161 Stationery Inc., located at 90 East 161st Street in the Bronx. Image Credit: Google Maps.
161 Stationery Inc., a prior violator, sold a single cigar for a price below City-required minimum. On October 21, 2017, Awad Ahmad, N., an employee of 161 Stationery Inc., located at 90 East 161st Street in the Bronx, was on the phone and helping other customers when an inspector from the Department of Consumer Affairs entered the store. The inspector placed $2.00 on the counter to purchase a cigar, and Awad Ahmad, N. sold the inspector a single Entourage Palma cigar for $1.50.
The Department of Consumer Affairs charged 161 Stationery Inc. with selling a cigar that was not sold in a package of at least 4 cigars for a price of $3.00 or less per cigar. The DCA also charged 161 Stationery Inc. as a repeat violator. An OATH hearing office upheld the charges, and 161 Stationery Inc. filed an administrative appeal.
On appeal, 161 Stationery Inc. argued that the correct sales price of $3.50 was listed on the purchased cigar and the unlawful $1.50 sale was a mistake because Awad Ahmad, N. was distracted by other customers in the store during the transaction. Chief OATH Administrative Law Judge Fidel F. Del Valle rejected this argument, ruling that an employee’s mistake or lack of intent was an insufficient defense. ALJ Del Valle recommended a penalty of $2,000 and revocation of the store’s cigarette retail dealer license.
DCA v. 161 Stationery Inc., OATH Appeal No. 70044956 (Jan. 17, 2019).
By: Allyson Balcolm (Allyson is a New York Law School graduate, Class of 2019).
CityLaw Comment: The City reports that 1,293 tobacco and cigarette retail dealers in 2017 violated City tobacco laws for selling or offering to sell a cigar for $3.00 or less that was not in a package of at least four cigars. In 2018, the number of violators fell to 653.
No one should have a license to sell tobacco products at any price.
This result seems harsh for 161 Stationery Inc. if we exclude social concerns such as the health costs caused by tobacco, the environmental costs of littering, insecticide and transport used in production, and the criminal enablement by even the legal tobacco market which encurages a black market of untaxed sales. However, if one considers the regulatory intent which is beyond mere collection of tax revenue, then viewed in this light revoking the tobacco license is a great victory for all.
Now the federal, sate and local governments must act to halt all tobacco sales.