Checkers Liquors XXVI, LLC d/b/a Checkers Discount Liquors, DAB TB9240 (2025)

INITIAL DECISION

The Center for Tobacco Products (CTP) seeks to impose a $687 civil money penalty (CMP) against Respondent, Checkers Liquors XXVI, LLC d/b/a Checkers Discount Liquors for three violations within a 24-month period of the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq.,1 and its implementing regulations, 21 C.F.R. Part 1140 (Tobacco Regulations).  Respondent concedes that it violated the Act and Tobacco Regulations,2 but contends that the requested CMP should be reduced.  For the reasons discussed below, I conclude that a CMP of $687 is appropriate.

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I.     Background and procedural history

CTP began this case by serving the Complaint on Respondent at 9881 North Kendall Drive, Miami, Florida 33176, and filing a copy of the Complaint with the Departmental Appeals Board (DAB), Civil Remedies Division (CRD).  CRD Docket (Dkt.) Entry Numbers (Nos.) 1 (Complaint), 1b (Proof of Service).  The Complaint alleges that Respondent impermissibly sold regulated tobacco products to underage purchasers and failed to verify the purchasers were 21 years of age or older, thereby violating the Act and Tobacco Regulations.  CTP seeks a civil money penalty of $687 against the Respondent for three violations of the Act and tobacco regulations within a 24-month period.  Complaint ¶ 1.

On April 29, 2024, Respondent registered for the DAB Electronic Filing System (DAB E-File).  CRD Dkt. Entry No. 23.  On May 10, 2024, Respondent timely filed its Answer. CRD Dkt. Entry No. 3 (Answer).  In its Answer, Respondent stated that it “accepts all violations caused by the sale of products such as TOBACCO to a minor under the age of 21” and asked for the penalty to be reduced.  Id. at 1 (emphasis in original).  Respondent offered as a defense that the violation was committed by an employee “who did not fulfill his assigned duties,” the responsible “employee is no longer with the company,” and this was the first violation of law Respondent has committed.  Id.  Respondent also stated that “the necessary measures will be taken to properly comply with the statutes and regulations governing the sale of .  .  .  TOBACCO to minors .  .  .  ”  Id.

On May 14, 2024, the previously assigned Administrative Law Judge, Kourtney LeBlanc, issued an Acknowledgment and Status Report Order (ASRO) acknowledging receipt of Respondent’s Answer and ordering the parties to file a joint status report by June 12, 2024.  CRD Dkt. Entry No. 4 (ASRO).  On June 12, 2024, CTP filed a Joint Status Report stating that the parties intended to engage in further settlement discussions and that CTP would notify the Departmental Appeals Board if the parties agreed to a settlement.  CRD Dkt. Entry No. 6.

On June 20, 2024, Judge LeBlanc issued a Pre-Hearing Order (PHO) establishing procedural deadlines for this case.  CRD Dkt. Entry No. 7 (PHO).  On July 3, 2024, this case was transferred to me.  CRD Dkt. Entry No. 8.

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On July 17, 2024, and August 29, 2024, Respondent filed an out-of-order3 pre-hearing exchange consisting of the Pre-Hearing Brief of Respondent and six documents previously submitted to CTP in response to CTP’s discovery request to Respondent. CRD Dkt. Entry Nos. 9-15.  In its pre-hearing brief, Respondent states that it was not true that Respondent sold tobacco products to a person younger than 21 years of age on May 1, 2022, and February 13, 2024, stating that they “were not made aware of the first incident on May 1, 2022 .  .  .  we had no acknowledgemnet [sic] of this matter.”  CRD Dkt. Entry No. 9 at ¶¶ 4-5.

On September 13, 2024, CTP timely filed its pre-hearing exchange consisting of the Informal Brief of Complainant (CTP Br.), Complainant’s List of Proposed Witnesses and Exhibits, and twenty proposed exhibits.  CRD Dkt. Entry Nos. 16-16u.  CTP’s exchange included the written direct testimony of two proposed witnesses: 1) James Bowling, Deputy Division Director, Office of Compliance and Enforcement, CTP Exhibit (Ex.) 3; and 2) Krystle Kirkland-Mobley, FDA-commissioned officer for the State of Florida, CTP Ex. 4.  Id. at 16d-e.

On October 10, 2024, I held a pre-hearing conference (PHC) in this case.  I explained my role as an impartial Administrative Law Judge, the issues to be decided in this case, and the parties’ respective burdens of proof.  CRD Dkt. Entry No. 21 (Order Summarizing PHC and Schedule for Submission of Final Briefs (PHC Order)); see 21 C.F.R. §§ 17.19, 17.33.  With respect to liability, Respondent’s representative stated that it admits liability as alleged in the complaint.  PHC Order at 1-2.  Respondent’s representative also stated that he understood that the business is responsible for the actions of the employees despite training them on how to comply with the law and mentioned that the two responsible employees were no longer with the company.  Id. at 1-2.  Accordingly, I explained that the hearing will be limited to the sole issue of the appropriateness of the civil money penalty, considering any aggravating or mitigating factors.  Id. at 2.

Also, during the PHC, we discussed the parties’ pre-hearing exchange submissions. Respondent stated that it did not object to CTP’s proposed exhibits being admitted into evidence.  Id. at 2.  Respondent also stated that it did not intend to cross-examine CTP’s proposed witnesses.  Id. at 3.  Therefore, CTP Exhibits 1-20 were admitted into the record.  Id. at 2.  I noted that Respondent’s proposed exhibits were not marked properly, so I marked them as Respondent’s Exhibits 1 through 6.  Id.  CTP objected to the admission of Respondent Exhibits 1-6 on the grounds that the authenticity of the documents could not be determined along with Respondent’s intended use of the documents.  Specifically, CTP stated that it could not determine when the photos of

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signage were taken, whether there was an English version of the Spanish sign that Respondent submitted to the record, and whether and/or when both signs were posted at Respondent’s establishment.  Respondent identified where the English version of the Spanish sign was available in the record, stated that the signs were posted prior to the inspection, and that its employees also received training on Respondent’s tobacco policies.  Id.  Nevertheless, in response to CTP’s objections, I ordered Respondent to file a declaration authenticating the proposed exhibits and a supplemental response to paragraph 6 (Appropriateness of civil money penalty) of the Pre-Hearing Brief of Respondent form explaining how the proposed exhibits mitigate the requested civil money penalty.  I informed CTP’s counsel that she would have an opportunity to renew her objections to Respondent’s exhibits and indicate whether she wished to cross-examine Respondent’s declarant after Respondent supplemented its pre-hearing exchange before I issue a ruling on the admission of Respondent Exhibits 1-6.  Id. at 2-3.

I determined that, given Respondent’s admission of liability and waiver of cross-examination, there was no need for a hearing to cross examine either of CTP’s witnesses. The parties agreed to waive appearance at an oral hearing.  I set a schedule for the submission of the parties’ final briefs on the issue of the appropriateness of the civil money penalty and informed the parties that I would issue a decision on the written record after the record was closed.  Id. at 3; see also 21 C.F.R. §§ 17.33, 17.34, 21 C.F.R. § 17.45(a), and 21 U.S.C. § 333(f)(5)(B) (listing the factors to be considered in determining the amount of a civil money penalty).

On October 25, 2024, Respondent filed the Declaration of Damian Tamayo, Vice President of Checkers Discount Liquors.  CRD Dkt. Entry No. 19.  The declaration included an exhibit list and attached amended exhibits remarked as Respondent Exhibits 1 through 5.4  Id.  Also on October 25, 2024, Respondent filed a supplemental response to paragraph 6 of its pre-hearing brief arguing why it believes the civil money penalty is inappropriate.  CRD Dkt. Entry No. 20.

My October 31, 2024, Order provided CTP until November 14, 2024, to renew its objection to the admission of Respondent Exhibits 1 through 5, if desired, and ordered CTP to indicate whether it wants to cross-examine Respondent’s witness, Mr. Tamayo. CRD Dkt. Entry No. 21 at 3.  My Order gave Respondent until November 29, 2024, to respond to any of CTP’s objections to the admission of Respondent Exhibits 1 through 5. Id.  Lastly, my Order provided the parties with the opportunity to file simultaneous briefs by January 6, 2025, and set a deadline of February 5, 2025, for the parties to file final simultaneous responsive briefs.  Id. at 3-4. 

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On November 14, 2024, Supervisory Regulatory Counsel for CTP, sent an electronic mail message to the attorney-advisor assisting me with this case, stating that “CTP does not renew its objection to the admission of Respondent’s Exhibits 1 through 5.  CTP also does not desire to cross examine Respondent’s witness, Mr. Tamayo.”  CRD Dkt. Entry No. 22.  Neither party filed final briefs.

The administrative record is now complete and closed, and this matter is ready for a decision.  I will consider the full administrative record in deciding this case, except for any excluded evidence. 21 C.F.R. §§ 17.41(b), 45(a).

II.     Issue

The issue in this case is whether a CMP in the amount of $687 is appropriate, considering any mitigating or aggravating factors that I find in this case.  21 C.F.R. § 17.45.

III.     Admission of evidence

The regulations grant me the authority to “receive, rule on, exclude, or limit evidence.” 21 C.F.R. § 17.19(b)(11).  I also have the authority to “[w]aive, suspend, or modify any rule in this part if the presiding officer determines that no party will be prejudiced, the ends of justice will be served, and the action is in accordance with law .  .  .  .”  21 C.F.R. § 17.19(b)(17).  As explained above, I previously ADMITTED CTP Exhibits 1 through 20 into the administrative record at the PHC.  Initially, CTP objected to the admission of the documents I marked at the PHC as Respondent Exhibits 1 through 6 on the grounds that the authenticity of the documents could not be determined along with Respondent’s intended use of the documents.  After Respondent supplemented its prehearing exchange with a declaration, amended exhibits, and a supplemental brief, CTP declined to renew its objection to the admission of Respondent’s Exhibits 1 through 5. CRD Dkt. Entry No. 22.  Accordingly, I now ADMIT Respondent Exhibits 1 through 5 into the record.  CRD Dkt. Entry No. 19 at 3-24.  To ensure that Respondent is not prejudiced, I also ADMIT Respondent’s unmarked six exhibits submitted before the PHC.  CRD Dkt. Entry Nos. 10-15. 

IV.     Analysis, findings of facts, and conclusions of law

1. Legal standard

The Act prohibits the misbranding of tobacco products while they are held for sale after shipment in interstate commerce.  21 U.S.C. § 331(k).  Tobacco products are misbranded if they are sold or distributed in violation of the Act or applicable regulations issued under section 906(d) of the Act.  21 U.S.C. § 387c(a)(7)(B); 21 C.F.R. § 1140.1(b). Section 906(d)(5) of the Act prohibits the sale of regulated tobacco products to any person younger than 21 years of age.  21 U.S.C. § 387f(d)(5); see also 21 C.F.R

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§ 1140.14(b)(1).  The Tobacco Regulations, codified at 21 C.F.R. Part 1140, require retailers to verify, by means of photographic identification containing a purchaser’s date of birth, that no regulated tobacco product purchaser is younger than 21 years of age.  21 C.F.R § 1140.14(b)(2)(i).

CTP has authority to seek a CMP from any person who violates a requirement of the Act related to tobacco products, subject to the maximum amounts authorized by the Act, as adjusted for inflation.  21 U.S.C. §§ 333(f)(5)(A), 333(f)(9)(A); see also 21 C.F.R § 17.2; 45 C.F.R. § 102.3.  Section 103(q)(2) of the Act establishes progressively increasing maximum CMPs for subsequent tobacco violations that occur within prescribed timeframes.  21 U.S.C. § 333 note (Guidance); see also 45 C.F.R. § 102.3 (Table 1:  Civil Monetary Penalty Authorities Administered by HHS).  All violations observed during an initial failed inspection are counted as a single violation, and each separate violation observed during subsequent failed inspections count as a discrete violation.  See Orton Motor, Inc., 884 F.3d at 1214 (upholding FDA’s methodology of counting tobacco violations).

CTP has the burden to prove, by a preponderance of the evidence, the appropriateness of the proposed CMP assessed against Respondent.  21 C.F.R. § 17.33(b).  Respondent has the burden to prove any mitigating factors, likewise by a preponderance of the evidence. 21 C.F.R. § 17.33(c).  The Supreme Court of the United States has described the preponderance of the evidence standard as requiring that the trier-of-fact believe that the existence of a fact is more probable than its nonexistence before finding in favor of the party that had the burden to persuade the judge of the fact’s existence.  Concrete Pipe and Prods. Of Cal., Inc. v. Constr. Laborers, 508 U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring)).

When determining the appropriate amount of a CMP, I am required to consider any “circumstances that mitigate or aggravate the violation” and “the factors identified in the statute under which the penalty is assessed .  .  . ”  21 C.F.R. §§ 17.34(a); 17.34(b). Specifically, I must consider “the nature, circumstances, extent and gravity of the violations and, with respect to the violator, ability to pay, effect on ability to continue to do business, any history of prior such violations, the degree of culpability, and such other matters as justice may require.”  21 U.S.C. § 333(f)(5)(B).  Also, “for purposes of mitigating a civil penalty .  .  .  [I] shall consider the amount of any penalties paid by the retailer to a State for the same violation” and whether the retailer has an “approved training program.”  21 U.S.C. § 333 note.

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2. Appropriateness of the CMP

As explained above, Respondent conceded liability for violating the Act and Tobacco Regulations by selling regulated tobacco products to persons younger than 21 years of age and failing to verify the age of purchasers on May 1, 2022, and February 13, 2024. Answer at 1; PHC Order at 1; see also 21 U.S.C. § 387f(d)(5); 21 C.F.R. § 1140.14(b)(2)(i).  Consequently, Respondent is liable for three violations of the Act and Tobacco Regulations within a 24-month period.  Orton Motor, Inc., 884 F.3d at 1214.  In its Complaint and pre-hearing brief, CTP argues that imposing the maximum penalty amount of $687 against Respondent is appropriate.  CRD Dkt. Entry Nos. 1 (Complaint ¶ 1); 16 (Informal Brief of Complainant (CTP Br.)) at 15.  In its Answer and pre-hearing briefs, Respondent argues that the CMP should be reduced.  CRD Dkt. Entry Nos. 3 (Answer at 1);  9 (Respondent’s Prehearing Brief (R. Br.)) and 20 (Respondent’s Supplemental Brief (R. Supp. Br.)).  For the reasons explained below, I find that a CMP of $687 is appropriate.

1. Nature, circumstances, extent, and gravity of the violations

Respondent committed at least three violations within a 24-month period.  On May 1, 2022, and February 13, 2024, Respondent sold regulated tobacco products to underage purchasers and failed to verify, by means of photo identification containing a date of birth, that the purchasers were of sufficient age.  CTP seeks the maximum CMP of $687. Complaint ¶ 1; CTP Br. at 15; see 21 U.S.C. § 387f(d)(5); see also 45 C.F.R. § 102.3 (Table 1 to § 102.3 – Civil Monetary Penalty Authorities Administered by HHS); see also 89 Fed. Reg. 64,815 (eff. Aug. 8, 2024) (final rule establishing the 2024 annual inflation adjustment amounts for Table 1).

Respondent has not shown that the nature, circumstances, extent or gravity of the violations warrants a reduction in the requested CMP.  Respondent argues that it has “policies and regulations” requiring compliance with tobacco sales laws.  R. Br. at 4, 7; R. Ex. 1 at 1-2; R. Ex. 3 at 1.  Respondent also argues that its employees were aware of Respondent’s policies and tobacco laws, and the employees who committed the violations failed to fulfill their job duties, which included checking the identification of purchasers who look under the age of 30.  Answer at 1; R. Br. at 4; R. Supp. Br. at 1; R. Ex. 1 at 1-2; R. Ex. 3 at 1.  As Respondent acknowledged at the PHC, Respondent’s “business is responsible for the actions of the employees despite training them on how to comply with the law .  .  .  . ”  PHC Order at 2.  Respondent’s inability to comply with federal tobacco regulations is serious in nature, and the CMP amount should be set accordingly.  The requested CMP of $687 is proportionate to the facts and circumstances of the violations.

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2. Respondent’s ability to pay and effect on ability to do business

Respondent has not argued that it is unable to pay the requested CMP or that the CMP would affect Respondent’s ability to do business.  However, Respondent submitted a 2022 U.S. Income Tax Return and tobacco sales reports for May 1, 2022, and February 13, 2024.  R. Ex. 4; R. Ex. 5 at 1, 3.  The tax return reflects that the Respondent is an “S” corporation for federal tax purposes and had a net loss in 2022.  R. Ex. 4 at 1.  However, the tax return indicates that Respondent had a substantial amount of assets (consisting mostly of inventories and intangible assets), a large amount of retained earnings, and relatively low liabilities at the end of the year.  Id. at 2.  Respondent did not submit a 2023 tax return or any other financial information for 2023 or 2024.  The tobacco sales reports indicate that Respondent sold fewer than 50 tobacco products in total for both dates at issue, profiting only $54.34.  Thus, assuming that Respondent averages approximately $25 per day in profits from tobacco sales, the requested CMP of $687 is less than one month’s tobacco profits (approximately $750) for Respondent.  In reviewing Respondent’s submissions, I do not find that Respondent has an inability to pay the $687 CMP.  Also, given the nominal amount of the requested CMP, I do not find that paying $687 would put Respondent out of business.

3. History of prior violations

Respondent admitted to three violations occurring on May 1, 2022, and February 13, 2024.  Answer at 1; PHC Order at 1-2.  This is CTP’s first enforcement action against Respondent, and there is no indication in the record of any prior violations of the Act or Tobacco Regulations.  Despite Respondent’s assertions that it was unaware and did not receive any “information” regarding the first violation on May 1, 2022, Respondent admits that the violation occurred.  Answer at 1; R. Br. at 4, 6-7; R. Supp. Br. at 1; R. Ex. 1 at 4.

Additionally, the evidence of record establishes that Respondent had notice and was aware of the May 1, 2022, violation.  CTP submitted the June 14, 2022, Warning Letter informing Respondent about the May 1, 2022, violation.  CTP Ex. 1 at 1.  CTP also submitted Respondent’s June 19, 2022, Warning Letter Response to the May 1, 2022, violation.  CTP Ex. 2 at 1-2.  The Warning Letter Response was signed by Respondent’s manager, whom Respondent acknowledges committed the violation on May 1, 2022.  Id.; see also R. Ex. 1 at 1; R. Ex. 2 at 2-3.   Respondent did not contest the Warning Letter or Warning Letter Response or submit any other evidence to refute knowledge of the May 1, 2022, violation.  I agree with CTP that the Warning Letter and Warning Letter Response demonstrate a prior violation.  However, I disagree with CTP’s contention that Respondent’s repeated violation in this case was based on an unwillingness or inability to comply with the law.  Respondent states the employees who sold tobacco products to minors on May 1, 2022, and February 13, 2024, are no longer employed with the company.  Answer at 1; R. Ex. 1 at 2.  Moreover, Respondent has implemented some

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policies and practices concerning the sale of tobacco products and compliance with federal law.  See, e.g., CRD Dkt. Entry Nos. 14-15 (photos showing tobacco products behind the sales counter and signage indicating Respondent’s business cards purchasers under 30 years of age); R. Ex. 2 at 7-10 (training certificates); R. Ex. 3 at 1 (sign regarding employee duties, including tobacco sales).  Therefore, I find that the history of violations in this case is not as significant as CTP contends.  However, I note that the progressive schedule of maximum CMPs already accounts for Respondent’s minimal history of prior violations by setting the penalty at the relatively low amount of $687.

4. Degree of culpability

As Respondent admitted to the violations alleged in the Complaint, I hold it fully culpable for three violations of the Act and Tobacco Regulations.  Despite acknowledging liability, however, Respondent contends that it was not aware of the May 1, 2022, violation and did not receive any information or paperwork related to the violation.  Answer at 1; R. Br. at 4, 6-7; R. Supp. Br. at 1; R. Ex. 1 at 4.  Respondent argues that, had it known about the first violation, it would have taken measures to reinforce its store policies and “to prevent it from happening again.”  Answer at 1; R. Br. at 4, 6-7; R. Supp. Br. at 1; R. Ex. 1 at 4.

I do not find Respondent’s arguments that it did not receive any information about the May 1, 2022, inspection or violation legally sufficient to reduce Respondent’s culpability because Respondent’s argument is not persuasive or supported by the evidence of record. As explained above, Respondent admitted the May 1, 2022, violation occurred and did not challenge CTP’s evidence proving the May 1, 2022, violation.  PHC Order at 1-2; CTP Ex. 1 at 1; CTP Ex. 2 at 1-2.  Further, the Warning Letter Response identified several corrective actions that Respondent stated it would take to prevent future violations.  CTP Ex. 2 at 2.  Specifically, Respondent stated it would clearly display materials informing customers and employees of the age requirements for selling tobacco products and verifying a purchaser’s age, display a calendar with the minimum age requirement, retrain staff on tobacco sales law, implement tobacco sale policies, and provide written notification of policies designed to prevent tobacco sales to underage purchasers.  Id.  Thus, I find that Respondent was aware of the May 1, 2022, violation and agreed to take specific corrective action before the two February 13, 2024, violations occurred.  Accordingly, I deem Respondent fully culpable for the three violations on May 1, 2022, and February 13, 2024.

5. Employee training program

The Tobacco Control Act establishes two schedules of CMPs, depending on whether retailers have implemented a training program that complies with FDA standards.  21 U.S.C. § 333 note (quoting Tobacco Control Act § 103(q)(2)(A)-(B)); see also 45 C.F.R. § 102.3.  Until FDA promulgates regulations establishing standards for approved retailer

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training programs, CTP has decided to seek CMPs using the lower schedule for all retailers.  Guidance for Industry, Tobacco Retailer Trainer Programs, at 18 (Rev. Aug. 2018), https://www.fda.gov/media/79013/download, (non-binding guidance document containing various recommendations for retailer training programs).

Respondent asserts that the responsible employee at the time of the May 1, 2022, violation “was trained and had knowledge of the functions, rules, and laws that govern the sale of alcohol and tobacco.”  R. Supp. Br. at 1; R. Ex. 1 at 1-2.  Respondent submitted a training certificate from Responsible Vendors, Inc. confirming that the responsible employee had completed training before and after the May 1, 2022, violation. R. Ex. 2 at 11-14.  Similarly, Respondent asserts that the responsible employee at the time of the February 13, 2024, violation “received the corresponding training at the time of entering [Respondent’s] company, even if he ha[d] not been able to take the trainings from “RESPONSIBLE VENDORS, INC.  .  .  .”  R. Ex. 1 at 2 (emphasis in original). Respondent also contends that both employees were aware that their work functions and responsibilities included checking identification “for alcohol, tobacco and lottery sales for anyone that looks under the age of 30.”  R. Ex. 3 at 1; R. Ex. 1 at 1-2; see also CRD Dkt. Entry Nos. 14-15 (photos showing tobacco products behind the sales counter and signage indicating Respondent’s business cards purchasers under 30 years of age). Respondent asserts that it has reinforced its policies on tobacco sales since the February 13, 2024, violation and will take the necessary measures to comply with applicable laws governing the sale of cigarettes to prevent future violations.  R. Brief at 4, 7; R. Supp. Br. at 1; R. Ex. 1 at 2.  However, neither employee was disciplined “because at the time [Respondent was] notified of these failures, the employees in question were no longer working for [Respondent’s] company.”  R. Ex. 1 at 2.

CTP has not contested any of Respondent’s statements concerning its policies and employee training program to ensure compliance with tobacco laws.  Thus, I find that Respondent’s evidence credibly demonstrates that Respondent has an earnest desire to comply with the Act and Tobacco Regulations and, to that end, has implemented policies and an employee training program.  However, I also find that those policies and training program are ineffective because Respondent committed three violations within a 24-month period.  I also note that CTP seeks a $687 CMP based on the lower penalty schedule, which already accounts for mitigating the CMP based on a retailer’s training program.  Accordingly, I find that this factor does not further mitigate the proposed CMP amount.

6. State penalties

Respondent has not presented any evidence that it has paid any penalty to the state of Florida for the same violations.  21 C.F.R. § 17.34(b).  Accordingly, this factor is neither aggravating nor mitigating of the proposed penalty.

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7. Other matters as justice may require

The Act gives me discretion to consider any other evidence or arguments to mitigate the amount of the CMP.  21 U.S.C. § 333(f)(5)(B).  Respondent has taken accountability for the three violations, expressed a sincere desire to comply with the Act and Tobacco Regulations, and insists that necessary measures will be taken to avoid future violations. R. Supp. Br. at 1.  While commendable, Respondent’s proclamations did not prevent the recurrence of violations.  Failing to check identification and selling tobacco products to underage purchasers are serious violations.

In summary, Respondent has violated the regulations on two separate occasions, constituting three violations within a 24-month period, and has failed to prove mitigating circumstances.  Thus, I find no basis for reducing the CMP sought by CTP, which I find proportional and appropriate in this case.  Based on the foregoing reasoning, I find the penalty amount of $687 to be appropriate under 21 U.S.C. §§ 333(f)(5)(B) and 333(f)(9).

V.     Conclusion

Pursuant to 21 C.F.R. § 17.45, I enter a judgment in the amount of $687 against Respondent, Checkers Liquors XXVI, LLC d/b/a Checkers Discount Liquors for three violations of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq., and its implementing regulations, 21 C.F.R. pt. 1140, within a 24- month period.  Pursuant to 21 C.F.R. §§ 17.11(b), 17.45(d), this decision becomes final and binding upon both parties after 30 days of the date of its issuance.