TiNY Report for April 8, 2021 (reporting on DTA cases issued March 24 and April 1)

For your consideration, constant reader: a Tribunal decision on a cigarette tax possession penalty and three ALJ timies. The timies are all dated April 1, and contain a footnote that has, in the past, been a trigger for sarcastic comments by yours truly. Normally I am not gullible enough to fall for April Fool’s Day scams, and I think the Supervising ALJ may be baiting me. But I respect him too much to not take the bait. He is Santiago from The Old Man and the Sea, and I am a ginormous marlin. So, let’s start with this:

Under the headline, “Say it ain’t so, Yehad!,” the Albany Times Union reported this weekend that Mr. Abdelaziz was not permitted to represent petitioners before the DTA. The article quotes “knowledgeable sources” and all three of the Determinations issued on April 1 as confirmation. The article also noted that Mr. Abdelaziz has been denied the opportunity to represent petitioners before the DTA several times in the past.

DECISION

Matter of Alselmi; Division’s Rep.: Brian Evans; Petitioner’s Rep.: Jacqueline Kafedjian; Article 20 (by Chris Doyle)

The Tribunal affirmed the ALJ’s determination (our summary here) that Petitioner, who was employed at a convenience store, did not prove with clear and convincing evidence that he was not in possession of unstamped cigarettes that he claimed he didn’t even know existed. Interesting quote: “[P]ossession of unstamped cigarettes, even in the absence of control, represents a basis for imposition of the penalty distinct from control of such unstamped cigarettes.”

Petitioner also complained that his right to confront witnesses, protected by the State Administrative Procedures Act, was violated. The Tribunal disposed of this argument by noting that Petitioner had the opportunity to subpoena the investigators upon whose report the penalties were based.

There was no mention of the argument that resonates with me in these cigarette penalty cases: The assertion of the maximum penalty, without consideration of a lesser penalty, is an abuse of discretion. In my opinion, the failure to consider the propriety of the magnitude of a discretionary penalty is abuse of discretion per se.

DETERMINATIONS

Matter of Abdelrahman; Supervising ALJ Friedman; Division’s Rep.: Mary Hurteau; Petitioner’s Rep.: pro se; Article 22 (by Chris Doyle)

The Division proved both its standard procedures and that they were followed when it mailed the Conciliation Order to Petitioner’s last known address on July 26, 2019. Therefore, Petitioner’s petition filed on February 6, 2020 was several months too late. Accordingly, in response to the DTA’s Notice of Intent to Dismiss Petition, the Judge dismissed the petition on the basis of untimeliness.

Matter of Mosid and Abdulla; Supervising ALJ Friedman; Division’s Rep.: Maria Matos; Petitioners’ Rep.: pro se; Article 22 (by Chris Doyle)

The Division proved both its standard procedures and that they were followed when it mailed the Conciliation Order to Petitioners’ last known address on October 4, 2019. Therefore, Petitioners’ petition filed on February 15, 2020 was several weeks too late. Accordingly, in response to the DTA’s Notice of Intent to Dismiss Petition, the Judge dismissed the petition on the basis of untimeliness.

Matter of Khalil and Mandour; Supervising ALJ Friedman; Division’s Rep.: Ellen Krejci; Petitioners’ Rep.: pro se; Article 22 (by Chris Doyle)

The Division proved both its standard procedures and that they were followed when it mailed the Conciliation Order to Petitioners’ last known address on September 13, 2019. Therefore, Petitioners’ petition filed on February 26, 2020 was several weeks too late. Accordingly, in response to the DTA’s Notice of Intent to Dismiss Petition, the Judge dismissed the petition on the basis of untimeliness.

Comment