Broad Gas LLC d/b/a US Gas / Food Mart, DAB TB10664 (2026)

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

The Food and Drug Administration (FDA), Center for Tobacco Products’ (CTP or Complainant) Status Report and Motion to Impose Sanctions (Motion to Impose Sanctions) is pending before me.  CTP’s Motion to Impose Sanctions requests that I strike Broad Gas LLC d/b/a US Gas / Food Mart’s (Respondent) Answer as a sanction for failing to comply with CTP’s discovery request and issue a default judgment against Respondent.  During the course of this administrative proceeding, Respondent failed to comply with multiple judicial orders and procedures governing this proceeding and failed to defend its actions, which interfered with the speedy, orderly, or fair conduct of this proceeding.  21 C.F.R. § 17.35(a).  Therefore, pursuant to 21 C.F.R. § 17.35(c)(3), I grant CTP’s Motion to Impose Sanctions, strike Respondent’s Answer, and issue an Initial Decision and Default Judgment imposing a civil money penalty of $21,348. 

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I. Background and Procedural History

On June 23, 2025, CTP served an Administrative Complaint for Civil Money Penalty (Complaint) and supporting documents on Respondent, at its address located at 642 West Broad Street, Paulsboro, New Jersey 08066, by United Parcel Service (UPS), pursuant to 21 C.F.R. §§ 17.5 and 17.7.  Civil Remedies Division (CRD) Docket (Dkt.) Entry Numbers (Nos.) 1, 1a-1b.  In the Complaint, CTP alleges that Respondent sold a tobacco product on November 18, 2024, in violation of a No-Tobacco-Sale Order (NTSO) issued pursuant to 21 U.S.C. § 333(f)(8) of the Federal Food, Drug, and Cosmetic Act (Act).  See CRD Dkt. Entry No. 1 (Complaint ¶¶ 1, 7-8). 

On July 10, 2025, Respondent, through counsel Mr. Joseph M. Pinto, registered for the Departmental Appeals Board’s Electronic Filing System (DAB E-File), and timely filed a Notice of Appearance and Respondent’s Answer to CTP’s Complaint.  CRD Dkt. Entry Nos. 3, 3a.  Respondent generally denied the allegations in the Complaint and requested dismissal of the Complaint.  CRD Dkt. Entry No. 3a (Answer to Administrative Complaint for Civil Money Penalty). 

On July 25, 2025, I issued an Acknowledgment and Pre-Hearing Order (APHO) that set deadlines for the parties’ filings and exchanges, including a schedule for discovery.  CRD Dkt. Entry No. 4.  Specifically, I directed that a party receiving a discovery request must provide the requested documents within 30 days of the request.  Id. ¶ 4; see 21 C.F.R. § 17.23(a).  Also, I warned that I may impose sanctions if a party failed to comply with any order, including the APHO, failed to defend its case, or engaged in misconduct that interfered with the speedy, orderly, or fair conduct of the hearing.  CRD Dkt. Entry No. 4 ¶ 21. 

On August 25, 2025, counsel for CTP filed a Joint Status Report, stating that “[t]he parties intend to engage in further settlement discussions.  CTP will notify the Departmental Appeals Board if the parties agree to a settlement, and Respondent fulfills the terms of the settlement agreement.”  CRD Dkt. Entry No. 5.

On September 12, 2025, CTP filed a Motion to Compel Discovery with supporting documents, and an Unopposed Motion to Extend Deadlines.  CRD Dkt. Entry Nos. 6, 6a-6c, 7.  In its Motion to Compel Discovery, CTP asserted that Respondent did not respond to its Request for Production of Documents (RFP), as required by the APHO and regulations.  CRD Dkt. Entry No. 6 at 2.  In its Unopposed Motion to Extend Deadlines, CTP asserted that Respondent’s response to its discovery request was necessary before CTP could prepare its pre-hearing exchange and, thus, requested a 30-day extension of the pre-hearing exchange deadlines.  CRD Dkt. Entry No. 7 at 1.

By Order dated October 3, 2025, I informed Respondent of its October 16, 2025, deadline to file a response to CTP’s Motion to Compel Discovery and warned that if Respondent 

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failed to respond, “I may grant CTP’s motion in its entirety.”  CRD Dkt. Entry No. 8 at 2; see also 21 C.F.R. § 17.32(c); APHO ¶ 20.  Additionally, I extended the pre-hearing deadlines by 30 days.  CRD Dkt. Entry No. 8 at 2.  CTP’s pre-hearing exchange deadline was extended until November 20, 2025, and Respondent’s pre-hearing exchange deadline was extended until December 11, 2025.  Id.  Respondent did not respond to CTP’s Motion to Compel Discovery or my October 3, 2025, Order.

On October 31, 2025, I issued an Order Granting Complainant’s Motion to Compel Discovery.  CRD Dkt. Entry No. 9.  In the Order, I directed Respondent to produce documents responsive to CTP’s discovery request by November 14, 2025, and warned Respondent that:

• 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.   

CRD Dkt. Entry No. 9 at 2-3.  I also extended the parties’ pre-hearing exchange deadlines by thirty days.  Id.  Thus, the deadline for CTP to file its pre-hearing exchange was extended to December 22, 2025, and Respondent’s deadline to file its pre-hearing exchange was extended to January 12, 2026.  Id.

On November 25, 2025, CTP filed its Motion to Impose Sanctions and a Motion to Stay Deadlines.  CRD Dkt. Entry Nos. 10, 11.  CTP advised that Respondent failed to produce documents in compliance with the October 31, 2025, Order Granting Complainant’s Motion to Compel Discovery.  CRD Dkt. Entry No. 10 at 2.  CTP argued that sanctions against Respondent are an appropriate remedy because “it is unlikely more time or additional orders . . . will change the status quo.”  Id.  Specifically, CTP asked that I strike Respondent’s Answer as a sanction and issue an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the Complaint and imposing a $21,348 civil money penalty.  Id. at 2-3.  

By Order dated December 17, 2025, I informed Respondent of its January 2, 2026, deadline to file a response to CTP’s Motion to Impose Sanctions and warned Respondent that if it failed to file a response, “I may grant CTP’s motion and impose the requested civil money penalty against Respondent.”  CRD Dkt. Entry No. 13 at 2.  Finding that staying the pre-hearing exchange deadlines pending resolution of CTP’s Motion to Impose Sanctions would not prejudice either party, I also granted CTP’s Motion to Stay Deadlines.  Id.  To date, Respondent has not responded to CTP’s Motion to Impose Sanctions or my December 17, 2025, Order.

On March 10, 2026, counsel for Respondent emailed the attorney advisor assisting me with this case, copying counsel for CTP, expressing interest in “speak[ing] with someone 

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to attempt to settle this matter.”  See CRD Dkt. Entry No. 14 at 1.  On that same date, the attorney advisor responded to Respondent’s counsel, copying counsel for CTP, explaining that Respondent’s counsel would need to contact counsel for CTP regarding any settlement negotiations, and that my ruling on CTP’s Motion to Impose Sanctions would be forthcoming.1 Id.

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). 

“When a party fails to comply with a discovery order. . . [,]” I may draw an inference in favor of the opposing party; may prohibit the non-complying party from introducing or relying on evidence related to the discovery request; and may “[s]trike any part of the pleadings or other submissions of the party failing to comply with [the discovery] request.”  21 C.F.R. § 17.35(c).  Any sanction “shall reasonably relate to the severity and nature of the failure or misconduct.”  21 C.F.R. § 17.35(b).

I conclude that sanctions against Respondent are warranted under 21 C.F.R. § 17.35(a)(1).  Specifically, Respondent failed to comply with:

• the regulations at 21 C.F.R. § 17.23(a) and paragraph 4 of the APHO, when Respondent failed to respond to CTP’s RFP within 30 days; and
• my October 31, 2025, Order Granting Complainant’s Motion to Compel Discovery when it failed to submit (or indicate that it did not have) documents responsive to CTP’s RFP by November 14, 2025. 

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Additionally, Respondent also failed to defend this action.  21 C.F.R. § 17.35(a)(2).  Specifically, Respondent did not file responses to:

• CTP’s Motion to Compel Discovery and my October 3, 2025, Order; and
• CTP’s Motion to Impose Sanctions and my December 17, 2025, Order.  

Respondent’s failure to fulfill its discovery obligations and respond to CTP’s various motions suggests that Respondent has abandoned its defense of this case.   

Further, I find that Respondent’s failure to comply with multiple judicial orders, regulations governing discovery, and other procedures in this case is misconduct that has interfered with the speedy, orderly, or fair conduct of the hearing.  See 21 C.F.R. § 17.35(a)(3).  To provide ample opportunity for Respondent to respond to CTP’s motions and for the parties to prepare their respective pre-hearing exchanges, my October 3, 2025, Order, October 31, 2025, Order, and December 17, 2025, Order, respectively extended or stayed the pre-hearing exchange deadlines set in the APHO. 

In the absence of any explanation from Respondent, I find that Respondent failed to comply with multiple judicial orders and directives governing this proceeding, failed to defend its case, and, as a result, interfered with the speedy, orderly, or fair conduct of this proceeding.  I find no basis to excuse Respondent’s repeated failure to comply with the various orders and regulations in this administrative 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.

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).  Here, Respondent failed to comply with the July 25, 2025, APHO, my October 31, 2025, Order Granting Complainant’s Motion to Compel Discovery, and the discovery regulation governing this proceeding when it failed to respond to CTP’s RFP within 30 days of receipt and again failed to respond by the November 14, 2025, deadline set by my October 31, 2025, Order.  APHO ¶ 4; CRD Dkt. Entry No. 9 at 2; 21 C.F.R. § 17.23(a).  Moreover, Respondent failed to defend this action by failing to respond to CTP’s Motion to Compel Discovery and Motion to Impose Sanctions, despite several Orders reminding Respondent of the opportunity to do so.  Notably, Respondent failed to comply with two Orders, despite my explicit warnings that its failure could result in sanctions.  See CRD Dkt. Entry Nos. 9 at 3; 13 at 2.  I respectively specified in my October 31, 2025, and December 17, 2025, Orders that those sanctions may include “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.”  CRD Dkt. Entry No. 9 at 3; see also CRD Dkt. Entry No. 13 at 2.  Moreover, Respondent’s repeated misconduct interfered with the speedy, orderly, or fair conduct of this proceeding. 

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Upon consideration of the totality of facts and circumstances, I find that Respondent’s actions are sufficiently egregious to warrant striking its Answer and issuing a decision by default, without further proceedings.  21 C.F.R. § 17.35(b), (c)(3).  Although striking an answer is a harsh sanction, the Departmental Appeals Board has repeatedly held in similar circumstances involving a respondent’s repeated failure to comply with discovery and procedural orders that “the ALJ determination to impose sanctions was not an abuse of discretion, and the sanction imposed was reasonably related to the nature and severity of Respondent’s noncompliance.”  Carolina Cigar of Delray, LLC d/b/a Carolina Cigar, DAB No. 3134, at 11 (2024) (citing Joshua Ranjit, Inc. d/b/a 7-Eleven 10326, DAB No. 2758, at 1, 8-11 (2017); KKNJ, Inc. d/b/a Tobacco Hut 12, DAB No. 2678, at 8-11 (2016); and Retail LLC d/b/a Super Buy Rite, DAB No. 2660, at 10-14 (2015)).  Accordingly, I grant CTP’s Motion to Impose Sanctions and strike Respondent’s Answer from the administrative record.  21 C.F.R. §§ 17.35(a)(1)-(3), (b), (c)(3).

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.  Pursuant to 21 C.F.R. § 17.11(a), I must “assume the facts alleged in the [C]omplaint to be true” and, if those facts establish liability under the Act, issue a default judgment imposing the “maximum amount of penalties provided for by law for the violations alleged” or the civil money penalty “amount asked for in the complaint, whichever is smaller.”  Id. 

1. A. Liability

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

• Respondent owns US Gas / Food Mart, an establishment that sells regulated tobacco products in interstate commerce and is located at 642 West Broad Street, Paulsboro, New Jersey 08066.  Complaint ¶¶ 6, 7.
• On July 23, 2024, an Administrative Law Judge (ALJ) issued an Initial Decision, Broad Gas LLC d/b/a US Gas / Food Mart, CRD No. TB8267, against Respondent for five repeated violations of Section 906(d)(5) of the Act, and the tobacco regulations at 21 C.F.R. Part 1140, and imposed an NTSO for 30 consecutive, calendar days.  Complaint ¶ 4; see also CRD No. TB8267.  
• On October 23, 2024, CTP sent Respondent a letter explaining that the NTSO period would begin at midnight (12:00 am) on October 28, 2024, and remain in effect through 11:59 PM on November 26, 2024, and that during that time, Respondent could not sell cigarettes, cigarette tobacco, roll-your-own tobacco, 

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• smokeless tobacco, and covered tobacco products.  UPS records show that CTP delivered the letter to Respondent on October 25, 2024, at 642 West Broad Street, Paulsboro, New Jersey 08066, and it was signed for by an entity UPS identified as “Yeboah.”  Complaint ¶ 5.
• During a subsequent inspection of Respondent’s establishment conducted on November 18, 2024, an FDA-commissioned inspector documented that “at approximately 12:16 PM, Respondent sold a Geek Bar Pulse B-Pop electronic nicotine delivery system (ENDS) product to the inspector.”  Complaint ¶ 7.

Taking the above alleged facts as true, Respondent is liable under the Act.  The Act prohibits the sale of tobacco products in violation of an NTSO, 21 U.S.C. § 331(oo), and provides that a violator is subject to a civil money penalty.  21 U.S.C. § 333(f)(9)(A); 21 C.F.R. § 17.2; see 45 C.F.R. § 102.3.  On July 23, 2024, an ALJ imposed an NTSO on Respondent for five repeated violations of the Act and tobacco regulations, pursuant to 21 U.S.C. § 333(f).  The NTSO prohibited Respondent from selling cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, and covered tobacco products for a consecutive 30-day period.  CTP notified Respondent that the NTSO period began at midnight (12:00 AM) on October 28, 2024, and remained in effect through 11:59 PM on November 26, 2024.  On November 18, 2024, Respondent sold a covered tobacco product, specifically a Geek Bar Pulse B-Pop ENDS device in violation of the NTSO.  Therefore, Respondent’s actions constitute a violation of law that merits a civil money penalty.  21 U.S.C. §§ 331(oo), 333(f)(9)(A). 

1. B. Penalties

A retailer who violates a requirement of the Act relating to tobacco products is liable for a civil money penalty of up to $21,903 for each violation and up to an aggregate of $1,460,195 for all violations adjudicated in a single proceeding.2  21 U.S.C. § 333(f)(9)(A); 91 Fed. Reg. 3,665, 3,667 (Jan. 28, 2026) (establishing the 2025 maximum adjusted penalty amounts for civil money penalties administered by the Department of Health and Human Services).  When issuing a default judgment and initial decision, I must impose the smaller amount of either the maximum civil money penalty provided for by law for the violations alleged or the amount asked for in the Complaint.  21 C.F.R. § 17.11(a)(1)-(2).  For penalties assessed on or after January 28, 2026, the maximum civil money penalty for each violation of a requirement of the Act which relates to tobacco products is $21,903.  21 U.S.C. § 333(f)(9)(A); 91 Fed. Reg. 3,665, 3,667 (Jan. 28, 2026).  Having filed the Complaint on June 24, 2025, before the 2025 inflation adjustments 

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became effective, CTP seeks the maximum civil money penalty for 2024 – i.e., $21,348.  89 Fed. Reg. 64,815, 64,818 (Aug. 8, 2024); see also 21 C.F.R. § 17.2, 45 C.F.R. § 102.3.  The penalty requested in the Complaint is smaller than the maximum penalty provided by law.  Accordingly, awarding the amount of $21,348 as requested in the Complaint is appropriate.  Therefore, I find that a civil money penalty of $21,348 is warranted and so order one imposed.

IV. Conclusion

Pursuant to 21 C.F.R. § 17.35(a)(1)-(3), (b) and (c)(3), I grant Complainant’s Motion to Impose Sanctions, strike Respondent’s Answer, and enter a default judgment and initial decision imposing a civil money penalty of $21,348 against Respondent for selling a tobacco product on November 18, 2024, in violation of an NTSO issued pursuant to 21 U.S.C. § 333(f)(8) of the Act.  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.