A consolidated hearing on the above-captioned matter was held on May 8, 2014.

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1 CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS X DEPARTMENT OF CONSUMER AFFAIRS, against Complainant, EXPRESS SNACKS & MORE, INC., Respondent X CONSOLIDATED DECISION AND ORDER Record Nos.: NOH Nos.: PL License No.: DCA Respondent s Address: Jamaica Avenue Queens, NY A consolidated hearing on the above-captioned matter was held on May 8, Appearances: For the Department: Senior Inspector V. Zapromatov. 2 For the Respondent: Karim Virani, manager. 3 The respondent is charged with violating Title 20 of the New York City Administrative Code ( Administrative Code ) Section (a)(1) by operating as a cigarette retail dealer without a license therefore (1 count). The respondent is charged with violating the following: 1. Title 6 of the Rules of the City of New York ( 6 RCNY ) Section 5-32(c) by failing to provide receipts with all of the required information (1 count); 2. Title 1 of the New York State Code of Rules and Regulations ( 1 NYCRR ) Section by failing to include a declaration of responsibility on pre-packaged items offered for sale (3 counts). 1 The Notice of Hearing incorrectly describes the address as Union Hall Street. 2 The issuing inspector was unavailable to testify. 3 The Notice of Appearance incorrectly spells Mr. Virani s name as Varani.

2 Based on the evidence in this case, I RECOMMEND the following: Findings of Fact On April 8, 2014, the date of the inspection, the respondent was licensed to sell tobacco products. Its license contained the respondent s correct address, Jamaica Avenue in Queens, New York On April 8, 2014, the date of the inspection, the respondent s receipts contained its correct address, Jamaica Avenue in Queens, New York On that date, the respondent offered for sale pre-packaged fruit salad, chocolate pudding and strawberry yogurt, all of which did not contain the name or address of their manufacturer or manufacturers. Opinion The Department did not establish the charge by a preponderance of the credible evidence. It is undisputed that, on the date of the inspection, the respondent operated as a cigarette retail dealer and that the respondent held an active Cigarette Retail Dealer license. The senior inspector argued that the license was improper because the store was determined to be located at Union Hall Street in Queens, while Departmental Records have Jamaica Avenue in Queens as the address. He admitted that the sole basis for the determination of an incorrect address are the fact that the entrance to respondent s store was on Union Hall Street and that the store is adjacent to a larger building entrance with the number printed above the doorway. Mr. Virani established, through detailed and consistent testimony and with substantial evidence, that the respondent s legal address is Jamaica Avenue in Queens, New York. 4 He credibly explained that, although 4 The respondent s evidence includes a New York City Department of Buildings Property Profile Overview that shows, inter alia, that through Union Hall Street are part of the property with the address Jamaica Avenue; the respondent s New York State Department of Taxation and Finance Certificate of Authority with the address Jamaica Avenue in Queens; the respondent s lease, which describes the building as Gertz Plaza, with the address Jamaica Avenue, which leases Space 011 to the respondent, also located

3 the store does face Union Hall Street, the building is the only structure for an entire city block and that the stores on all four sides of the building use the address Jamaica Avenue, notwithstanding that three of the building s sides do not face Jamaica Avenue. 5 He also explained that the store is also part of a shopping center inside the building, which has an entrance at Jamaica Avenue, and that persons entering the shopping center from Jamaica Avenue have access to the respondent s store from within the building. Under these circumstances, it is determined that the respondent s address is Jamaica Avenue in Queens and that the charge has not been established. Accordingly, it will be dismissed. Charge 1 (6 RCNY Section 5-32(c)) It is undisputed that the respondent s receipts contained the address Jamaica Avenue in Queens. For reasons already stated (see ADJC above), it is determined that this is respondent s correct address. Accordingly, the charge will be dismissed. Charge 2 (1 NYCRR Section 221.4) Mr. Virani admitted the charge and waived the respondent s right to appeal. Accordingly, the charge will be sustained. ORDER The respondent is found not guilty with respect to the charge, which is hereby dismissed. The respondent is found not guilty with respect to Charge 1, which is at Jamaica Avenue; a recent example of the respondent s electric bill for the address Jamaica Avenue; a recent example of the respondent s business bank account records with the address Jamaica Avenue; and a copy of the respondent s current business insurance policy with the address Jamaica Avenue in Queens. 5 The senior inspector admitted that the Department s photographs show the number printed on the respondent s awning. Mr. Virani explain that is the address used by one of the building s other tenants, notwithstanding that Union Hall Street is technically part of the building known as Gertz Plaza with the official address Jamaica Avenue (see footnote 3, supra.)

4 hereby dismissed. The respondent is found guilty with respect to Charge 2 and is hereby ordered to pay to the Department a FINE of $1,200, which is immediately due and owing, as follows: Charge 2: $1,200 ($400 per count, for 3 counts) This constitutes the recommendation of the Administrative Law Judge. Richard J. Zeitler, Jr. Principal Administrative Law Judge DECISION AND ORDER The recommendation of the Administrative Law Judge is approved. This constitutes the Decision and Order of the Department. The Department may suspend any DCA license(s) held by the respondent if the respondent fails to comply with this Decision and Order, including payment of the fine, within thirty (30) days. Payment with a check that is dishonored or a credit card transaction that is denied or reversed will not be considered compliance with this Decision and Order. Such license(s) will not be reinstated until the respondent has served any suspension period ordered in this Decision and has paid ALL fines owed to the Department. Date: June 6, 2014 Eryn DeFontes Associate Director of Adjudication cc: Express Snacks & More, Inc express_snacks@yahoo.com Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY 10004

5 APPEAL INFORMATION You have 30 days to file an APPEAL of this decision. You must include with your appeal all of the following: (1) a check or money order payable to DCA for the sum of $25; and (2) a check or money order payable to DCA for the amount of the fine imposed by the decision, or an application for a waiver of the requirement to pay the fine as a requisite for an appeal, based upon financial hardship. The application must be supported by evidence of financial hardship, including the most recent tax returns you have filed. BY Send your appeal to myappeal@dca.nyc.gov and, at the same time, mail the $25 appeal fee to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY BY REGULAR MAIL: Mail your appeal and the $25 appeal fee to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY You must also mail a copy of your appeal to: DCA, Legal Division, 42 Broadway, 9 th Floor, New York, NY Make sure to include in your appeal some indication or proof that you have sent a copy of the appeal to DCA s Legal Division. You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY