Kwik Stop Tobacco Sales PenaltyMEMORANDUM
March 4, 2003
TO:The Honorable Mayor and City Council Members
FROM:Michael C. Van Milligen, City Manager
SUBJECT:Penalties for Tobacco Permit Holders
Chief of Police Kim Wadding is recommending that the City Council set a hearing for
April 7, 2003, to consider assessing the appropriate civil penalty regarding underage
tobacco sales concerning two tobacco permit holders.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
____________________
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Klm B. Wadding, Police Chief
DATE:February 28, 2003
TO:Michael C. Van Milligen, City Manager
FROM: Kim B. Wadding, Police Chief
RE:Penalties for Tobacco Permit Holders
INTRODUCTION:
The purpose of this memo is to recommend that the City Council set a hearing to consider
assessing the appropriate civil penalty regarding underage tobacco sales concerning two
tobacco permit holders.
BACKGROUND:
The Dubuque Police Department continues to work with the Iowa Department of Health in the
prevention of tobacco sales to underage youth by completing tobacco compliance checks to
area businesses. The compliance checks used trained underage volunteers under
supervision of police officers. Of the compliance checks, employees of the listed two
businesses have received convictions for underage tobacco sales. The businesses include:
2nd 10/24/02 Kwik Stop 2320 Highway 61 Melinda Dolan
1st 11/07/02 Casey's General Store 4003 Peru Road Shannon R. Bennett
DISCUSSION:
Section 453A.22 of the Iowa Code provides that in addition to penalties paid by employees,
the State or local authority shall assess a penalty against the permit holder after the hearing
as follows:
1)For a first violation, the retailer shall be assessed a civil penalty in the amount
of three hundred dollars. Failure to pay the civil penalty as ordered shall
result in automatic suspension of the permit for a period of fourteen days.
2)For a second violation within a period of two years, the retailer's permit shall
be suspended for a period of thirty days.
3)For a third violation within a period of three years, the retailer's permit shall be
suspended for a period of sixty days.
4)For a fourth violation within a period of three years, the retailer's permit shall
be revoked.
RECOMMENDATION:
It is recommended that the City Council set a hearing for the above permittees. If after the
hearings the violations are sustained, the Council would assess the appropriate civil penalty to
each business based upon the number of violations.
ACTION REQUESTED:
Request the City Council to set a hearing date regarding the assessing of a civil penalty to the
listed tobacco permit holders.
Cc: Jeanne Schneider, City Clerk
NORMAN, GILLOON,
WRIGHT & HAMEL, P.C.
Attorneys
Wayne A. Norman, Jr.*
Arthur F. Gilloon*
E. David Wright*
Dirk J. Hamel**
Christopher R. Paar***
May 1, 2003
VIA FACSIMILE 589-0890
Mayor Terry Duggan and the
Dubuque City Council
c/o Jeanne Schneider
City Clerk
City Hall
50 West 13th Street
Dubuque, IA 52001
RE: City Council Agenda 5/5/03
Kwik Stop Action Item re Tobacco Sale
Dear Mayor Duggan and Council Members:
We represent Kwik Stop.
Please Reply To:
P.O. Box 857
Dubuque, IA 52004-0857
E-Mail: ngwhlaw@pcii.net
Writer's e-mail address:
aeilloon'abglaw.com
Please find with this fax a copy of my letter of April 28 and attachments to City
Attorney Barry Lindahl regarding the above action item.
This matter is set for hearing on Monday, and I have discussed it today with Mr.
Lindahl.
Mr. Lindahl is in agreement that the law regarding second offense tobacco sales has
been changed, effective immediately.
Thus, it is necessary that I inform the Council that Kwik Stop desires to pay
a $1,500.00 penalty rather than have a 30-day tobacco license suspension.
You may use this letter as proof of Kwik Stop's position, and I trust the Council will
act accordingly.
Security Building / 800 Main Street / Dubuque, IA 52001 / (563) 556-6433 / Fax: (563) 556-7706
*Also Licensed in Wisconsin / **Also Licensed in Illinois / ***Also Licensed in Minnesota
Mayor Terry Duggan and the
Dubuque City Council
Page Two
May 1, 2003
If there is any question in regard to this matter, please contact me immediately.
Thank you very much.
AFG/jdh
Enclosures
cc w/o encs.:
Sincerely, '
Arthur F. illoon
Kim B. Wadding, Police Chief
City Manager Michael C. Van Milligen - FAX: 589-4149
Barry Lindahl, City of Dubuque Corporation Counsel - FAX: 583-1040
Apr.2$. 2003: 4:47PM BARRY A LINDAHL, £SQ~c~n'Mm
NORMAN, GILLOON,
WRIGHT & ltA_M .L P.C.
Attorneys
E. DavM
Dirk
April 28, 2003
Pleme Reply To:
Dubuque, IA S2004~gS7
F~M~dI: ngwMaw~p~d,nc~
VIA FACSIMILE 583-1040
Barry A, Lindahl
Corporation Counsel
City of Dubuque
Suite 330, 300 Main Street
Dubuque, IA 52001
RE: Kwik Stop Action re: Tobaaco Sale - 5/5/03 Council Meeting
Dear Barry:
We represent Kwik Stop.
The matter cfa second offense tobacco sale involving Kwik Stop employee Melinda
Dolan is on the agenda for next Monday's Council meeting. I understand you are in
Washington, D.C., but I wanted to send you this right away so that we could discuss it as
soon as you return.
Iowa Code Chapter 453A was recently amended by the Legislature under Senate
File 401. I am attaching a copy of that Amendment,
Of particular importance are the amendments to Section 453A,22, which cover the
tobacco violations for second offenses by a retailer through their employee. The law has
been changed now under Section 453A.22, subsection 2 so that it reads as follows:
b. For a second violation within a period of two years, the retailer
shall be assessed a civil penalty in the amount of one thousand five hundred
dollars or the retailer's permit shall be suspended for e period of thirty days.
The retailer ma_v ~select its ,,reference and the penalty to be aoclied
New Section 5, "Applicability Provisions," states that the new amendment, ",,. is
applicable to each violation of Section 453A.2, subsection 1, by a retailer or an employee
of a retailer which is oendim; on tho effective date Of this Act and for which the
0enalN has not been assessed under Section 453A.22, subsection 2. Code
security aulldtnff I ~00 Mlin Str~ut / Dubuque, lA S200! / (S6~) SS~ / Fmr: (~) ~S6-7706
*Abo Licensed in W-tseoltsJn / **AIso LJcallsed bi lllhols
Apr.28. 2003: 4:47PM BARRY A LINDAHL, ESQR[~T
Barry A. Lindahl
Page Two
April 28, 2003
Finally, under Section 7, the Act takes effect upon enactment. This Act was signed
by the governor on April 11.2003.
It is apparently the case that Kwik Stop now has a choice between a $1,500.00
penalty, or a 30 day license suspension.
It is Kwik Stop's desire to pay the $1,500.00 penalty.
in addition to enclosing a copy of the Senate File, I am enclosing an e-mail from
Assistant Attorney General Donn Stanley dated April 18, 2003 to Dawn Carlson, Vice-
President, Petroleum Workers of Iowa. In this e-mail, Assistant Attorney General Stanley
makes it clear that the new penalties apply retroactively and a fine can be substituted for
the suspension. ^ retailer cannot use the affirmative defense of training employees as a
defense, however.
Please call me when you get ba~k, Barry, If you are in agreement as to the status
of the law heading into Monday's hearing, pertmps the matter can be handled without the
necessity of my appearance on behalf of Kwik Stop.
Thank you very much.
AFG/jdh
Enclosure
Sincerely, .,~
Arthur F. Gilloon
Klm B. Wadding, Police Chief
Michael C. Van Milligen, City Manager
Apr.28. 2003 4:47PM
Senate File 401
BARRY A LINDAHL, ESQ~IGHT MM
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Apr.2S. 2003: 4:4BPM BARRY A LINDAiNL, ESQRIBHT HRI'd
ss~No.0696~6 P.
VEAS3:ON
leaST, a ~oTity cf countieS,
Sec, 3, S~ioA ~3k,22, svbSectiun 2, Code ~003, is
follow~:
civil ~lty tn tb~ ~n~ of three hundred dollars. ~allUr~
~o pay t~ dvtl pen~!ty
pert~ of fourteen dayS.
. ~ For a sec~ violation wtthl~ a perl~ uf t~ ye)rs,
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04/02/2OO3
Apr.28, 2003; 4:48PM BARRY A LINDAHL, ESQRI6FFF )-~qM
4 ~ ~evelo,~d b~~ k ~tai~.r m~ assert ~ly once In e
4 5 v~¢atlon of ~ect~CA 453A.2. ~at tares pl~C~ at th~
~ ? S{c. 5. i~PLICA)ILI~ p~VISION5.
q 8 !, ~t~h~t~ ........ ,t~n 4~A2, ~ub~e~l~
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thstandinO section ~3A.~, subsection 2. Code
4 1: s~bsect~n . ~ ..... ~=ile~ or ~n ~p]o~e or e , {
- ,= ~3A ~ s~SeC~on ~, u~. '"7 ....... ~ Of this Ac;
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~ Z~ ~c~, is r~al~ one ye~_~ro~e,~'+'~i.~ ~e~d
4 ~3 i~lale t~r~e, takes effect u~ en;C~n~'
~ 25 uf/:c/26
pag&3 of 3
~:~/c~ce~eq~s.$t~t~j~us/C~°~-/~fau~s~?~teg~rY~Ratt&$¢~v~ce--~i~&~`~ 04/02/20C
Apr.28, 2003: 4:48PM BARRY A LINDARL, ESQRz~HT
..... Oriq i~al Message
Da: April 1~,
PleaSe find below an overvizw of the new ~%ail =~bac=o law 8nd speC£~!e
cr other tobacco
Yo~
Apr.28, 2003 4:£9PM
BARRY A LiNDABL, ESQ~TSHT
s63 No,0696~ P.
violm~ion.
time, ~iy the A~D authori~e~ progr~ will .~alify. Either
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