UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

THE CITY OF NEW YORK,

Plaintiff,

-against-

ISLAND SMOKES LLC, dlbla ISLAND SMOKES,ISLAND SMOKES III LLC, d/biA ISLAND SMOKES,AMY R. BIAGI, PAT DONNELLY, NICHOLASCARANNANTE, JOHN J. KIMBALL, KENNETH J.

LACRECCI, NADIA O. YIZUF.TA, ZENGHUA WANGand John Does 1-25, owners or employees of entities doingbusiness under the trade name "Island Smokes,"

Defendants.

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JT]DGE FORREST

COMPLAINT

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Plaintiff the City of New York (the "City"), Uli-t, f*rirl Michael A. Cardozo,

Corporation Counsel of the City of New York, respectfully alleges, with knowledge of its own

actions and on information and belief as to the actions of others, as follows

Nature of the Action

1. This is a civil action for injunctive relief, damages and penalties, brought

pursuant to the Contraband Cigarette Trafficking Act, 18 U.S.C. ç 234I et seq. ("CCTA"), the

Cigarette Marketing Standards Act, N.Y. Tax L. $ 483 et seq. ("CMSA") and for abatement of a

common law public nuisance.

2. The defendants are owners and/or operators of businesses that

manufacture, possess, advertise, offer to sell, sell and/or distribute cigarettes to the public, in

violation of numerous federal, state and local laws governing cigalette taxation and fire safety.

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3. Defendants sell loose tobacco and pre-formed cigarette paper tubes with

attached filters and provide customers with access to, instruction on and assistance with

defendants' machines that rapidly produce finished cigarettes.

4. Defendants engage in transactions with cigarettes in New York City

without paying New York State and New York City cigarette excise taxes, without affixing New

York State or New York City tax stamps to cigarette packages, and without complying with laws

requiring that all cigarettes sold in New York State be "fire-safe."

5. The City seeks in this action: (i) to enjoin, under the CCTA, the CMSA

and the common law, defendants' shipment, transport, receipt, possession, advertising, sale,

offering for sale and/or distribution of unstamped cigarettes in New York City; (ii) to recover

statutory penalties under the CCTA; and (iii) to recover damages under the CCTA and the

CMSA, equal to the amount of each $15 New York City tax stamp that should have been affixed

to each carton of unstamped cigarettes that defendants shipped, transported, received, possessed,

sold, distributed or purchased in the City; and (iv) to recover attorneys' fees under the CMSA.

PARTIES

6. Plaintiff the City of New York (the "City") is a municipal corporation

organized under the laws of the State of New York.

1. Defendant Island Smokes LLC is a limited liability company formed

under the laws of the State of New York, doing business as "Island Smokes," with a principal

place of business at 15 Brower Court, Staten Island, N.Y. 10308.

8. Defendant Island Smokes III LLC ("Island Smokes III") is a ìjmited

liability company formed under the laws of the State of New York, also doing business as

"Island Smokes," with a principaì place of business aT 116 Eldridge Street, New York, N.Y.

10002.

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9. Defendant Amy R. Biagi is the President of Island Smokes LLC and a

resident of the State of New York, residing at 18 Myrtle Court, Staten Island, N.Y, 10310.

10. Defendant Nicholas Carannante is a principal of Island Smokes LLC and a

resident of the State of New Jersey, residing at 127 Mountain Lake Rd, Little Egg Harbor Twp,

NJ 08087-3702.

11. Defendant Pat Donnelly is a principal of Island Smokes LLC and a

resident of the State of New Jersey.

12. Defendant John J. Kimball is a principal of Island Smokes LLC and a

resident of the State of New York, residing at 165 Byrne Ave., Staten Island, NY 10314-4406.

13. Defendant Kenneth J. Lacrecci is a manager of Island Smokes LLC's

Staten Island location and a resident of the State of New York, residing at 18 Myrtle Court,

Staten Island, N.Y. 10310.

14. Defendant Nadia O. Vizueta is a principal of Island Smokes LLC and a

resident of the State of New Jersey, residing at 300 Constitution Ave., Apt 152,

Bayonne, NJ 07002-5074.

15. Defendant Zenghua 'Wang is a principal of Island Smokes III LLC and a

resident of the State of New York, residing ar2lHoward St., Apt l, New York, NY 10013-3136.

16. John Does 7-25 are individuals who do business under the nâme "Island

Smokes" and/or are principals of Isìand Smokes LLC or Island Smokes III and/or are licensed by

or otherwise affiliated with Island Smokes LLC or Island Smokes III, or any other New York

limited liability company with "Island Smokes" in its name. The identities of John Does 1-25

are unknown to the City at this time. This complaint will be amended to provide the true names

if and when those individuals are identified.

3

JURISDICTION AND VENUE

17. The Court has jurisdiction over the subject matter of this action pursuant

to 18 U.S.C. ç 2346 (b), 28 U.S.C. $ 1331 and28 U.S.C. $ 1367.

18. Venue is proper in the Southern District of New York under 28 U.S.C,

$ 1391 (b), because a substantial part of the events and omissions giving rise to the claims

occurred in this district.

BACKGROUND

Cigarette Taxation and Regulation in New York

19. The State and City of New York each impose an excise tax on cigarettes;

imposition and collection of the tax are accomplished by either of two methods. A tax is

imposed on all cigarettes possessed for sale in the State and the City by New York State Tax

Law ("N.Y. Tax L.") $ 471 and/or the Administrative Code of the City of New York ("Admin.

Code") $ 11-1302(aX1), with exceptions not relevant to this complaint.

20. A tax is also imposed on all cigarettes "used" in the State or the City by

N.Y. Tax L. g 47l-a and/or Admin. Code $ l1-I302(a)(1), with exceptions not relevant to this

complaint. The "use" of cigarettes is "any exercise of a right or power, actual or consttuctive,

and shall include but is not limited to the receipt, storage, or any keeping or retention for any

length of time, but shall not include possession for sale by a dealer." Admin. Code $ 11-1301

(4); see a/so N.Y. Tax L. $ 471-a.

21. Under State and City law, "[i]t shall be presumed that all sales or uses ...

are subject to tax until the contrary is established, and the burden of proof that a sale or Lìse is not

taxable hereunder shall be upon the vendor or the purchaser." Admin. Code I l-1302 (d); see

a/so N.Y. Tax L. Ë 471.

4-

22. As to the tax on possession for sale, State and City law each require that a

cigarette tax stamp be affixed to every package of cigarettes possessed for sale in the State or

City (with exceptions not relevant to this complaint). All cigarettes possessed for sale must bear

tax stamps as evidence that the cigarette excise tax has been pre-paid. N.Y. Tax L. 9 411;20

N.Y.C.R.R.$ 76.1(aXl); Admin. Code $ Il-302(Ð.

23. As to the tax on use, within twenty-four hours after liability for the tax on

the use of cigarettes accrues, each person liable for the tax shall file with the New York City

Commissioner of Finance a return, together with a remittance of the tax shown to be due thereon.

Admin. Code $ ll-1302.

24. At all times relevant to this complaint, the New York City excise tax on

the sale or use of cigarettes has been $1.50 per pack of 20 cigarettes or $15.00 per carton of 200

cigarettes and the State excise tax was 542.50 per carton of 200 cigarettes.

25. New York Executive Law 156-c requires all cigarettes sold in the State to

be certified as in compliance with the New York fire safety standards that are promulgated in 19

N.Y.C.R.R. S 429.1 ("fire-safe cigarettes") and to be marked to indicate that the cigarettes

comply with those standards. 19 N.Y.C.R.R. $ a29.8 (a).

The Contraband Cigarette Traffïcking Act

26. Pursuant to the CCTA, with exceptions not relevant to this complaint, "it

is unlawful for any person knowingly to ship, transport, teceive, possess, sell, distribute or

purchase 'contraband cigarettes'...." 18 U.S.C. Ë2342.

21. "Contraband cigarettes" are defined as 10,000 or more cigarettes (50

cartons) that are present in a jurisdiction and bear no evidence of the payment of the

jurisdiction's State or ìocal cigarette taxes, if the State or local government uses tax stamps to

evidence payment of cigarette taxes. l8 U.S.C. ç2341(2).

28. Accordingly, it is unlawful under the CCTA for any person knowingly to

ship, transport, receive, possess, sell, distribute or purchase 10,000 or more unstamped cigarettes

in a state or locality that requires tax payments to be evidenced through cigarette tax stamps.

There is no reqúirement that the shipment, transport, receipt, possession, sale, distribution or

purchase of the 10,000 unstamped cigarettes occur in a single transaction, as opposed to multiple

transactions.

The Cigarette Marketing Standards Act

29. Pursuant to the New York CMSA, it is unlawful, with the intent to avoid

the collection or paying over of cigarette excise taxes, to advertise, offer to sell, or sell cigarettes

at less than what the CMSA defines as the "cost of a retail dealer." N.Y. L. Tax $ a8a (a) (1).

30. The "cost to a retail dealer," as defined by the CMSA, includes "the full

face value of any stamps which may be required by law." NY Tax L. $ 483 (a) (1) and $ 483 (b)

(3) (A).

3L At all times relevant to this complaint, the defendants have been "retail

dealers" of cigarettes within the meaning of the CMSA. N.Y. Tax L. $ 484 (a) (4).

32. Accordingly, as required by N.Y. Tax L. S$ 471, 41|-a and Admin. Code

$ 11-1302,the cigarettes used or possessed for sale by defendants should have included within

their price "the full face value of any stamps which may be required by law," i.¿., $58.50, the

combined price of the City and State tax stamps required to be affixed to a carton of cigarettes.

33. A retail dealer's advertisement of, offer to sell or actual sale of cigarettes

at a price less than cost of the retail dealer, is "prima facie evidence of intent to avoid the

collection or paying over of such taxes as may be required by law." NY Tax L. $ 484 (6).

6

Common Law Public Nuisance

34. A common law public nuisance is created by conduct that unreasonably

and substantially interferes with rights common to the general public, with commerce and the

quality of daily life and which endangers the property, health and safety of large numbers of

people.

FACTS

Island Smokes

35. The New York City Department of Consumer Affairs ("DCA") licenses

cigarette retailers, defined as any person, other than a wholesale dealer, engaged in selling

cigarettes. Admin. Code $ 2O-20I.

36. Island Smokes LLC applied for and was issued DCA Cigarette Retailer

License No. 1383624.

31. Island Smokes III LLC applied for and was issued DCA Cigarette Retailer

License No.1399672.

38. Island Smokes LLC's advertising states that:

It is "the first full service natural and discount cigarette shop in the

tri-state aÍea."

It offers "All-Natural Cigarettes Only $39.95"

It offers "Cartons of All-Natural Cigarettes Starting at $39.95"

It offers "Only $3.95 Per Pack 2OO cigareltes"; "All major brands""'We have all varieties" "Full Flavor, Menthol, Lites and

Ultralites."

states in English and Chinese that

It seìls "all natural cigarettes," for which it charges "$29.95 percarton"

a.

b

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39. Island Smokes III's advertising, an example of which is replicated below,

7

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b. It sells at $29.95 "per carton" ("200 cigarettes or 10 pack")

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40. On or about April 29, 2071, investigators from the New York City

Sheriff's Office, Division of Tax Enforcement, entered Island Smokes LLC's location at 15

Brower Court, Staten Island, N.Y. The Sheriff's investigators were informed of an ongoing

"sale," in which a cafton of cigarettes could be purchased for $32.50 "aftel taxes," an apparent

reference to sales tax only. The Island Smokes salesperson offered, and the investigators

purchased, two cartons of cigarettes for $60.

41. The investigators paid for and were furnished with loose tobacco and

empty cigarette tubes (cigarette-sized paper cylinders to which filters were attached), taken to

machines located in the store and instructed in how to use the machines to make a completed

cigarette. The machines filled the tubes with the tobacco, one by one, eventually producing two

cartons of 200 cigarettes each.

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42. The investigators departed the store with two caftons of cigarettes, to

which New York City or New York State tax stamps were not affixed and which contained no

markings certifying the cigarettes as fire-safe.

43. On or about October 2I, 2011, Sheriff's investigators entered Island

Smokes LLC's location at 15 Brower Court, Staten Island, New York and were informed that the

price for one carton of cigarettes was 532.51 . The investigators agreed to the purchase and were

again provided with loose tobacco, cigarette tubes and access to a machine to assemble the

cigarettes.

44. The investigators were not required to pay for the cigarettes until after

using the machines to fill the cigarette tubes with tobacco to produce completed cigarettes.

45. The investigators departed the store with one carton of cigarettes, which

was not affixed with New York City or New York State tax stamps and which contained no

markings certifying the cigarettes as fire-safe.

46. The Sheriff's investigators observed approximately 28 individuals

entering the store located at 15 Brower Court in the course of 3 hours, most of whom emerged

with at least one cafion of cigarettes.

41. On or about October 28,2011, a Sheriff's investigator returned to Island

Smokes's LLC's 15 Bower Court location, purchasing cigarette tubes and tobacco sufficient for

one carton of cigarettes, paying $38.01 before being brought to the machines to make the

finished cigarettes. A store employee assisted the investigator in making the cigarettes.

48. The investigator departed the store with one carton of cigarettes, which

was not affixed with New York City or New York State tax stamps and which contained no

markings certifying the cigarettes as fire-safe.

9

49. On or about October 28,2011, a Sheriff's investigator entered Island

Smokes III LLC, located at 116 Eldridge St., New York, N.Y. 10002, and was offered an

introductory price of $29.99, $32.50 with sales tax, for 200 cigarette tubes and loose tobacco

sufficient for a carton of cigarettes. A store employee assisted the investigator in making

approximately 60 cigarettes. The investigator was not required to pay for the cigarettes until

after making a carton's-worth (200) of cigarettes.

50. The investigator departed the store with one carton of cigarettes which

was not affixed with New York City or New York State tax stamps and which contained no

markings certifying the cigarettes as fire-safe.

51. On or about October 31,2071, a Sheriff's investigator entered Island

Smokes trI LLC's location at 116 Eldridge Street location and purchased 200 cigarette tubes and

tobacco sufficient for a carton of cigarettes. A store employee assisted the investigator in

producing approximately 20 cigarettes. The investigator was not required to pay until after

completing the carton of cigarettes.

52. The investigator departed the store with one carton of cigarettes, which

was not affixed with New York City or New York State tax stamps and which contained no

markings certifying the cigarettes as fire-safe.

53. In responding to a communication from the City requesting Island Smokes

to cease operations, Island Smokes LLC denied selling or manufacturing cigarettes, instead

describing itself as "facilitat[ing] a 'roll your own' business operation."

54. A recent news article quotes Island Smokes's attorney as stating that

Island Smokes plans to expand into all five boroughs of New York City "imminently." Records

of corporate filings in New York show that, in addition to Island Smokes LLC and Island

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Smokes III LLC, limited liability companies have been registered under the names "Island

Smokes Distribution LLC," "Island Smokes Il LLC," "Island Smokes VIII LLC," "Island

Smokes XIII LLC," "Island Smokes XVII LLC," "Island Smokes XVIII LLC" and "Island

Smokes XXI LLC."

55. None of the packages of cigarettes purchased by Sheriff's investigators

from Island Smokes LLC or Island Smokes III LLC were affixed with New York City or New

York State tax stamps.

56. According to their advertising, defendants engage in transactions like

those detailed in paragraphs 40-52 hereof for at least 12 hours a day (15 Brower Court) or 14

hours a day ( 1 16 Eldridge Street), seven days a week. Defendants engage in such transactions in

the City and State of New York with, in the aggregate, more than 10,000 cigarettes that do not

bear tax stamps.

51. The transactions detailed in paragraphs 40-52 hereof establish that

defendants have shipped, transpofted, received, possessed, sold, or distributed contraband

cigarettes, in violation of 18 U.S.C. ç 2342.

58. Defendants are not licensed by the State or City of New York to affix tax

stamps, are not common carriers, do not hold a permit under Chapter 52 of the Internal Revenue

Code and are not officials of any government engaged in the performance of official duties.

Alleeations Related to the Cigarette Marketing Standards Act

59. The facts alleged in paragraphs 35-52 hereof establish that defendants

advertise, offer to seì1, and/or seìl cigarettes at less than the cost of a retail deaìer.

60. The facts alleged in paragraphs 35-52 hereof establish that defendants

advertise, ofïer to seìÌ, and/or sell cigarettes that do not include in the sales price the fuìl face

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value of stamps which may be required by law, i.e., New York State and City tax stamps costing

$58.50 per carton, with the intent to avóid the collection of cigarette taxes.

Alleoqfinnc Rolqfpd fn f)pfpndanfst Crpefion of A Public Nuisance

a. Injury to the public health

6I. Cigarette smoking is hazardous to health.

62. The City bears significant health care costs when City residents sustain

smoking-related illnesses.

63. In a population of smokers, the number of individuals who cease smoking

over time is inversely proportional to the price of the cigarettes available to that population. It is

well-established that higher cigarette prices induce more people to quit smoking entirely or to

smoke fewer cigarettes, thereby reducing the damaging effects of smoking on health.

64. Defendants sell unstamped cigarettes to City residents at prices lower than

what the cigarettes would sell for if the amount attributable to the cigarette tax ($58.50) were

included in the sales price of the cigarettes. For example, defendants have distributed

advertising, reproduced in paragraph 39 hereof, advertising cigarettes af 929.95 per carton or

52.95 per pack.

65. By selling illegally low-priced cigarettes, defendants not only interfere

with the collection of City cigarettes taxes, they also impair the City's smoking cessation

programs and impair individual efforts at smoking reduction, thereby imposing higher health

care costs on the City and injuring the public health.

66. The District Court for the Eastern District of New York has previously

determined that the introduction of unlawfully cheap, unstamped cigarettes into the City

constitutes an injury to the publìc health of the City, and constitutes ireparable injury to the City.

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See City v. Golden Feather Smoke Shop, Inc., 2009 U.S. Dist. LEXIS 16306, at *719-120

(E.D.N.Y. A:ug. 25, 2009).

b. Sale of non-fïre-safe cigarettes

67. In 2008, U.S. fire departments responded to an estimated 114,800

smoking-related fires in the U.S., and 140,100 such fires in 2007 . In 2008, smoking-related fires

resulted in an estimated 680 civilian deaths, I,520 civilian injuries and $137 million in direct

property damage.

68. Under New York Executive Law $ 156-c, "no cigarettes shall be sold or

offered for sale in this state unless the manufacturer thereof has certified" that the cigarettes

comply with the New York fire safety standards that are promulgated in 19 N.Y.C.R.R. ç 429.I,

et seq. ("fire-safe cigarettes"). Executive Law 156-c was passed to promulgate fire safety

standards for cigarettes in order to limit their risks of causing fires.

69. There were 24 cigarette fire deaths per year in New York State in 2006-

2001 (the first ftrll year when it should not have been possible to buy legally a non-fire-safe

cigarette in New York). That number represents over a one-third (35Vo) decline, from 38 deaths

per year in2002-2003, before the introduction of fire-safe cigarettes.

10. Island Smokes LLC and Island Smokes III LLC are each a "manufacturer"

under Exec. L. $ 156-c, because each of them is an entity "which manufactures or otherwise

produces cigarettes or causes cigarettes to be manufactured or produced anywhere" that are

intended for sale in New York State. 19 N.Y.C.R.R. $ 429.2 (c) (1). Neither defendant has

certified to New York State that any cigarettes it sells or offers for sale comply with 19

N.Y.C.R.R. ç 429.r.

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1L. By manufacturing and/or selling non-fire-safe cigarettes, defendants

violate Exec. Law $156-c and increase the risk of injury caused by non-fire-safe cigarettes and

thereby cause, contribute to and maintain a public nuisance.

FIRST CLAIM FOR RELIEF

(Violation of the Contraband Cigarette Trafficking Act, 18 U.S.C. g 234I et seq.)

72. The City realleges paragraphs I-'71 above as if fully set forth herein.

73. At all times relevant to this complaint, defendants shipped, transported,

received, possessed, sold, distributed and/or purchased more than 10,000 cigarettes which were

found in New York City without the New York State or City cigarette tax stamps required by

N.Y. Law L. g 411and Admin. Code $ 11-302(e).

14. Defendants accordingly shipped, transported, received, possessed, sold,

distributed andlor purchased contraband cigarettes within the meaning of 18 U.S.C. Ë 234t(2)

and continue to do so.

75. Unless enjoined, defendants will continue to ship, transport, receive,

possess, sell, and/or distribute contraband cigarettes.

16. Once the City has established the elements of a CCTA violation, an

injunction issues without proof of irreparable harm. City v. Golden Feather Smoke Shop, Inc.,

597 F.3d 715,120-I2l (2d Cir.20l0).

77. As a direct result of the foregoing violations of the CCTA, the City has

suffered damages in an amount to be determined at trial as to each defendant, because each

defendant was obligated to pay $15 toward the cost of the New York City tax stamp that is

required on every carton of cigarettes possessed for sale in New York City or $15 for every

carton of cigarettes they "used" in the City.

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SECOND CLAIM FOR RELIEF

(Violation of the Cigarette Marketing Standards Act, N.Y. Tax L. $ 483 et seq.)

78. The City repeats and realleges paragraphs I-17 as if fully set forth herein.

19. Defendants are "retail dealers" within the meaning of the CMSA.

80. Defendants advertised, offered to sell, and/or sold cigarettes for less than

the "basic cost of cigarettes" within the meaning of the CMSA, N.Y. Tax L. $ 483, by not

including, as part of the price of a carton of cigarettes, the full face value ($58.50) of the

cigarette tax stamps which may be required by New York City and State law.

81. Pursuant to the CMSA, N.Y. Tax L. $ 484 (6), defendants'sale of

unstamped cigarettes is prima facie evidence of each defendant's intent to avoid the collection

of, or paying over of, taxes required under New York law.

82. Unless enjoined, Defendants will continue to advertise, offer to sell,

and/or sell cigarettes for less than the "basic cost of cigarettes" within the meaning of the CMSA.

83. Once the City has established the elements of a CMSA violation, an

injunction issues without proof of irreparable harm. City v. Golden Feather Smoke Shop, Inc.,

597 F.3d II5,I20-l2I (2d Cir.2Ol0).

84. Any person injured by any violation or threatened violation of the CMSA

may bring an action to prevent, restlain, or enjoin such violation or threatened violation and may

recover damages and reasonable attorney's fees. N.Y. Tax L. $ 484 (b) (1).

THIRD CLAIM FOR RBLIBF

(Public Nuisance)

85. Plaintiff repeats and reaìleges paragraphs 1 -84 as if fully set forth herein

86. Defendants' sale of unstamped, non-fire-safe cigarettes to consumers at pnces

less than the legal price creates, supplies, maintains and contributes to a public nuisance by

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unreasonably and substantially interfering with rights common to the general public, with

commerce and the quality of daily life and endangering the property, health and safety of large

numbers of residents of this State and the City of New York.

81. As a local government, the City has standing to abate common law public

nuisances.

WHEREFORE, New York City respectfully prays that the Court grant judgment

against defendants as follows:

a. On the First Claim For Relief, pursuant to 18 U.S.C. S 234I et seq.: (i)

enjoin defendants' violations of the CCTA; and (ii) impose a statutory

penalty for defendants' violations of the CCTA.

b. On the Second Claim For Relief, pursuant to N.Y. Tax L. $ 483 et seq.,

enjoin defendants' violations of the CMSA;

c. On the Third Claim for Relief, enjoin defendants' continuing maintenance

of a public nuisance by prohibiting defendants from selling or providing

unstamped, non-fire-safe cigarettes to consumers within New York City.

d. Award the City as damages the amount of City cigarette excise taxes lost

as a result of defendants' violations of 18 U.S,C. ç 234I et seq. and N.Y.

Tax L. $ 483 et seq., and the attorney's fees and costs incurred in bringing

this action; and

e. Award such other and further relief as the Court may deem appropriate.

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Dated: New York, New YorkNovember 14,20Il

MICHAEL A. CARDOZOCorporation Counsel of the

City of New YorkAttorney for Plaintiff The Ci100 Church Street, RoomNew York, New York(2r2) 188-1324

By:EricLeonard

of New York

(LB1117)438r)

Assistant Corporation Counsel

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