wherein penalties for multiple violations shall increase from one violation to the next congress specifies a scale of increasing penalties for each successive violation and a directive that the f d a cannot charge  retailer with a violation unless the retailer has received notice of all previous violations in this way congress ensured that each increase penalty level applies only if the retailer continues to violate the and then there's the cases anew i mean isn't that the issue before us is to the agency properly count the violations here and if you just acknowledge that the statute doesn't to record them to do that then think the statute does not use the words count the but this statute does direct the agency to assess violations so that the penalty increases from one violation to the next it also directs that this at a time in assess more than one penalty at a time you know i see you know i see your point about to violation from one transaction but suppose instead of the facts of this case the inspector saw so the stores saw the clerk sale to a minor and charged one violation and also noticed that there was a vending machine selling cigarettes on the other side of the store and charged too could they not do that under your theory if they could not and again now that why would congress say that because congress completely unrelated violations what sense does that make congress wanted wanted retailers to have multiple opportunities to receive notice that they were in violation of some regulations under the under the act and have an opportunity to take  action to correct whether by put these are totally different regulation and i get your point about look if you're selling minors you should be notified but why what possible reason would congress have heard the say words to you a retailer selling cigarettes to three miners they would be appropriate to you to assess all of the penalties involved there so for instance if each of the sales and bolts of failure to check i a sale to a minor and the retailer had already received it warning letter for the same by elations you know in under the agency's policy it would not receive a hearing at that time it would have devastating to these businesses retailer may respond to the letter and say what it's going to do to correct the violations it provides no indication that that retailer could request a hearing at that time in fact the f d a has taken the position that this is not a final agency action that would entail the that the agency must provide a hearing pursuant to the procedures established to the regulations and then providing for an expedited procedure for the ministry of appeal of an alleged violation waiting  on employee testimony they may rely on the security tapes to show that the employee had in fact checked i d and you know two years later it is virtually certain that that evidence will not be available  e that goal under orton's view no matter how egregious leak tobacco retailer is violating the tobacco silverstreak sions the agency's hands are tied and it can turn to only one violation in other words if an f d a commissioned inspector walks into a convenience store and observe a vending machine directly ahead of him a sign in the corner offering free samples of cigarettes an employee who is opening packages of cigarettes to sell individual seagrass and another clerk who is selling tobacco to the entire fifth grade class from the al the measure is cool across the street the agencies hands are tied and they can select only one of those many violations to chart and edition to that under orton motor penalty for violations of the tobacco sales restriction now each of those violations can be counted under the civil money it's persian that congress established or it is relying on the notice provisions the acts who argue that the f d a cannot achieve the goal of protecting minors from the sale tobacco and that it does that by relying on notice provisions that were aimed at a very particular concern that concern example of a minor purchasing tobacco from a retail clerk i suppose that retail clerk must first ask for the identification to verify is under the regulations if he fails to do that you know the person happens to  thirteen doesn't ask for id he's violated one of the regulatory provisions he then sells tobacco to the thirteen year old he has violated the second and it should come as you can see just trying to before he walked in so i  the court in terms of comparing when you have a sale to a natural minor which of course is what the tobacco control act is is trying to regulate under a strict to compare that to a clerk who in similar circumstances without asking for an id happens to sell to a twenty five or twenty six year old now that's only one violation of the regulations it makes sense that congress would think if you were actually selling tobacco to a minor which is what we are trying to prevent her very good public health reasons that that would be two separate violation now you could have two separate violations in a single transaction that didn't involve the sale to a minor for example you might have a vending machine  sales order process works to be to be assessed you know tobacco sale order the retailer must commit five repeated violations of a particular restriction so that would be for example the violation in a sale of tobacco to a minor or in having a vending machine and there's the inspector comes back in the same vending machine is there comes back in six months later is seen vending machine you have to have five repeated violations of a  by with a minor who attempts to purchase cigarettes and they inspect or when he does a visual advertising and labeling inspection goes and i mean this isn't somebody who is hiding behind the bounty paper towels and i am number three is sort of waiting to spring up and see what he can find the inspector announces himself makes clear that an inspection is happening all of that said if an inspector wanted taylor i'm sorry which is it it's in at the agency discussion and in the guidance of how how the inspections are conducted yes that's in the q and a that is that is in the record on this and that but in addition and more importantly an inspector walks in on a tuesday and a clerk is selling two three sixteen year old kids it is not as if that is an isolated incident and that tobacco retailer should not be treated as orton motor would have it exactly the same as a tobacco retailer who has violated only one restriction if you're selling to sixteen year olds on tuesday we can reasonably expect you were selling to sixteen year olds the tuesday before and the friday before that and charging you first if it's a quirk first day on the job under the statute in assessing a civil money penalty f d a is required to take into account issues including training programs ability to pay effect on the business all of that is evidence that the tobacco retailer could put forward but again of course if it's the first violation the agency policy is to issue a warning letter so as or in motor did in this case the tobacco retailer gets a warning letter from the agency correct the violations listed above that failure to credits may result in f d a taking regulatory action which may include a simple money penalty and of course if you do not violate the tobacco sale restrictions again all you have is a warning letter there  conducts a follow compliance check and finds that you are not complying they may initiate and then force not proceeding against you or should we see if you see that your first seen through to judge wilkins was different than this one so and i is as i read that what congress instructed the agency to do was to use the ordinary procedures that it has in place for assessing civil money penalty is a certain regulation cited in our brief  so to use those procedures for enforcement actions when it is seeking civil many penalties now when the agency files its administrative complaint those are alleged violations the agency has not had those violations and it may be that there are seventeen point two what i interpret it is civil money penalties to start out the second violation which is where the civil money penalty is a sassed and i'd also note that congress of course if you look at the next version there  in the case of the first violation where there is no approved training program congress allowed for a two hundred fifty dollar penalty in those cases so it it's not the congress today anticipate that an f d a inspector may walk in and see a violation and that there may be a penalty that arises from that first violation but it's not the key is that when you have an approved training program which this is the program that f d a is currently operating under you get no civil money penalty after that first alleged violation instead you get a warning letter now if for a motor work contract then you would have a full blown administrative hearing followed by judicial review the result of which would be the issu warning letter then it wouldn't make sense for congress to have included all of these other notice her visions in here of course you get why would you need notice before a follow up compliance check if you in fact have to go through an entire nothing the retailer had and i say i try to make it more complicated than what they read the retailer has the opportunity at the hearing to challenge any of the violations alleged and if the retailer morning well if a warning letter for example were issued to the wrong retailer and retailers as i am not at this address they are there's contact information for the agency in a warning letter that in an e mail address a phone number very easy to call and explain like this is not actually that sort of the first answer in terms of addressing an actual mistake in the warning letter with respect to the violation the lesson the warning letter again is as we've discussed you have an opportunity to challenge all of that in a second hearing it's going to depend on the fact that the case the agency as a matter of enforcement discretion generally only counts one violation for a minute  night my question my question is supposed to work had proven that to the to warning letter was inappropriate because the kid was the person was twenty seven all right good proving now what are the consequences of that for what argument the f d a is guidance which inadvertently was emitted from the record and from the agenda that we produce you actually provides that i have with respect to a you know sale order you can have multiple