S&A Mini Mart, Inc. d/b/a S&A Mini Mart / Reemas, DAB TB10378 (2026)

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

The Center for Tobacco Products (CTP) filed an Administrative Complaint (Complaint) against Respondent S&A Mini Mart, Inc. d/b/a S & A Mini Mart / Reemas, alleging facts and legal authority sufficient to justify imposing a civil money penalty of $356.  The Complaint alleges that Respondent impermissibly sold regulated tobacco products to a person younger than 21 years of age, failed to verify that the purchaser was of sufficient age, and opened packages of cigarettes to sell individual cigarettes, thereby violating the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq., and its implementing regulations, Cigarettes and Smokeless Tobacco, 21 C.F.R. pt. 1140.  CTP seeks a civil money penalty of $356.

During the course of these administrative proceedings, Respondent failed to comply with judicial orders and procedures governing this proceeding and failed to defend its action, which interfered with the speedy, orderly, or fair conduct of this proceeding.  21 C.F.R. § 17.35(a).  Accordingly, pursuant to 21 C.F.R. § 17.35, I strike Respondent’s Answer and issue this decision of default judgment.

Page 2

I. Procedural History

On July 1, 2025, CTP served the Complaint on Respondent, located at 1338 Electric Avenue, Buffalo, New York 14218, by United Parcel Service, pursuant to 21 C.F.R.
§§ 17.5 and 17.7.  Civil Remedies Division (CRD) Docket (Dkt.) Entry Numbers (Nos.) 1 (Complaint), 1b (Proof of Service).  On July 27, 2025, CRD received Respondent’s timely filed Answer.  CRD Dkt. Entry No. 3.  In its Answer, Respondent denied the allegations in the Complaint and offered defenses, stating that Respondent did not personally commit the violations, and that an employee acting without Respondent’s knowledge or authorization committed the violations.  Respondent asked for leniency as the penalty is a financial burden for a small business.  See CRD Dkt. Entry No. 3 at 1-2. 

On July 28, 2025, I issued an Acknowledgment and Pre-Hearing Order (APHO) which established the procedures for presenting evidence and arguments in this case including a deadline of August 20, 2025, for the parties to serve requests for production of documents.  The APHO directed the party receiving a request to provide the requested documents no later than 30 days after the request was made.  Id. ¶ 4.  Further, the APHO warned the parties that “I may impose sanctions including, but not limited to, dismissal of the complaint or answer, if a party fails to comply with any order (including this order), fails to prosecute or defend its case, or engages in misconduct that interferes with the speedy, orderly or fair conduct of this hearing.”  Id. ¶ 21; 21 C.F.R. § 17.35.

On August 29, 2025, CTP filed a Status Report stating the parties were unable to reach a settlement, and that CTP attempted to contact Respondent to discuss the filing of a Joint Status Report but was unable to reach Respondent.  CRD Dkt. Entry No. 6 at 1.

On October 8, 2025, CTP filed a Motion to Compel Discovery and two attachments, and a Motion to Extend Deadlines.  CRD Dkt. Entry Nos. 7, 7a-7b, 8.  CTP stated that it served its Request for Production of Documents (RFP) on Respondent on August 29, 2025,1  but CTP had not received a response from Respondent.  CRD Dkt. Entry No. 7 at 1-2.  On October 9, 2025, I issued an Order instructing Respondent to file a response to CTP’s Motion to Compel Discovery by October 24, 2025.  CRD Dkt. Entry No. 9 at 1. Respondent was warned “that if it fail[ed] to respond, I may grant CTP’s motion in its entirety.”  Id.

On October 27, 2025, as Respondent had not responded to CTP’s Motion to Compel Discovery as instructed, I issued an order granting CTP’s Motion to Compel Discovery and gave Respondent until November 5, 2025 to comply with CTP’s RFP.  CRD Dkt. Entry No. 10 at 1.  Respondent was again warned that:

Page 3

Failure to do so 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 November 7, 2025, CTP filed Complainant’s Status Report and Motion to Impose Sanctions (Motion to Impose Sanctions).  CRD Dkt. Entry No. 11.  In its Motion to Impose Sanctions, CTP advised that Respondent did not produce responsive documents in compliance with the October 27, 2025 Order Granting its Motion to Compel Discovery. Id. at 1-2.  CTP requested that I strike Respondent’s Answer and issue a default judgment imposing the $356 civil money penalty sought.  Id.  Also, on November 7, 2025, CTP filed a Motion to Stay Deadlines pending the resolution of its Motion to Impose Sanctions. CRD Dkt. Entry No. 12.  On November 10, 2025, I issued an Order giving Respondent until November 24, 2025 to respond to CTP’s Motion to Impose Sanctions and stayed all deadlines as requested.  CRD Dkt. Entry No. 13.  My November 10, 2025 Order also warned Respondent that if it failed to file a response, “I may grant CTP’s motion in its entirety.”  Id. at 1 (original emphasis omitted).

To date, Respondent has not responded to CTP’s Motion to Impose Sanctions.  Further, 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 Discovery.

II. Striking Respondent’s Answer

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).

Respondent failed to comply with the following orders and procedures governing this proceeding:

• Respondent failed to comply with paragraph 4 of my July 28, 2025 APHO, when it failed to respond to CTP’s Request for Production of Documents within 30 days; and
• Respondent failed to comply with my October 27, 2025 Order Granting Motion to Compel Discovery, requiring Respondent to comply with CTP’s

Page 4

• Request for Production of Documents.

Respondent also failed to defend its action.  21 C.F.R. § 17.35(a)(2).  Specifically, Respondent failed to file a timely response to my October 9, 2025 Order, giving it an opportunity to respond to CTP’s Motion to Compel Discovery and failed to file a response to my November 10, 2025 Order, giving it an opportunity to file a response to CTP’s Motion to Impose Sanctions.  This leads me to conclude that Respondent has abandoned its defense of this case.

In the absence of any sufficient explanation from Respondent, I find no basis to excuse Respondent’s continued failure to comply with various orders in this administrative proceeding.  Despite explicit warnings that failure to comply with Orders could result in sanctions, Respondent did not comply with two Orders.  See CRD Dkt. Entry Nos. 4 ¶ 21; 10.  Accordingly, I find that Respondent failed to comply with judicial orders and procedures governing this proceeding, failed to defend its case, and, as a result, engaged in a pattern of misconduct that interfered with the speedy, orderly, and fair conduct of the hearing.  The harshness of the sanctions I impose must relate to the nature and severity of the misconduct or failure to comply.  21 C.F.R. § 17.35(b).

I find that Respondent’s actions are sufficiently egregious and warrant striking its Answer and issuing a decision by default, without further proceedings.  21 C.F.R. § 17.35(b), (c)(3); see also KKNJ, Inc. d/b/a Tobacco Hut 12, DAB No. 2678 at 8 (2016) (concluding that “the ALJ [Administrative Law Judge] did not abuse her discretion in sanctioning Respondent’s ongoing failure to comply with the ALJ’s directions by striking Respondent’s answer to the Complaint.”).  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).  Pursuant to 21 C.F.R. § 17.11(a), I am required to “assume the facts alleged in the [C]omplaint to be true” and, if those facts establish liability under the Act, issue a default judgment and impose a civil money penalty.

Accordingly, I must determine whether the allegations in the Complaint establish violations of the Act.
Specifically, CTP alleges the following facts in its Complaint:

• Respondent owns S & A Mini Mart / Reemas, located at 1338 Electric Avenue, Buffalo, New York 14218.

Page 5

• Respondent’s establishment receives tobacco products in interstate commerce, including Newport cigarettes and Black & Mild Wine cigars, and holds them for sale after shipment in interstate commerce.
• At approximately 5:32 PM on September 5, 2024, at Respondent’s business establishment, an FDA-commissioned inspector conducted an inspection. During this inspection, a person younger than 21 years of age was able to purchase a Black & Mild Wine cigar.  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 September 26, 2024, CTP informed Respondent of the inspector’s September 5, 2024 documented violations, and that such actions violate federal law.  The letter further warned that Respondent’s failure to correct its violations could result in a civil money penalty or other regulatory action.
• On January 30, 2025, at Respondent’s business establishment, an FDA-commissioned inspector conducted a subsequent inspection.  During this inspection, an inspector observed open packages of Newport cigarettes at the establishment intended for the sale of individual cigarettes.  Additionally, the clerk on duty stated that the establishment sells individual cigarettes.

These facts establish that Respondent is liable under the Act.  The Act prohibits misbranding of a tobacco product.  21 U.S.C. § 331(k).  A tobacco product is misbranded if distributed or offered for sale in any state 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 of the U.S. Department of Health and Human Services issued the regulations at 21 C.F.R. pt. 1140 under section 906(d) of the Act.  21 U.S.C. § 387a-1; see also 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); see also 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.  The regulations also prohibit retailers from breaking or otherwise opening any cigarette package to sell or distribute individual cigarettes.  21 C.F.R. § 1140.14(a)(4).

Taking the above alleged facts as true, Respondent violated the prohibition against selling regulated tobacco products to persons younger than 21 years of age on September 5, 2024.  Act § 906(d)(5).  On that same date, Respondent also violated the requirement that retailers verify, by means of photo identification containing a purchaser’s date of birth, that no regulated tobacco product purchaser was younger than 21 years of age.  Id.; 21

Page 6

C.F.R. § 1140.14(b)(2)(i).  Additionally, on January 30, 2025, Respondent violated the prohibition against breaking or otherwise opening any cigarette package to sell or distribute individual cigarettes.  21 C.F.R. § 1140.14(a)(4).  Therefore, Respondent’s actions constitute violations of law that merit a civil money penalty.

CTP has requested a civil money penalty of $356, which is a permissible penalty under 21 U.S.C. § 333(f)(9) and 21 C.F.R. § 17.2.  Therefore, I find that a civil money penalty of $356 is warranted and so order one imposed.