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Tobacco Compliance Civil PenaltiesDubu ue THE CTTY OF q ~~• L~UB E ~~.'~~~~ Mr~sterpiecc an tl~e Mississippi 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Tobacco Compliance -Civil Penalty for Tobacco Permit Holders DATE: December 13, 2007 Chief of Police Kim Wadding is recommending approval of the Acknowledgment/ Settlement Agreements accepting the tobacco compliance violation for tobacco permit holders, which includes Casey's General Store, 4003 Peru Road; Kwik Stop, 2390 Central Avenue; and Key West Conoco, 2150 Twin Valley Drive. Hartig Drug Company at 2225 Central Avenue is allowed by State law to use an affirmative defense option because their employee holds a valid Certificate of Completion of the Tobacco Compliance Employee Training Program. Chief of Police Kim Wadding is recommending the City Council acknowledge the exercise of the affirmative defense for Hartig Drug Company. AWN Stop Mart intends to have a hearing on their violation at 1401 Central Avenue. I concur with the recommendations and respectfully request that the Mayor and City Council approve those recommendations and set a hearing date for AWN Stop Mart. / ~G G C Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Kim B. Wadding, Chief of Police TI-iE CITY OF ~~-UB~ CJE r____.. __.__.... Masterpiece on the Mississippi DATE: December 10, 2007 MEMORANDUM TO: Michael C. Van Milligen City Manager FROM: Kim B. Wadding Police Chief RE: Tobacco Compliance -Civil Penalty for Tobacco Permit Holders INTRODUCTION: The purpose of this memorandum is to administer a first tobacco compliance violation civil penalty to Casey's General Store, 4003 Peru Road; Kwik Stop, 2390 Central Avenue; Key West Conoco, 2150 Twin Valley Drive; AWN Stop Mart #2, 1401 Central Avenue; and a third tobacco compliance violation to Hartig Drug Company, 2225 Central Avenue regarding violation of Iowa code § 453A.22 (2). 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 employ underage youth supervised by Dubuque Police Officers to confirm area businesses are not selling tobacco products to underage persons. The compliance check consists of the following: 1) An underage youth working with Dubuque Police Officers enters the permit holder business and requests the purchase of a pack of cigarettes or some type of smokeless tobacco. 2) The underage youth remains under direct supervision during the compliance check by the accompanying officers. 3) If asked, the underage youth is instructed to show their true underage identification to the employee/clerk. Additionally, the underage youth is instructed to truthfully answer all questions asked by the employee/clerk. 4) If a purchase is made, the youth leaves the business and meets with the officers at a predetermined location where an accounting of the purchase is completed. 5) Once the youth is away from the business, the investigating officer approaches the clerk, identifies him or herself and completes the investigation. In most cases this results in issuing a citation for selling tobacco products to an underage youth. 6) Once the clerk/employee has been cited, the officer attempts to contact the manager or owner telling them of the violation and the possible civil penalties. 7) Upon conclusion of the criminal disposition resulting in a guilty plea or conviction, initiation of the civil penalty to the business permit holder begins. The business permit holder civil penalty includes: cco Compliance Civil. Penalties -Iowa Code 453A.22 (a) 1st Violation: $300 fine (b) 2"~ Violation witl~inn 2 years: $1,500 fine or 30-day suspension {c) 3`~ Violation within 3 years. $1,500 fiine and 30~1ay suspension (d) 4t" Violation within 3 years: $1,50a fine and 60-day suspension fie) 5t" Violation within 4 years: Revocation DISCUSSION: When a tobacco compliance violation occurs and renders a guilty plea, the business holding the tobacco permit receives notice by certified mail of the violation. The notice includes notification of the allegation, a hearing complaint with court documentation of the plea, and an Acknowledgement/Settlement Agreement. The Acknowledgement/Settlement Agreement allows the permit holder to settle the matter prior to a formalized hearing. If the permit holder wishes to decline the public hearing, the permit holder acknowledges the violation, signs and returns the Acknowledgment/Settlement Agreement along with the appropriate fine payment. The following permit holders have received notification by certified mail of a tobacco compliance violation with a scheduled hearing date of December 17, 2007 at 6:30 P.M. before the City Council. If agreement is achieved, the Acknowledgment/Settlement Agreement is returned with payment and the hearing is cancelled. Offense Violation 15 Violation Bate August 16, 2007 Business Casey's General Store Address 4003 Peru Road Employee Timothy M. Jelinek 1S September 20, 2007 Kwik Stop 2390 Central Avenue David Denlinger 1S October 2, 2007 Key West Conoco 2150 Twin Valley Drive Amanda Reuter 1S October 4, 2007 AWN Stop Mart 1401 Central Avenue Viola O'Meara 3~ September 20, 2007 Hartig Drug Company 2225 Central Avenue Sally Wernimont Acknowledgement/Settlement Agreements agreeing with the violation and submitting payment have been received from Casey's General Store, Kwik Stop, and Key West Conoco. AWN Stop Mart #2, owner Waseem Choudry, reports he intends to be present at the hearing December 17, 2007. . Regarding the third offense for Hartig Drug Company, Vice-President John Meyer, has submitted a request to use the affirmative defense option as allowed by Iowa Code § 453A.22 (3). Iowa Code § 453A.22(3) provides that, "If an employee of a retailer violates section 453A.2, subsection 1, the retailer shall not be assessed a penalty under subsection 2, and the violation shall be deemed not to be a violation of section 453A.2, subsection 1, for the purpose of determining the number of violations for which a penalty may be assessed pursuant to subsection 2, if the employee holds a valid certificate of completion of the tobacco compliance employee training program pursuant to section 453A.5 at the time of the violation. A retailer may assert only once in a four-year period the bar under this subsection against assessment of a penalty pursuant to subsection 2, for a violation of section 453A.2, that takes place at the same place of business location." In this incident, the violation did occur in the same place of business and Sally Wernimont, the employee, did possess at the time of the violation a valid certificate of tobacco compliance training as require by Iowa code § 453A.5. RECOMMENDATION: It is recommended the City Council accept and approve the attached Acknowledgement/ Settlement Agreements for a first violation for Casey's General Store, 4003 Peru Road; Kwik Stop, 2390 Central Avenue; and Key West Conoco, 2150 Twin Valley Drive. It is further recommended to hold a hearing for AWN Stop Mart, 1401 Central Avenue regarding the 1St civil violation and to acknowledge the exercise of the affirmative defense for Hartig Drug Company concerning their third violation occurring September 20, 2007. ACTION REQUESTED: We request City Council consideration to accept, approve and sign the attached order accepting the Acknowledgement/Settlement Agreements for a first tobacco compliance violation for Casey's General Store, 4003 Peru Road; Kwik Stop, 2390 Central Avenue; and Key West Conoco, 2150 Twin Valley Drive. It is further requested to hold a hearing for AWN Stop Mart, 1401 Central Avenue regarding their 1St civil tobacco compliance violation and acknowledge the exercise of the affirmative defense option regarding the third violation for Hartig Drug Company occurring September 20, 2007. Cc: Barry Lindahl, Corporation Attorney Cindy Steinhauser, Assistant City Manager Jeanne Schneider, City Clerk TOBACCO COMPLIANCE ACCEPTANCE ACKNOWLEDGMENT/SETTLEMENT AGREEMENT 1ST VIOLATION BEFORE THE DUBUQUE CITY COUNCIL IN RE: Casey's General Store 4003 Peru Road Dubuque, IA 52001-8609 Casey's Marketing Company P.O. Box 3001 Ankeny, Iowa 50021-8045 ORDER ACCEPTING ACKNOWLEDGMENT/SETTLEMENT AGREEMENT FIRST VIOLATION On this 17th day of December, 2007 in lieu of a public hearing on the matter, the Dubuque City Council approves the attached Acknowledgement/Settlement Agreement between the above-captioned permittee and the City of Dubuque. THEREFORE, the Dubuque City Council, FINDS that the above captioned permittee has remitted to the City of Dubuque a civil penalty in the amount of three hundred dollars ($300.00). Be advised that this sanction will count as a first violation of Iowa Code 453A.2(1), pursuant to Iowa Code section 453A.22(2)(a). IT IS THEREFORE ORDERED that the judgment in this matter is hereby satisfied. PASSED AND APPROVED this 17th day of December 2007. Roy D. Buol, Mayor Attest: Jeanne Schneider, CMC, City Clerk TOBACCO COMPLIANCE ACCEPTANCE ACKNOWLEDGMENT/SETTLEMENT AGREEMENT 1St VIOLATION BEFORE THE DUBUQUE CITY COUNCIL IN RE: Kwik Stop 2390 Central Avenue Dubuque, IA 52001 Rainbow Oil Company P.O. Box 768 Dubuque, Iowa 52004-0768 ORDER ACCEPTING ACKNOWLEDGMENT/SETTLEMENT AGREEMENT FIRST VIOLATION On this 17th day of December, 2007 in lieu of a public hearing on the matter, the Dubuque City Council approves the attached Acknowledgement/Settlement Agreement between the above-captioned permittee and the City of Dubuque. THEREFORE, the Dubuque City Council, FINDS that the above captioned permittee has remitted to the City of Dubuque a civil penalty in the amount of three hundred dollars ($300.00). Be advised that this sanction will count as a first violation of Iowa Code 453A.2(1), pursuant to Iowa Code section 453A.22(2)(a). IT IS THEREFORE ORDERED that the judgment in this matter is hereby satisfied. PASSED AND APPROVED this%~ day of December 2007. Roy D. Boul, Mayor Attest: Jeanne Schneider, CMC, City Clerk TOBACCO COMPLIANCE ACCEPTANCE ACKNOWLEDGMENT/SETTLEMENT AGREEMENT 1St VIOLATION BEFORE THE DUBUQUE CITY COUNCIL IN RE: Key West Conoco 2150 Twin Valley Drive Dubuque, IA 52003-7983 Rainbow Oil .Company P.O. Box 768 Dubuque, Iowa 52004-0768 : ORDER ACCEPTING ACKNOWLEDGMENT/SETTLEMENT AGREEMENT FIRST VIOLATION On this 17th day of December, 2007 in lieu of a public hearing on the matter, the Dubuque City Council approves the attached Acknowledgement/Settlement Agreement between the above-captioned permittee and the City of Dubuque. THEREFORE, the Dubuque City Council, FINDS that the above captioned permittee has remitted to the City of Dubuque a civil penalty in the amount of three hundred dollars ($300.00). Be advised that this sanction will count as a first violation of Iowa Code 453A.2(1), pursuant to Iowa Code section 453A.22(2)(a). IT IS THEREFORE ORDERED that the judgment in this matter is hereby satisfied. PASSED AND APPROVED this 17th day of December 2007. Roy Buol, Mayor Attest: Jeanne Schneider, CMC, City Clerk TOBACCO COMPLIANCE COMPLAINT 1sT VIOLATION IN RE: AWN Stop Mart #2 1401 Central Avenue Dubuque,lA 52001-4853 AWN Stop Mart 1401 Central Avenue Dubuque, Iowa 52001 X853 HEARING COMPLAINT The City of Dubuque hereby makes the following complaint against the above- named permittee. 1. Iowa Code section 453A.2(1) provides that a person shall not "sell, give or otherwise supply any tobacco, tobacco products, or cigarettes to any person under eighteen years of age." 2. Iowa Code section 453A.22(2)(a) provides that if a permit holder or employee of a permit holder has violated Iowa Code section 453A.2(1), the permit holder shall be assessed a civil penalty of three hundred dollars ($300.00) for a first violation of Iowa Code section 453A.2(1). 3. On or about 10/4/2007, the permittee or an employee of the permittee sold cigarettes or tobacco products to a person under eighteen years of age. A copy of the Compliance Check or Criminal Conviction is attached and incorporated herein. 4. Therefore, in accordance with Iowa law, the City of Dubuque requests the Dubuque City Council find a violation of the above-referenced sections of Iowa Code chapter 453A and assess a civil penalty in the amount of three hundred dollars ($300,,00) against AWN Stop Mart #2 1401 Central Avenue Dubuque, IA 52001-4853. Kim B. Wadding, Police Chid Dubuque Police Department 770 Iowa Street Dubuque, IA 52002 (563) 589-4411 OPll _1a4-12-96 Cllacges Chflrges, Dispositions, Sentences Title: STATE vs. OMEARA, VIOLA MARY Case: 0131 i STWE722473 (DUBUQUE) Uefeud~nt: OMEARA, VIOLA MARY Count_Ol Charge Chflrge: 453A.2(1)-C Offense Date: 10/04/2007 Adjudication Charge: 453A.2(1)-C Adj : GUILTY - NEGOTIATED/VOLUN PLEA Adj.Judge: , Comments: Seutet-ce Chflrge: 453A.2(1)-C Senleuce 10/19/2007 Date: Appefll: Fflcility Type: Restitution: Lic.lievuked: t agc ~ vi ~ Uescl•iptiolt• 1ST OFFENSE -EMPLOYEE PROVIDING TOBACCO TO ' MINOR Arrest Date: Against Type: Descr[ption: 1ST OFFENSE - EMPLOYEE PROVIDING TOBACCO TO MINOR Adj.Date: 10/19/2007 Uescriptivlt: 1ST OFFENSE - EMPLOYEE PROVIDING TOBACCO TO M[NOR Sentence: FINE SeaJutlge: , Attorney: llrug: DllS: CYtrfl(11t1011: Bitterer: http://www.iowacourts.state.ia.usJESAWebApp/TViewCharges?froinPrintecFcienc{lyPage=yes 1)/1/2007 F• financials I' IIIAlIC1915 't'itle: STATE vs. OMEARA, VIOLA MARY Case: 01311 STWE722473 (DUBUQUE) Su»»n~i-y COSTS FINE SURCHARGE RESTITUTION OTHER SUPPORT/ALIMONY llelail Payoe/ OUlgor/ _.... _. Payee Q~ligee 0-•g t1~l~ount r n~c ~ v~ t Orig Paid Due 50.00 50.00 0.00 100.00 100.00 0.00 32.00 32.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 $182.00 N/A $182.00 O.OU $0.00 N/A Ya a,l~ou,~t nave Receipt ~~Xl?e http:!/www.iowacourts.state-ia.us/ESAWebAppi'I'ViewFillancials?fcomPrinterFriendlyPage=yes 11/1/2007 TOBACCO COMPLIANCE ACKNOWLEDGMENT OF AFFIRMATIVE DEFENSE 1ST VIOLATION BEFORE THE DUBUQUE CITY COUNCIL IN RE: Hartig Drug Company 2225 Central Avenue Dubuque, IA 52001-3506 Hartig Drug Company, tnc. 703 Main S#reet Dubuque, Iowa 52004-0709 ACKNOWLEDGMENT OF AFFIRMATIVE DEFENSE THIRD VIOLATION An employee of the above-named permittee has been charged with a violation of Iowa Code § 453A.2(1). The permittee has asserted the affirmative defense in § 453A.2(3). Iowa Code § 453A.22(3) provides that, "If an employee of a retailer violates section 453A.2, subsection 1, the retailer shall not be assessed a penalty under subsection 2, and the violation shall be deemed not to be a violation of section 453A.2, subsection 1, for the purpose of determining the number of violations for which a penalty may be assessed pursuant to subsection 2, if the employee holds a valid certificate of completion of the tobacco compliance employee training program pursuant to section 453A.5 at the time of the violation. A retailer may assert only once in a four- year period the bar under this subsection against assessment of a penalty pursuant to subsection 2, for a violation of section 453A.2, that takes place at the same place of business location." The City Council finds as follows: (1) The employee held a valid certificate of completion of the tobacco compliance employee training program pursuant to Iowa Code § 453A.5 at the time of the violation. (2) The permittee has not asserted the defense in § 453A.2(3) in .the preceding afour-year period for a violation of § 453A.2(2), that took place at the same place of business location." Therefore,. the permittee shall not be assessed a pena~ty under Iowa Lode § 453A.2(2), and the violation shall be deemed not to be a violation of Iowa Code § 453A.2(1), for the purpose of determining the number of violations for which a penalty may be assessed pursuant to Iowa Code § 453A.2(2). PASSED AND APPROVED this 17th day of December 2007. Roy D. Boul, Mayor Attest Jeanne Schneider, CMC, City Clerk Roy D. Boul, Mayor Attest: Jeanne Schneider, CMC, City Clerk DEC-10-2007 MON 03 51 PM CORP LOWER LEVEL FAX N0. P. 02 ~~~~ ~r~$ 703 Main Strcct Dubuquc, liA 52004-0709 Phonc: (5G3) 588-8700, L?xt 221 Fax: (SG3) 588-8750 o-snail: -1t[~t{iJI,O~j I ' a harl~ctrug~c~tn 1)cccmher 10, 2007 1'olicc Cllicf Kim 13. Watldinb Cpl. Stcve Fustvc~lt 1)Ul)lIC1L1G 1~011Gtl l7t'11itYt111Cnt l .tiw l~tlf01'CCn1C11t CC11tEr 770 Iowa Strcct P.Q. Rox X75 1)uhuquc, IA 520-1~-0$75 R~; Aflirnlativc 1)cfensc-- C;aSe tI07-41170 F~mhloycc Sally K;ty Wcrllilnont }{artig i)rug C'ampslny, Ccntr:ll Avcitue H;irti8 nrub Company would like to apply the Affirmative Defense resardinb the Civil 1'c~lalty in the ~bclve referenced case. IC you need additional information, nleasc feel free to contact 111e. 'i'llnnl: y~~u. 1 nCsCrl!l~/, 1:^r .~.r Je}in Mc;ycr Vice President of Store Chcr~ttiotts Il;u-ti~; Drub Conipally Page 1 of 1 State of Iowa Alcoholic Beverages Division Training Certificate Presented to Sall ~i~e~n im on t Y As a participant in the Iowa Pledge Retailer Training Program and for partnering with the Iowa Alcoholic Beverages Division to not sell tobacco products to Iowa's kids Dated September 30, 3005 Expires Expires September 30, ?007 r; 'f. ,, 1, !, ,~ ~~ / r ~` ~,! cJY t Lynn M. Walding, Administrator httn•//innrn in~uaahri ~nm/rnntrnllar/inncn/cPrtifinatinn/ePrnra/n,,;v/~A,-f;f.•arA/~o,•+;~.-~rP hr 9/~