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
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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
~~~~
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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
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Lynn M. Walding, Administrator
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