation of San Francisco Health Code §1009.66 and related state law. The department recommended the suspension as permitted for a first offense.
Permittee Dennis Wong and counsel disputed the department’s account, saying the clerk was newly on the job, that the clerk’s declaration says no completed sale occurred, and that pricing and change details in the police report were inconsistent with receipts and testimony. Commissioners flagged multiple inconsistencies in the record — including conflicting reports about the brand sold, whether change was returned, and the absence of the supervising officer or inspector at the hearing.
Commissioner Holland moved to overrule the suspension on the ground that DPH’s evidence was insufficient to support a finding of a willful violation. Commissioners who spoke during deliberations said the competing accounts and template‑like police forms left reasonable doubt about whether a completed sale had occurred and whether the report described this particular incident accurately. The motion passed 5–0.
The board recorded no additional conditions and did not delay the department from refining procedures; members urged DPH to ensure declarations and police reports are case‑specific in future enforcement actions. There was no immediate rehearing request filed at the hearing; the department may pursue further administrative or legal options under its rules.
Votes: Motion to overturn 15‑day suspension — passed 5–0 (Commissioners Fung, Knox, Garcia, Albright and Holland voted Aye).
