K B A Fuel Services, Inc. d/b/a Fill Up, DAB TB10987 (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, K B A Fuel Services, Inc. d/b/a Fill Up, alleging facts and legal authority sufficient to justify imposing a civil money penalty of $7,115.  The Complaint alleges that Respondent impermissibly sold regulated tobacco products to underaged purchasers younger than 21 years of age, and failed to verify that the purchasers were of sufficient age, 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. pt. 1140.  CTP seeks a civil money penalty of $7,115.

During these administrative proceedings, Respondent failed to comply with multiple judicial orders.  Respondent also 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 August 4, 2025, CTP served the Complaint on Respondent, located at 4404 Forestville Road, District Heights, Maryland 20747, 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 September 2, 2025, Respondent requested an extension of time to file an Answer.  CRD Dkt. Entry No. 3.  On September 4, 2025, I issued an Order granting Respondent’s Request for Extension.  CRD Dkt. Entry No. 4.  Respondent had until October 3, 2025, to file an Answer.  Id.

On October 4, 2025, Respondent filed an Answer.  CRD Dkt. Entry No. 5.  In the Answer, Respondent admitted to its “previously resolved violation of Feb 27, 2024 by payment on August 5, 2024.”  Id. at 3.  In addition, Respondent denied receiving notice of the alleged violations occurring on May 16, 2022.  Id.  Respondent also denied liability for the alleged violations occurring on February 24, 2025.  Id.

As a defense, Respondent argued that CTP did not identify “the specific clerk responsible for the alleged February 24, 2025 transaction” and that both employees working that day “followed company policy by requesting identification from customers purchasing tobacco products.”  Id.  Respondent further asserted that “failure to identify the employee deprives Respondent of the ability to conduct meaningful investigation . . . .”  Id.  Respondent also asked for the CMP to be vacated in its entirety or substantially reduced.  Id. at 6.

On October 14, 2025, I issued an Acknowledgment and Pre-Hearing Order (APHO) which established the procedures for presenting evidence and arguments including a deadline of November 20, 2025, for the parties to serve requests for production of documents.  CRD Dkt. Entry No. 6.  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 November 13, 2025, CTP filed a Joint Status Report stating the parties were unable to reach a settlement, and that parties intended to proceed to a hearing.  CRD Dkt. Entry No. 8 at 1.  On November 23, 2025, Respondent filed a Motion for Continuance.  CRD Dkt. Entry No. 9.  In the Motion, Respondent asserted its “authorized representative will be out of the country from November 23, 2025, through December 20, 2025, due to a family emergency and will therefore be unavailable to appear for any hearings or conferences scheduled during this period.”  Id. at 1.  On December 1, 2025, I issued an Order granting Respondent’s motion.  CRD Dkt. Entry No. 10.

On January 20, 2026, CTP filed a Motion to Compel Discovery and two attachments.  CRD

Page 3

Dkt. Entry Nos. 11, 11a-11b.  CTP stated that it served its Request for Production of Documents (RFP) on Respondent on November 14, 2025, but CTP had not received a response.  CRD Dkt. Entry No. 11 at 1-2.  On January 20, 2026, CTP also filed a Motion to Extend Deadlines.  CRD Dkt. Entry No. 12.  On January 26, 2026, I issued an Order allowing Respondent an opportunity to file a response to CTP’s Motion to Compel Discovery by February 11, 2026 and I extended other pending deadlines.  CRD Dkt. Entry No. 13.  I warned Respondent “that if it fails to respond, I may grant CTP’s motion in its entirety.”  Id

Respondent did not respond to my Order, and on February 17, 2026, I issued an Order granting CTP’s Motion to Compel Discovery and gave Respondent until March 4, 2026 to comply with CTP’s RFP.  CRD Dkt. Entry No. 14 at 1.  Respondent was again warned:

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 March 10, 2026, CTP filed a Motion to Impose Sanctions.  CRD Dkt. Entry No. 15.  In its Motion to Impose Sanctions, CTP stated that Respondent did not produce documents responsive to its RFP in compliance with my February 17, 2026 Order.  CRD Dkt. Entry No. 15 at 1-2.  CTP requested that I strike Respondent’s Answer and issue an initial decision and default judgment imposing a $7,115 civil money penalty.  Id. at 2.  On March 10, 2026, CTP also filed a Motion to Stay Deadlines.  CRD Dkt. Entry No. 16.  On the same date, I issued an Order allowing Respondent until March 30, 2026 to respond to CTP’s Motion to Impose Sanctions.  CRD Dkt. Entry No. 17.  My March 10, 2026 Order again warned Respondent that if it failed to file a response, “I may grant [CTP’s] Motion in its entirety.”  Id. at 1.  The Order also granted CTP’s Motion to Stay Deadlines.  Id.

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

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).

Page 4

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

• Respondent failed to comply with paragraph 4 of my October 14, 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 February 17, 2026 Order Granting Motion to Compel Discovery, requiring Respondent to comply with CTP’s 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 January 26, 2026 Order, allowing for an opportunity to respond to CTP’s Motion to Compel Discovery and Respondent failed to file a response to my March 10, 2026 Order, allowing for an opportunity to file a response to CTP’s Motion to Impose Sanctions.  Thus, I conclude that Respondent has abandoned its defense of this case despite previous participation in this administrative proceeding in the fall of 2025.

In the absence of any explanation from Respondent, I find no basis to excuse Respondent’s continued failure to comply with my various Orders.  Despite explicit warnings that failure to comply with Orders could result in sanctions, Respondent did not comply.  See CRD Dkt. Entry Nos. 4 ¶ 21; 14.  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.

Page 5

Accordingly, I must determine whether the allegations in CTP’s Complaint establish violations of the Act.

Specifically, CTP alleges the following facts in its Complaint:

• Respondent owns K B A Fuel Services, Inc. d/b/a Fill Up, located at 4404 Forestville Road, District Heights, Maryland 20747.  CRD Dkt. Entry No. 1 ¶ 11.
• Respondent’s establishment receives tobacco products in interstate commerce, including JUUL Menthol e-liquid products, and holds them for sale after shipment in interstate commerce.  Id. ¶ 12.
• Previously, on May 10, 2024, CTP initiated a civil money penalty action, CRD Docket Number T-24-2878, FDA Docket Number FDA-2024-H-2281, against Respondent alleging that Respondent committed at least three violations of the Act.  CTP alleged those violations occurred at Respondent’s business establishment on May 16, 2022, and February 27, 2024.  Id. ¶ 14.
• The previous action concluded when Respondent admitted to “all of the violations in the Complaint and paid the agreed upon penalty.”  Id. ¶ 15.
• At approximately 12:49 PM on February 24, 2025, 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 JUUL Menthol e-liquid product.  Additionally, Respondent failed to verify, by means of photographic identification containing a date of birth, that the purchaser was 21 years of age or older.  Id. ¶ 13.

These facts establish Respondent Fill Up’s liability under the Act.  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.

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 May 16, 2022,

Page 6

February 27, 2024, and February 24, 2025.  Act § 906(d)(5).  On the same dates, 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 C.F.R. § 1140.14(b)(2)(i).

CTP has requested a civil money penalty of $7,115, 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 $7,115 is warranted and order one imposed.