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Tobacco Compliance Civil Penalty_HyVee South Locust Street_PULLED Copyrighted November4, 2019 City of Dubuque Consent Items # 19. ITEM TITLE: Tobacco Compliance Civil PenaltyforTobacco License Holder— HyVee #1 SUMMARY: City Manager recommending approval of the AcknowledgemenUSettlement Agreement for a tobacco compliance violation for HyVee Store #1, 3500 Dodge Street. SUGGESTED DISPOSITION: Suggested Disposition: Receiveand File;Approve ATTACHMENTS: Description Type Hy-Vee#1 Tobacco Compliance Settlement City Manager Memo Agreement-MVM Memo Staff Memo Staff Memo Agreement Copy Staff Memo THE CITY OF 4 DUB Masterpiece on the Mississippi TO: Kevin Firnstahl City Clerk FR: Mark M. Da!sing Chief of Police Dubuque All Aw rica gitf 11I' 2007.2012.2013 2017*2019 RE: Hy -Vee #1 Tobacco Compliance Settlement Agreement Police Department Dubuque Law Enforcement Center 770 Iowa Street P.O. Box 875 Dubuque, IA 52004-0875 Office (563) 589-4410 Fax (563) 589-4497 TTY (563) 583-1711 E-mail: police@cityofdubuque.org www.cityofdubuque.org November 4, 2019 Hy -Vee #, located at 3500 Dodge Street, Dubuque, IA had an employee sell tobacco to an underage youth compliance monitor on December 21, 2018. Hy -Vee #1 arranged to forego a public hearing and instead submit to the statutory penalty as prescribed by a law - a $300 fine. The agreement to accept the penalty was scheduled for the November 4, 2019 City Council meeting as a Consent item. Corporate officials from Hy -Vee contacted the Dubuque Police Department the morning of November 4, 2019 and relayed that there was a miscommunication between corporate offices and management of Hy -Vee #1, and that the corporate offices would like to enter an "Affirmative Defense" rather than pay the fine. An Affirmative Defense in these situations is one where the defendant can use past employee training as proof that the business is working to prevent underage sales. I requested that you pull the item from the agenda while we work with Hy -Vee #1 to determine their eligibility to use the Affirmative Defense. If eligible, this item will not reappear on a future agenda. If ineligible, this item may appear on a future agenda. This memo is a follow-up confirmation of our earlier conversation. C': c CD (D N 1 0 !T1 Dubuque THE CITY OF � uI�AaMca cih DuB E � � I � � I Maste iece on the Mississi i Zoo�•zoiz•zois YP pp zoi�*zoi9 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Hy-Vee #1 Tobacco Compliance Settlement Agreement DATE: October 28, 2019 Chief of Police Mark Dalsing is recommending approval of the Tobacco Compliance Settlement Agreement with Hy-Vee #1, 3500 Dodge Street. I concur with the recommendation and respectfully request Mayor and City Council approval. v Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Mark M. Dalsing, Chief of Police "IHE CITY OF DUB E MEMORANDUM Masterpiece on tl2e Mississippi October 15, 2019 TO: Michael C. Van Milligen City Manager FR: Mark M. Dalsing Chief of Police RE: Settlement Agreement, Hy-Vee #1 INTRODUCTION This memo will detail the Tobacco Compliance settlement between the City of Dubuque and Hy-Vee #1 . BACKGROUND Hy-Vee #1 has a tobacco license for its establishment at 3500 Dodge Street in the City of Dubuque. On December 21 , 2018 the Dubuque Police Department did a tobacco compliance check and an employee sold tobacco to underage youth compliance monitors. Hy-Vee #1 has elected to forego a public hearing and will instead submit to statutory penalties prescribed by law. Hy-Vee #1 has agreed to a $300 fine for a first violation and has submitted payment to the Police Department. CONCLUSION & RECOMMENDATION The City Legal Department and the Police Department have reviewed the agreement and concur with the requirements. ACTION REQUESTED City Manager review, City Council approval, and Mayor Buol signature of the attached Acknowledgment/Settlement Agreement. cc: Crenna Brumwell 1 ACKNOWLEDGMENT/SETTLEMENT AGREEMENT Tobacco Compliance — 1St Violation RE: Hy-Vee #1 . Hy-Vee Inc. 3500 Dodge Street . 5820 Westown Pkwy Dubuque, IA 52003 . West Des Moines, IA 50266 I, � {�;r `ll�:}me"�� , on behalf of Hy-Vee #1, hereby knowingly and voluntarily acknowl dge that: a) Hy-Vee #1 received the notice regarding the above referenced case. b) Hy-Vee #1 admits that the facts and allegations contained in the Complaint, which is attached hereto and incorporated herein by reference, are true and correct. c) Hy-Vee #1 waives a hearing and submits to the statutory penalties prescribed by law. d) Hy-Vee #1 understands that this violation will count as an official "First Violation — Tobacco Compliance" of City of Dubuque Code of Ordinances Section 7-5A-15, pursuant to lowa Code §805.8C. Hy-Vee #1 has a tobacco permit for 3500 Dodge Street. Violation of the tobacco permit occurred as follows: Violation Date Violation Tvpe Violation Number December 21 , 2018 Tobacco Violation 15' Violation Under the foregoing lowa Code provisions, Hy-Vee #1 is subject a three hundred dollar ($300.00) fine. In accordance with lowa Code §805.8C, Hy-Vee #1 accepts the following penalty: a Three hundred doliar ($300.00) fine. H -Vee #1 r ,i. � /'__ _ �� Signature Signature ���BvZ J'Cc��11�Z�Y Name — Please Print Name — Please Print /C, lI- l9 Date Date NOTE This must be signed by an individual tobacco permittee, or in fhe case of another buslness enfity, by individual(s) who have authority to bind the entlty. THEREFORE, in lieu of a hearing, the City of Dubuque City Council hereby orders that the foregoing civil penalty has been remitted by Hy-Vee #1 to the City of Dubuque — Police Department. PASSED AND APPROVED this _ day of , 20 Roy D. Buol, Mayor Attest: Kevin Firnstahl, City Clerk