J & L Liquor, LLC d/b/a Log Cabin Liquor, DAB TB10813 (2026)

INITIAL DECISION

The Center for Tobacco Products (CTP) seeks to impose a $2,757 civil money penalty (CMP) against Respondent, J & L Liquor, LLC d/b/a Log Cabin Liquor.  CTP alleges that Log Cabin Liquor impermissibly sold regulated tobacco products to underage purchasers and failed to verify, by means of photo identification containing a date of birth, that some purchasers were 21 years of age or older, thereby violating the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq., and its implementing regulations, 21 C.F.R. Part 1140, at least four times within a 24-month period.1

For the reasons discussed below, I find that Respondent violated the Act, as alleged in the Complaint, and conclude that a CMP of $2,757 is appropriate.

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I. Background

CTP began this matter by serving a Complaint on Respondent Log Cabin Liquor at 701 West 8th Avenue, Yuma, Colorado 80759 by United Parcel Service, and by filing a copy of the Complaint with the FDA’s Division of Dockets Management.  CRD Dkt. Entry Nos. 1, 1b.

On December 2, 2024, Respondent timely filed its Answer denying the allegations in the Complaint, offered a defense, and stated that the civil money penalty sought by CTP was too high.  CRD Dkt. Entry No. 4.

On December 4, 2024, the Administrative Law Judge (ALJ) previously assigned to this case issued a Pre-Hearing Order acknowledging receipt of Respondent’s Answer and establishing procedural deadlines for this case.  CRD Dkt. Entry No. 6 at 2, 3.

On February 12, 2025, CTP filed a Motion to Compel Discovery and two exhibits.  CRD Dkt. Entry Nos. 8, 8a-8b.  On February 20, 2025, the previously assigned ALJ issued an Order directing Respondent to show cause by March 6, 2025, why the Motion to Compel should not be granted.  CRD Dkt. Entry No. 9 at 2.  The Order also stayed all remaining deadlines pending resolution of the discovery issue.  Id.

On February 24, 2025, Respondent filed a document captioned “Request for Documents” which requested “[p]roof that said tobacco product was purchased from Log Cabin Liquor in the form of paper receipt from the store or a credit card transaction report that would prove that the product was indeed purchased at the location on the date in question.”  CRD Dkt. Entry No. 10.

On March 24, 2025, the prior ALJ issued an Order which granted CTP’s Motion to Compel; denied Respondent’s request for production of documents (RFP); and gave Respondent until April 8, 2025, to comply with CTP’s RFP.  CRD Dkt. Entry No. 11 at 2.

Subsequently, on March 25, 2025, Respondent filed a “motion for full dismissal” (Motion to Dismiss) asserting “there is no proof of purchase or any evidence proving that the said tobacco product was purchased at this location on the date in question. See attached narrative report.”  CRD Dkt. Entry No. 12 at 1.  In support of its Motion to Dismiss, Respondent included the Narrative Report for the inspection conducted on August 19, 2024.  See id. at 2.  By Order of the prior ALJ, dated April 2, 2025, CTP was given until April 17, 2025, to respond to Respondent’s Motion to Dismiss.  CRD Dkt. Entry No. 13.  The April 2, 2025, Order also stayed Respondent’s deadline to comply with CTP’s RFP pending resolution of the Motion to Dismiss.  Id. at 2.

On April 4, 2025, CTP filed a Motion to Extend Deadlines “requesting a 30-calendar day extension of all pending deadlines in this matter.”  CRD Dkt. Entry No. 14.  On April 9, 

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2025, the prior ALJ granted CTP’s Motion to Extend Deadlines and extended CTP’s deadline to respond to the Motion to Dismiss to May 19, 2025.  CRD Dkt. Entry No. 15.

On May 19, 2025, CTP submitted Complainant’s Opposition to Respondent’s Motion to Dismiss (Opposition).  CRD Dkt. Entry No. 16.  In its Opposition, CTP argued:

• The presiding officer should deny Respondent’s Motion because ruling in Respondent’s favor would require the presiding officer to accept as true the factual allegations in Respondent’s Motion, instead of accepting the truth of CTP’s allegations in the Complaint, as is proper when ruling on a motion to dismiss.  If the presiding officer decides to treat the pro se Motion as a Motion for Summary Decision, the Motion should be denied because it raises genuine issues of material fact.

Id. at 1.  On July 17, 2025, the prior ALJ issued an Order Denying Respondent’s Motion to Dismiss and Re-Establishing Pre-Hearing Deadlines, concluding “I do not have regulatory authority to dismiss a complaint on the basis alleged by Respondent, nor has Respondent cited to any such authority.”  CRD Dkt. Entry No. 18 at 4.  The Order also directed Respondent to respond to CTP’s RFP in its entirety by August 18, 2025, and re-established the deadline for CTP’s pre-hearing exchange to Respondent to September 17, 2025, and Respondent’s pre-hearing exchange to CTP to October 8, 2025.  Id. at 5.

On September 17, 2025, 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 thirteen proposed exhibits.  CRD Dkt. Entry Nos. 20, 20a-n.  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) Curt Calvin Strobel, FDA-commissioned inspector for the State of Colorado, CTP Ex. 4.  CRD Dkt. Entry Nos. 20d-e.

Respondent’s representative, Lance Hettinger, submitted an informal brief, but did not submit any proposed evidence or written direct testimony of any proposed witnesses.  See CRD Dkt. Entry No. 21.

On November 18, 2025, I conducted the pre-hearing conference (PHC) in this case.  During the PHC, I provided a summary of the allegations alleged in the Complaint, explained the issues before me and the parties’ respective burdens of proof, and we discussed CTP’s pre-hearing exchange submissions.  CRD Dkt. Entry No. 27.  I asked if Respondent objected to the admission of CTP’s 13 proposed exhibits into the record, and Mr. Hettinger stated that he did not object.  Id. at 2.  I therefore admitted CTP’s proposed exhibits into the record as CTP Exs. 1-13.  Id.  I also noted Respondent’s submission of a timely pre-hearing brief but that Respondent did not submit any proposed exhibits or written direct testimony by the October 8, 2025, pre-hearing exchange deadline.  See 

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CRD Dkt. Entry Nos. 18 at 5, 21.  Mr. Hettinger stated that he did not intend to cross-examine CTP’s proposed witnesses.  CRD Dkt. Entry No. 27 at 2.  Accordingly, during the PHC, I explained to the parties that I will decide this case based on the written administrative record.  Id.; 21 C.F.R. § 17.45(a).

In my November 21, 2025, Order Following Pre-Hearing Conference, I set January 9, 2026, as the deadline for the parties to file simultaneous final briefs, and January 26, 2026, for the parties to file simultaneous responses to the opposing party’s final brief.  CRD Dkt. Entry No. 27 at 2.

On January 9, 2026, CTP filed its Final Brief with one exhibit.  CRD Dkt. Entry Nos. 28, 28a.  Respondent did not file a final brief or notice waiving submission of a final brief.

The administrative record is now complete and closed.  I will now decide this case based on the evidence in the full administrative record.  21 C.F.R. §§ 17.41(b), 45(a).

II. Issues

• Whether Respondent sold regulated tobacco products to an underage purchaser on August 19, 2024, and failed to verify, by photo identification, that the regulated tobacco product purchaser was 21 years of age or older, on that same date, in violation of section 906(d)(5) of the Act and 21 C.F.R. § 1140.14(a)(2)(i);
• Whether any affirmative defenses are meritorious; and
• If Respondent is liable for penalties or assessments, whether the $2,757 CMP is appropriate, considering any mitigating or aggravating factors that I find in this case. 21 C.F.R. § 17.45.

III. Findings of Fact and Conclusions of Law

In order to prevail, CTP must prove Respondent’s liability by a preponderance of the evidence.  The U.S. Supreme Court 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 not before finding in favor of the party that had the burden to persuade the judge of the fact’s existence.  In re Winship, 397 U.S. 358, 371-72 (1970); Concrete Pipe and Prods. of Cal., Inc. v. Constr. Laborers, 508 U.S. 602, 622 (1993).  CTP has the burden to prove Respondent’s liability and appropriateness of the penalty by a preponderance of the evidence.  21 C.F.R. § 17.33(b).  Respondent has the burden to prove any affirmative defenses and any mitigating factors likewise by a preponderance of the evidence.  21 C.F.R. § 17.33(c).

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CTP seeks to impose a CMP against Respondent pursuant to the authority conferred by the Act and its implementing regulations at Part 21 of the Code of Federal Regulations.  CRD Dkt. Entry No. 1 ¶¶ 2-10.  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).  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).  FDA and its agency, CTP, may seek civil money penalties from any person who violates the Act’s requirements as they relate to the sale of tobacco products.  21 U.S.C. § 333(f)(9).

The sale of regulated tobacco products to an individual who is under the age of 21 and failure to verify, by means of photo identification containing the bearer’s date of birth, that a regulated tobacco product purchaser is 21 years of age or older are violations of the Act and its implementing regulations.  Act § 906(d)(5); 21 U.S.C. § 387f(d)(5).

• A. Violations
  • 1. Prior Violations

This is the second CMP action CTP has brought against Respondent.  CRD Dkt. Entry No. 20b (CTP Ex. 1); CRD Dkt. Entry No. 1; see CRD Docket Number T-24-3045 (FDA Docket Number FDA-2024-H-2479).  The prior Complaint alleged: (1) selling regulated tobacco products to purchasers younger than 21 years of age on April 19, 2023, and March 6, 2024, in violation of section 906(d)(5) of the Act; and (2) failing to verify photographic identification of the regulated tobacco product purchasers on April 19, 2023, in violation of 21 C.F.R. § 1140.14(a)(2)(i).  CRD Dkt. Entry No. 20b; CRD Dkt. Entry No. 1 ¶ 15.  The previous action concluded when Respondent admitted the allegations contained in the Complaint issued by CTP and paid the agreed upon CMP in settlement of that claim.  CRD Dkt. Entry No. 1 ¶ 16; CRD Dkt. Entry No. 20c (CTP Ex. 2).

Respondent did not contest these prior violations, and they are administratively final.  21 C.F.R. § 17.15(b) (stating that a “settlement agreement shall be filed in the docket and shall constitute complete or partial resolution of the administrative case as so designated by the settlement agreement.”).  Accordingly, I conclude that Respondent committed at least two prior violations2 of the Act and implementing regulations.

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• 2. Current Violations

In addition to the prior violations, CTP alleges that Respondent committed two additional violations of selling Marlboro cigarettes to a purchaser younger than 21 years of age in violation of section 906(d)(5) of the Act and failing to verify photographic identification of the tobacco product purchaser in violation of 21 C.F.R. § 1140.14(a)(2)(i) on August 19, 2024.  CRD Dkt. Entry No. 1 ¶ 13.  To support its claims, CTP submitted the declarations of James Bowling, Deputy Division Director for the Division of Enforcement and Manufacturing in the Office of Compliance and Enforcement, CTP, FDA, and FDA-commissioned Inspector Curt Calvin Strobel.  CRD Dkt. Entry Nos. 20d-e (CTP Exs. 3, 4).  CTP also submitted corroborating evidence, which includes reports, photographs, and other documentation.  CRD Dkt. Entry Nos. 20f-n (CTP Exs. 5-13).  In its Answer, Respondent asserts that:

• The tactics you use to entrap businesses it[sic] at a minimum extremely unethical. Sending an underage individual into my establishment in an attempt to coerce and entrap my employees is abhorrent. It also violates posted rules of my business banning anyone under the age of 21 from entering my establishment without a parent or legal guardian present. It also infringes on my rights as a business owner to make and enforce such rules.

CRD Dkt. Entry No. 4 at 4.

James Bowling testified that, in his official capacity, he gained personal knowledge regarding how CTP enforces certain provisions of the Act and other laws enforced by the FDA and gained personal knowledge regarding the processes used by the FDA regarding the establishment of registration and product listing requirements.  CRD Dkt. Entry No. 20d ¶ 3.  Mr. Bowling testified that the Marlboro cigarettes purchased on August 19, 2024, at Respondent’s establishment were manufactured by Philip Morris USA.  Id. ¶ 6.  Mr. Bowling further testified that, according to the information provided to the FDA by the manufacturer and stored in TRLM NG, the Marlboro cigarettes purchased during the August 19, 2024 inspection were manufactured, prepared, compounded, or processed for commercial distribution at Philip Morris USA’s facility in the Commonwealth of Virginia, and that Philip Morris USA does not have a facility in the State of Colorado.  Id. ¶¶ 7-8.

Respondent does not dispute this testimony.  Accordingly, I find that Respondent’s establishment received the Marlboro cigarettes in interstate commerce, and held them for sale on August 19, 2024, after shipment in interstate commerce.

Inspector Curt Calvin Strobel is an FDA-commissioned officer whose duties primarily include determining whether tobacco retailers are in compliance with the age and photo identification requirements relating to the sale of regulated tobacco products. 

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CRD Dkt. Entry No. 20e ¶¶ 2, 3.  Inspector Strobel’s inspections entail accompanying underage purchasers who attempt to purchase tobacco products from retail establishments, such as the one operated by Respondent.  Id. ¶¶ 2-6.

Inspector Strobel testified that, before the inspection, he confirmed that Underage Purchaser A (UP A) did not have any tobacco products in their possession and possessed an accurate photographic identification of their date of birth.  Id. ¶ 7; see also CRD Dkt. Entry No. 20h.  Inspector Strobel testified that, during the inspection, he parked his car near Respondent’s establishment and UP A exited the vehicle.  Id. ¶ 8.  Inspector Strobel testified that he remained in his vehicle because he felt that his presence would compromise the undercover nature of the inspection.  Id.  Inspector Strobel testified that he had an unobstructed direct line of sight from his vehicle to the establishment’s front door.  Id.  Inspector Strobel testified that, minutes later, UP A returned to the vehicle after the purchase and immediately handed him the tobacco product.  Id. ¶ 9.   Inspector Strobel testified that he observed that the tobacco product was a package of Marlboro cigarettes.  Id.  He further testified that UP A reported to him that UP A was able to purchase the Marlboro cigarettes directly from an employee of Respondent’s establishment, and that UP A did not have a receipt for the purchase.3 Id.

Inspector Strobel testified that after UP A handed him the tobacco product, he labeled the Marlboro cigarettes as evidence and photographed all the panels of the package.  Id. ¶ 9. ¶ Inspector Strobel then processed the evidence in accordance with standard procedures at the time of the inspection, which entailed completing the Tobacco Inspection Management System (TIMS) Form and creating a Narrative Report.  Id. ¶¶ 9-10.  UP A’s redacted identification and Inspector Strobel’s contemporaneous photographs and reports were admitted into evidence and corroborate Inspector Strobel ’s testimony.  CRD Dkt. Entry Nos. 20f-j (CTP Exs. 5-9); see also CRD Dkt. Entry No. 20k (CTP Ex. 10, Notice of Compliance Check Inspection).

Respondent waived its right to cross-examine or otherwise impeach Inspector Strobel’s testimony concerning the inspection on August 19, 2024.  I find Inspector Strobel’s testimony credible.  It is also supported by corroborating evidence documenting that the August 19, 2024 allegations for selling regulated tobacco products to an underage purchaser and failing to verify the age of the purchaser before the sale.

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• 3. Respondent’s Defenses

Respondent offered no testimony to refute the testimony of Inspector Strobel that it sold cigarettes to an underage purchaser and failed to verify the underage purchaser’s identification on August 19, 2024.  However, Respondent did raise arguments in response to the Complaint.  In its pre-hearing brief, Respondent argued that CTP failed to provide any “physical proof” of the transaction.  CRD Dkt. Entry No. 21.  However, Inspector Strobel’s observations of the transaction and the physical evidence (photographs of the tobacco product) that was obtained on August 19, 2024, are credible proof that the tobacco product sale occurred.

In its Answer, Respondent also argued, in part:

• [t]he tactics [used] to entrap businesses i[s] at a minimum extremely unethical.  Sending an underage individual into my establishment in an attempt to coerce and entrap my employees is abhorrent . . . .

CRD Dkt. Entry No. 4 at 4.  Respondent further contends:

• . . . The CTP admittedly sent an underage person into my store to buy tobacco, which is illegal.  The CTP broke the law in an effort to get me to break the law.  Furthermore they would have violated visible posted rules of my establishment banning anyone under 21 from entering.  That is textbook entrapment . . . .

CRD Dkt. Entry No. 21.

To the extent Respondent is attempting to raise an entrapment defense, the Departmental Appeals Board has found this argument to be unavailing, stating:

• [E]ntrapment would not appear to be available in a federal enforcement action for sale of tobacco products to [underage purchasers].

TOH, Inc. d/b/a Ridgeville Service Center, DAB No. 2668 at 14-15 (2015).

The unrebutted evidence in the record establishes, by a preponderance of the evidence, that the violations occurred as alleged in the Complaint.  I find Inspector Strobel’s testimony very credible as to his observations during the August 19, 2024 inspection.  The testimony of Inspector Strobel, supported by corroborating evidence, is sufficient to establish that on August 19, 2024, Respondent sold a regulated tobacco product to UP A, in violation of section 906(d)(5) of the Act, and failed to verify the photographic identification of UP A, in violation of section 906(d)(5) of the Act and 21 C.F.R.

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§ 1140.14(a)(2)(i).  Additionally, Respondent has offered no evidence to support its assertions and has failed to prove any affirmative defenses to liability.

Further, Respondent previously admitted to committing violations of section 906(d)(5) of the Act and 21 C.F.R. § 1140.14(a)(2)(i) on April 19, 2023, and March 6, 2024, for at least two prior violations.  CRD Dkt. Entry Nos. 20b-c.  Accordingly, Respondent is liable for four violations in total and CTP is entitled to a CMP.  21 U.S.C. § 333(f)(9).

• B. Civil Money Penalty

I have found that Respondent committed four violations of the Act and its implementing regulations within a 24-month period.  The FDA, and CTP, may seek civil money penalties from any person who violates the Act’s requirements as they related to the sale of regulated tobacco products.  21 U.S.C. § 333(f)(9).  In its Complaint, CTP sought to impose the maximum penalty of $2,757 against Respondent.  See CRD Dkt. Entry No. 1 ¶ 1.  When determining an appropriate penalty, the presiding officer must evaluate any circumstances that mitigate or aggravate the violation.  21 C.F.R. § 17.34(a).  Under the applicable statute, I must “take into account the nature, circumstances, extent, and gravity of the violation or 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); see also 21 C.F.R. § 17.34.  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 (Guidance).

Mitigation is an affirmative defense for which Respondent bears the burden of proof.  Respondent must prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.  21 C.F.R. § 17.33(c).

For the reasons explained below, I find that a CMP of $2,757 is appropriate.

• 1. Nature, Circumstances, Extent and Gravity of the Violations

Respondent committed four violations of selling regulated tobacco products to underage purchasers and failing to verify, by means of photo identification containing a date of birth, that the purchasers were of sufficient age.  The most recent violations, on August 19, 2024, are particularly serious because Respondent, for the second time in a 24-month period, sold regulated tobacco products to an underage purchaser and failed to verify the age of the purchaser, and committed these violations despite warnings from FDA that additional violations would result in more serious consequences.  See CRD Dkt. Entry Nos. 20c, 20m at 1.

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Respondent’s repeated inability to comply with federal tobacco regulations is serious in nature and the CMP amount should be set accordingly.

• 2. Respondent’s Ability to Pay and Effect on Ability to Do Business

Respondent argues that the $2,757 CMP sought by CTP is too high and “is a blatant abuse of authority . . . [and] feels more like a shakedown and only serves to further erode the public[’]s trust of the effectiveness of this agency.”  CRD Dkt. Entry No. 4 at 4.  However, Respondent did not submit any evidence to show Respondent’s inability to pay the $2,757 CMP or that a CMP of this amount will effect Respondent’s ability to do business.  Nor is there any evidence in the record to show that the $2,757 CMP will effect Respondent’s ability to continue to do business or that Respondent is unable to pay a CMP of this amount.

• 3. History of Prior Violations

As noted above, Respondent previously admitted to at least two violations of the prohibitions against selling regulated tobacco products to underage purchasers and failing to verify, by means of photo identification containing a date of birth, that the purchasers were under 21 years of age.  CRD Dkt. Entry Nos. 20b-c.  Despite a previous CMP action, Respondent committed two additional violations, resulting in four violations within a 24-month period.  Act § 906(d)(5); 21 C.F.R. § 1140.14(a)(2)(i).  Respondent’s history of prior violations warrants a progressively larger CMP.  I agree that Respondent’s “repeated violations show an unwillingness or inability to sell tobacco products in accordance with federal tobacco laws.”  CRD Dkt. Entry No. 20 at 13.  Respondent’s continued inability to comply with FDA tobacco regulations supports the imposition of a larger CMP.

• 4. Degree of Culpability

As previously discussed, Respondent failed to prove any affirmative defenses.  Respondent previously admitted to violations of the Act and its implementing regulations in the settlement of a prior action.  See CRD Dkt. Entry No. 20c.  In addition, based on the evidence presented, Respondent committed the two most recent violations in the current Complaint.  Therefore, I find Respondent fully culpable for four violations of the Act and its implementing regulations, as alleged.

• 5. Employer Training Program

Respondent has not presented any evidence demonstrating the implementation of an approved training program that complies with standards developed by the Food and Drug Administration.  21 U.S.C. § 333 (quoting Tobacco Control Act § 103(q)(2)(A)-(B)); see also 45 C.F.R. § 102.3.

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• 6. State Penalties

Respondent has not alleged or presented evidence that it has paid any penalty to the State of Colorado for the same violations.  21 C.F.R. § 17.34(b).

• 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).

After reviewing the administrative record, I do not find any evidence to support any additional mitigating circumstances.  Respondent failed to prove that the requested CMP is too high and should be reduced.  Respondent did not present any persuasive evidence to support that it is not fully culpable or cannot afford the proposed CMP.

Based on the foregoing, I find a CMP in the amount of $2,757 to be appropriate under 21 U.S.C. §§ 333(f)(5)(B), (f)(5)(C), and (f)(9).

IV. Conclusion

Pursuant to 21 C.F.R. § 17.45, I impose a CMP of $2,757 against Respondent, J & L Liquor, LLC d/b/a Log Cabin Liquor, for four violations 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.