Ramoco Marketing Group LLC d/b/a Liberty / Smoke Shop, DAB TB9543 (2025)

ORDER GRANTING COMPLAINANT’S MOTION TO IMPOSE SANCTIONS AND INITIAL DECISION AND DEFAULT JUDGMENT

On November 5, 2024, the Center for Tobacco Products (CTP) served a Complaint on Ramoco Marketing Group LLC d/b/a Liberty / Smoke Shop (Respondent), at 4512 State Road, Drexel Hill, Pennsylvania 19026.  A copy of the complaint was also filed with the Food and Drug Administration’s (FDA) Division of Dockets Management on November 6, 2024.  CTP seeks to impose a $687 civil money penalty against Respondent for violating the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq., and its implementing regulations, 21 C.F.R. pt. 1140, at least three times within a 24-month period.

On November 12, 2024, Respondent, through counsel, filed a timely answer to the complaint.  On January 3, 2025, Respondent also filed a pre-hearing brief.  Since filing the

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pre-hearing brief, however, Respondent has repeatedly disregarded my orders, has been non-responsive to CTP’s requests, and has not participated in this case in any meaningful way.  Specifically, Respondent failed to respond to CTP’s request for production of documents (RFP), failed to respond to CTP’s motion to compel discovery, failed to comply with my order granting CTP’s motion to compel discovery, and failed to respond to the present Motion to Impose Sanctions.

Currently before me is CTP’s Motion to Impose Sanctions, which requests that I impose sanctions against Respondent for failing to respond to CTP’s discovery requests and for ignoring my order granting CTP’s motion to compel discovery.  As a proposed sanction, CTP asks me to strike Respondent’s answer and issue a default judgment against Respondent pursuant to 21 C.F.R. § 17.35(c)(3).  Despite being given the opportunity to file a response, Respondent has not opposed the Motion for Sanctions.  For the reasons stated below, I find that the requested sanctions are warranted and appropriate under the circumstances.  Accordingly, I grant CTP’s Motion to Impose Sanctions, strike Respondent’s answer, and issue this decision of default judgment imposing the requested civil money penalty against Respondent.

I. Procedural History

On November 5, 2024, CTP served an administrative complaint on Respondent by United Parcel Service, in accordance with 21 C.F.R. §§ 17.5 and 17.7.  See Civil Remedies Division (CRD) Docket (Dkt.) Entry Nos. 1, 1a, 1b.  Respondent’s answer to the complaint was due by December 5, 2024.  See 21 C.F.R. § 17.9.

On November 12, 2024, Respondent, through counsel, electronically filed a timely answer to CTP’s complaint.  CRD Dkt. Entry No. 3a.1  On December 17, 2024, I issued an Acknowledgment and Pre-Hearing Order (APHO), establishing deadlines for the parties to complete discovery and file pre-hearing exchanges with any evidence they intended to rely upon at a hearing.  CRD Dkt. Entry No. 5.  Specifically, I established a deadline of January 17, 2025 for the parties to serve document requests, a deadline of March 10, 2025 for CTP to file its pre-hearing exchange, and a deadline of March 31, 2025 for Respondent to file its pre-hearing exchange.  APHO ¶¶ 4, 6.

With respect to discovery, the APHO stated that a party must produce any requested documents no later than 30 days after receiving a request for documents from the opposing party.  APHO ¶ 4; see also 21 C.F.R. § 17.23(a).  In the APHO, I also warned that I may impose sanctions against a party, up to and including dismissal of the Complaint or answer,

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for failing to comply with any order in this case, failing to prosecute or defend its case, or engaging in misconduct that “interferes with the speedy, orderly, or fair conduct of the hearing.”  APHO ¶ 21; see also 21 C.F.R. § 17.35.

On January 3, 2025, prior to the expiration of the discovery deadline and well in advance of the pre-hearing exchange deadlines, Respondent filed a pre-hearing brief.  CRD Dkt. Entry No. 6.  In the brief, Respondent argued that CTP failed to present any evidence that the alleged underage purchaser was in fact under the age of 21 or physically appeared under the age of 26.  Id. at 1-2.  Respondent’s brief did not include any proposed exhibits or testimony, nor did it acknowledge that discovery was still ongoing and the deadline for CTP to file its proposed evidence had not yet passed.  See Id.

On February 24, 2025, CTP filed a motion to compel discovery, stating it served document requests on Respondent’s counsel on January 10, 2025, but Respondent failed to respond.  CRD Dkt. Entry No. 9 at 1-2. On the same date, CTP also requested an extension of all deadlines in this case to allow time to resolve the discovery issue.  CRD Dkt. Entry No. 10 at 2.

On March 10, 2025, I issued an Order advising Respondent that it had until March 24, 2025 to respond to CTP’s motion to compel discovery.  CRD Dkt. Entry No. 11.  I warned Respondent that if it failed to respond to CTP’s motion to compel, I may grant the motion in its entirety.  Id. at 2.  I also granted CTP’s request for an extension and extended all deadlines by 45 days.  Id.

Respondent did not file a response to CTP’s motion to compel discovery.  Accordingly, on March 26, 2025, based on the representations made in the motion, I granted CTP’s motion to compel discovery and ordered Respondent to comply with CTP’s request for production of documents by April 25, 2025.  CRD Dkt. Entry No. 12.  To provide time for Respondent to comply with my Order, I extended all deadlines by an additional 30 days.  Id. at 2.  I also warned Respondent:

Failure to comply with this Order may result in sanctions, including the issuance of an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the Complaint and imposing a civil money penalty.

Id.

On April 28, 2025, CTP filed the present Motion to Impose Sanctions.  CRD Dkt. Entry No. 13.  In the motion, CTP states Respondent failed to comply with my March 26, 2025, Order granting CTP’s motion to compel discovery and has not produced any documents in response to CTP’s discovery requests.  Id. at 2.  CTP asks that I strike Respondent’s answer as a sanction for Respondent’s repeated non-compliance and non-responsiveness.  Id. CTP

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further asks that I issue an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the complaint and imposing a $687 civil money penalty.  Id.  On the same date, CTP filed a separate motion asking me to stay all deadlines pending resolution of its Motion for Sanctions.  CRD Dkt. Entry No. 14.

On April 29, 2025, I issued an Order giving Respondent until May 28, 2025, to file a response to CTP’s Motion to Impose Sanctions.  CRD Dkt. Entry No. 15 at 2.  I also granted CTP’s request to stay all deadlines pending resolution of the Motion.  Id.

To date, Respondent has not filed any response to CTP’s Motion for Sanctions.  In addition, Respondent has not produced any documents in response to CTP’s discovery requests or otherwise complied with my Order granting CTP’s motion to compel.

II. Motion to Impose Sanctions

I may sanction a party for:

(1) Failing to comply with an order, subpoena, rule, or procedure governing the proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.

21 C.F.R. § 17.35(a).

Here, I find that Respondent failed, and continues to fail, to comply with multiple orders and rules, including:

• The requirements in 21 C.F.R. § 17.23(a) and paragraph 4 of the APHO, by failing to respond to CTP’s Request for the Production of Documents within 30 days; and
• My March 26, 2025 Order granting CTP’s motion to compel discovery, by failing to produce documents responsive to CTP’s Request for the Production of Documents by January 10, 2025.

Additionally, for the last six months, I find that Respondent has failed to defend this action.  Specifically, Respondent did not file a response to CTP’s Motion to Compel Discovery, did not oppose CTP’s Motion to Impose Sanctions, and has not taken any meaningful action in this case since filing its pre-hearing brief on January 3, 2025.

Based on the foregoing, I further find that Respondent’s conduct has interfered with the speedy, orderly, and fair conduct of this proceeding.  Therefore, I conclude that Respondent’s conduct establishes a basis for sanctions pursuant to 21 C.F.R. § 17.35, and that sanctions are warranted under the circumstances.

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The sanctions I impose must relate to the nature and severity of the misconduct or noncompliance.  21 C.F.R. § 17.35(b).  Here, Respondent failed to comply with a regulatory requirement and multiple orders, despite being warned that such conduct may result in sanctions.  See, e.g., CRD Dkt. Entry No. 12; see also APHO ¶ 21.  Further, Respondent failed to respond to multiple motions, including the present Motion for Sanctions, and has failed to take any meaningful action in this case since January 2025. Respondent’s behavior suggests it is not interested in continuing to participate in these proceedings.

Respondent’s conduct has caused unnecessary delays and disruptions, interfered with CTP’s ability to prosecute its case, and prevented me from scheduling a hearing or otherwise deciding this case on the merits.  Based on the severity and ongoing nature of Respondent’s conduct, I find that the appropriate sanction is to strike Respondent’s answer to the complaint.  21 C.F.R. § 17.35(b), (c)(3); see also KKNJ, Inc. d/b/a Tobacco Hut 12, DAB No. 2678 at 10-11 (2016) (concluding administrative law judge did not abuse discretion by striking Respondent’s answer for failure to comply with discovery order). While I recognize that this is a harsh remedy, I conclude that a lesser sanction would not effectively address Respondent’s repeated noncompliance and failure to defend its case.  Therefore, CTP’s Motion to Impose Sanctions is GRANTED and Respondent’s answer to the complaint is hereby STRICKEN from the record.

III. Default Decision

Striking Respondent’s answer leaves the complaint unanswered.  Therefore, I am required to issue an initial decision by default, provided that the complaint is sufficient to justify a penalty.  21 C.F.R. § 17.11(a).  Accordingly, I must determine whether the allegations in the complaint establish violations of the Act.

For purposes of this decision, I assume the facts alleged in the complaint to be true, pursuant to the provisions of 21 C.F.R. § 17.11(a).  Specifically, CTP alleges the following facts in its complaint:

• At approximately 6:45 PM on December 2, 2022, at Respondent’s business establishment, at 4512 State Road, Drexel Hill, Pennsylvania 19026, an FDA‑commissioned inspector conducted an inspection.  During this inspection, a person younger than 21 years of age was able to purchase a package of Newport Box 100s cigarettes.  Additionally, Respondent’s staff failed to verify, by means of photographic identification containing a date of birth, that the purchaser was 21 years of age or older;
• In a warning letter dated January 5, 2023, CTP informed Respondent of the inspector’s December 2, 2022 documented violations, and that such an action

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• violates federal law.  The letter further warned that Respondent’s failure to correct its violation could result in a civil money penalty or other regulatory action;
• At approximately 6:29 PM on August 14, 2024, at Respondent’s business establishment, 4512 State Road, Drexel Hill, Pennsylvania 19026, an FDA‑commissioned inspector conducted an inspection.  During this inspection, a person younger than 21 years of age was able to purchase a package of Newport Box cigarettes.  Additionally, Respondent’s staff failed to verify, by means of photographic identification containing a date of birth, that the purchaser was 21 years of age or older.

These facts establish Respondent Liberty / Smoke Shop’s liability under the Act and demonstrate that Respondent committed at least three violations of the Act between December 2, 2022, and August 14, 2024.2  The Act prohibits misbranding of a regulated tobacco product.  21 U.S.C. § 331(k).  A regulated tobacco product is misbranded if sold or distributed in violation of regulations issued under section 906(d) of the Act.  21 U.S.C. § 387c(a)(7)(B); 21 C.F.R. § 1140.1(b).  The Secretary issued the regulations at 21 C.F.R. Part 1140 under section 906(d) of the Act.  21 U.S.C. § 387a-1; see 21 U.S.C. § 387f(d)(1); 75 Fed. Reg. 13,225, 13,229 (Mar. 19, 2010); 81 Fed. Reg. 28,974, 28,975-76 (May 10, 2016); 89 Fed. Reg. 70, 483, 70, 485 (Aug. 30, 2024).  Under section 906(d)(5) of the Act, no retailer may sell regulated tobacco products to any person younger than 21 years of age and retailers must verify, by means of photographic identification containing a purchaser’s date of birth, that no regulated tobacco product purchasers are younger than 21 years of age.

CTP requests a civil money penalty of $687 against Respondent for committing three violations of the Act within a 24-month period.  The amount requested by CTP is a permissible penalty under 21 C.F.R. § 17.2.  Therefore, I find that a civil money penalty of $687 is warranted and impose a penalty in that amount against Respondent.

ORDER

For the reasons stated above, I enter default judgment and impose a civil money penalty against Respondent, Ramoco Marketing Group LLC d/b/a Liberty / Smoke Shop, in the amount of $687.  Pursuant to 21 C.F.R. § 17.11(b), this order becomes final and binding upon both parties after 30 days of the date of its issuance.