Sparkies, LLC d/b/a Sparkies Smoke Shop, DAB TB10853 (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, Sparkies, LLC d/b/a Sparkies Smoke Shop, alleging facts and legal authority sufficient to justify imposing a civil money penalty of $356.  CTP began this case by serving a Complaint on Respondent and filing a copy of the Complaint with the Food and Drug Administration’s (FDA) Division of Dockets Management.  The Complaint alleges that Respondent’s staff sold regulated tobacco products to underage purchasers, 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.  CTP seeks a civil

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money penalty of $356 against the Respondent for at least two violations of the tobacco regulations within a 12-month period.1

Respondent filed a timely Answer to CTP’s Complaint.  However, during the course of this administrative proceeding, Respondent failed to comply with 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).

Currently, CTP’s 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 Respondent’s Answer as a sanction for failing to respond to CTP’s discovery requests and issue a default judgment against Respondent.  After carefully considering the entire record, I grant CTP’s Motion to Impose Sanctions, strike Respondent’s Answer, and issue this default decision, pursuant to the provisions of 21 C.F.R.
§§ 17.35(a), (c)(3).

I.     Procedural History

On July 7, 2025, CTP served the Complaint on Respondent, located at 1836 North Division Street, Morris, Illinois 60450, 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 (UPS Delivery Notification).  On August 4, 2025, Respondent registered for the Departmental Appeals Board (DAB) Electronic Filing System and electronically filed an incomplete Answer to the complaint.  CRD Dkt. Entry Nos. 3, 3a.  However, CRD subsequently received Respondent’s complete Answer on August 5, 2025, which was previously sent by United Parcel Service.  CRD Dkt. Entry No. 4.

In its Answer, Respondent admitted the allegations in the Complaint, requested a waiver to file via the Departmental Appeals Board Electronic Filing System (DAB E-File), and offered defenses, stating that it will take steps to ensure the violation is not repeated.  See CRD Dkt. Entry No. 4 at 1-2.

Based on representations made by Respondent in its Answer, I issued an Acknowledgment and Status Report Order, on August 8, 2025, giving the parties until October 7, 2025, to file a joint status report regarding the status of this case.  Dkt. Entry No. 5.  On October 7, 2025, the Center for Tobacco Products (CTP) filed a Status Report stating that “[t]he parties have been unable to reach a settlement in this case.  CTP remains willing to engage in settlement discussions but, absent an executed settlement agreement, intends to proceed to a hearing.”  Dkt. Entry No. 7 at 1.

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Consequently, on October 16, 2025, I issued a Pre-Hearing Order.  CRD Dkt. Entry No. 8 (PHO).  The PHO set deadlines for the parties’ filings and exchanges, including a schedule for discovery.  The PHO also stated that a party receiving a discovery request must provide the requested documents within 30 days of the request.  Id. ¶ 4; see also 21 C.F.R. § 17.23(a).  Specifically, the PHO warned:

I may impose sanctions including, but not limited to, dismissal of the [C]omplaint 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 the hearing.  21 C.F.R. § 17.35.

Id. ¶ 21. 

On November 17, 2025, CTP filed a second Status Report, again stating the parties have been unable to reach a settlement.  CRD Dkt. Entry No. 9.

On December 18, 2025, CTP filed a Motion to Compel Discovery (MTC) with two exhibits consisting of its Request for Production of Documents and the UPS Delivery Notification.  CRD Dkt. Entry Nos. 10, 10a-10b.  In its MTC, CTP stated that Respondent had not responded to its discovery request, as required by the PHO and the regulations.  CRD Dkt. Entry No. 10.  On that same date, CTP also filed a Motion to Extend Deadlines requesting a 30-day extension of “any deadlines, including the January 5, 2026 due date for CTP’s pre-hearing exchange, be extended thirty (30) days . . . .”  CRD Dkt. Entry No. 11 at 2.

On December 19, 2025, I issued an Order advising Respondent that it had until January 5, 2026, to file a response to CTP’s Motion to Compel Discovery.  CRD Dkt. Entry No. 12.  I also warned that if Respondent failed to respond, “I may grant CTP’s motion in its entirety.”  Id. at 2; see also PHO ¶¶ 20-21.  In my Order, I also extended the pre‑hearing exchange deadlines.  CRD Dkt. Entry No. 12 at 2.  Respondent failed to respond to either CTP’s Motion to Compel Discovery or my December 19, 2025 Order, or otherwise comply with CTP’s Request for Production of Documents.

On January 15, 2026, I issued an Order granting CTP’s Motion to Compel Discovery and ordered Respondent to produce responsive documents to CTP’s Request for Production of Documents by January 23, 2026.  CRD Dkt. Entry No. 13.  Again, I warned:

. . . [F]ailure to comply [. . . .] 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.

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Id. at 2 (emphasis in original).

On January 28, 2026, CTP filed a Status Report and Motion to Impose Sanctions.  CRD Dkt. Entry No. 14.  CTP advised that Respondent had not complied with the PHO or my January 15, 2026 Order Granting CTP’s Motion to Compel Discovery.  Id. at 1.  CTP argued that sanctions against Respondent for its repeated non-compliance are an appropriate remedy.  Id. at 2.  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 $356 civil money penalty.  Id. at 2-3.  On January 28, 2026, CTP also filed a Motion to Stay Deadlines.  CRD Dkt. Entry No. 15.

On February 5, 2026, I issued an Order giving Respondent until February 17, 2026, to file a response to CTP’s Motion to Impose Sanctions.  CRD Dkt. Entry No. 16.  My February 5, 2026 Order also stayed the parties’ pre-hearing exchange deadlines and warned Respondent that if it failed to file a response, “I may grant CTP’s motion in its entirety.”  Id.  To date, Respondent has not filed any response.

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).

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

• Respondent failed to comply with the regulation at 21 C.F.R. § 17.23(a) and paragraph 4 of my October 16, 2025 PHO by failing to respond to CTP’s RFP within 30 days; and
• Respondent failed to comply with my January 15, 2026 Order Granting CTP’s Motion to Compel Discovery by failing to submit documents responsive to CTP’s RFP by January 23, 2026.

Respondent also failed to defend its action.  21 C.F.R. § 17.35(a)(2).  Specifically:

• Respondent did not file a response to CTP’s MTC, as permitted by the regulations, or file a response to my December 19, 2025 Order, giving Respondent until January 5, 2026 to file a response; and
• Respondent did not file a response to CTP’s Motion to Impose Sanctions (MTIS), as permitted by the regulations, or file a response to my February 5, 2026 Order, giving Respondent until February 17, 2026 to respond to CTP’s MTIS.

I find that Respondent failed to comply with multiple orders and procedures governing this proceeding, failed to defend its case, and, as a result, interfered with the speedy, orderly, and fair conduct of this proceeding.  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 regulatory requirements and two judicial orders, despite my explicit warnings that its failure to do so could result in sanctions.  See CRD Dkt. Entry Nos. 12, 16; see also PHO ¶ 21.  Respondent’s repeated misconduct interfered with the speedy, orderly, or fair conduct of this proceeding.  Further, Respondent has not participated in this action in any meaningful fashion since filing its Answer.  Accordingly, 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); 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.”); Carolina Cigar of Delray, LLC d/b/a Carolina Cigar, DAB No. 3134, at 11 (2024).

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 the regulations, 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.  Accordingly, I must determine whether the allegations in the Complaint establish violations of the Act.

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Specifically, CTP alleges the following facts in its Complaint:

• Respondent owns Sparkies Smoke Shop, an establishment that sells tobacco products and is located at 1836 North Division Street, Morris, Illinois 60450.  Complaint ¶¶ 11-12.
• An FDA-commissioned inspector conducted an inspection of Respondent’s establishment on June 25, 2024, at approximately 1:50 PM, during which “a person younger than 21 years of age was able to purchase an Elfbar Sunset electronic nicotine delivery system (ENDS) product . . . .”  Complaint ¶ 14.
• On July 16, 2024, CTP issued a Warning Letter to Respondent regarding the June 25, 2024 inspection.  The letter explained that the inspector documented a violation of federal law, and that the named violation was not necessarily intended to be an exhaustive list of all violations at the establishment.  The Warning Letter also stated that if Respondent failed to correct the violation, regulatory action by the FDA or a civil money penalty action could occur and that it is Respondent’s responsibility to comply with the law.  Complaint ¶¶ 14-15.
• An FDA-commissioned inspector conducted a subsequent inspection of Respondent’s establishment on January 24, 2025, at approximately 11:26 AM, during which “a person younger than 21 years of age was able to purchase a Geek Bar Pulse Berry Bliss electronic nicotine delivery system (ENDS) product . . . .”  Complaint ¶ 13.

These facts establish that Respondent Sparkies Smoke Shop 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 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 of the U.S. Department of Health and Human Services issued the regulations at 21 C.F.R. Part 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); 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.

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 June 25, 2024, and January 24, 2025.  Act § 906(d)(5).  Therefore, Respondent’s actions constitute violations of law that merit a civil money penalty.

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CTP has requested a civil money penalty of $356, which is a permissible penalty for two violations of the regulations found at 21 C.F.R. Part 1140 within a 12-month period.  21 C.F.R. § 17.2.  Therefore, I find that a civil money penalty of $356 is warranted and so order one imposed.