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Home My WebLink AboutA015 - Letter from Assistant City Attorney - procedural outline for smoking compliance 7 / 6 o Aro -,,-& d D-cL- as City Attorney's Office Coring People 515 Clark Avenue,P. O.Box 811 Quality Programs Ames,IA 50010 Excepnona!Service Phone: 515-239-5146 0 Fax: 515-239-5142 December 20, 1999 j d; L rr i 7 1999 The Honorable Ted Tedesco,Mayor, and Members of the City Council - CIl�9 GLC-.kA , of the City of Ames,Iowa CITY OF A1ES,fii;`!A Re: Process for Underage Tobacco Sales Administrative Enforcement Dear Mayor Tedesco and Council Members: You had requested a procedural outline for underage smoking compliance. The procedure is as follows: 1. The process will be initiated by the police when they conduct compliance checks. When violations (sales to an underage person) occur, a criminal citation will be issued to the employee who made the sale. 2. The criminal prosecution will be done by the County Attorney's office,but the City legal staff will track the case once it is filed with the Court so that we are aware at the earliest time of when a case has resulted in a conviction or guilty plea. 3. Upon conviction or a guilty plea by the employee, the City Legal Department will file a hearing complaint with the City Council, requesting that a hearing date be set and notice furnished to the licensee so that the licensee has notice and an opportunity to be heard concerning the imposition of administrative sanctions. 4. The City Council will set a hearing date,and notice of the date and the alleged violation will be provided to the licensee in advance of that date. 5. At the date and time set for the hearing,City legal staff will present evidence to establish the violation and request imposition of sanctions. The licensee will be given an opportunity to present evidence and also make recommendation as to the allegations. 6. The Council will then determine if a violation has been shown, and if shown, proceed to imposition of the sanctions set by state law for the violation. Very truly yours, Lli�1.Y J dy K. Parks Assistant City Attorney JKP:gmw � Memo City Attorney's Office a Caring People Quality Programs Exceptional Service TO: Steve Schainker, City Manager Ted Tedesco, Mayor Members of the Ames City Council FROM: Judy K. Parks, Assistant City Attorne DATE: October 22, 1999 SUBJECT: Report on Underage Tobacco Access Restrictions and Penalty Mechanisms You have requested information on the federal law restricting tobacco sales to underage persons(the "Synar Amendment"),retailer compliance checks,consequences for high non-compliance levels and enforcement options at the local level against those who violate tobacco access laws. By way of background, the Synar Amendment is a 1992 Federal law aimed at decreasing access to tobacco products among those not yet 18 years of age(See §1926 of the Public Health Service Act). This law required states to pass laws restricting sales and access to those under 18, and to conduct unannounced random inspections (compliance checks) of tobacco sellers for the state to be eligible for substance abuse prevention and treatment block grants (SAPT). If a state fails to meet it's target rate of compliance, it could lose a portion of its SAPT block grant funds. In Iowa, pursuant to the federal initiatives, laws were passed which stepped up the restrictions on access to those under 18, in addition to laws already present prohibiting possession by or sales/supplying to those under 18. Iowa also participates in the compliance check program. The Federal Food and Drug Administration has contracted with the Iowa Department of Public Health (IDPH) to perform compliance checks, and IDPH in turn provides grant funds to local law enforcement to conduct these. The results are reported to the FDA. Iowa's target compliance rates are 30% for FY98, 25% for FY99 and 20% for FY2000. Since these target rates have not been met in Iowa, it faces a loss of block grant funds. Given that background, the other issue of interest is the enforcement mechanisms available for violation of the underage sales restrictions. The first point to keep in mind is that there are separate civil penalty procedures and criminal penalty options which can be imposed additively or independently of one another. In the criminal arena, the Iowa law provides for charging the individual who made the sale or supplied to the underage person with a violation of Sec. 453A.2(1), Code of Iowa, a simple misdemeanor. The individual charged would have the right to a criminal trial, but could receive a fine of up to $500 and/or up to 30 days in jail. These proceedings would all be handled in the District Associate Court. On the civil side, the retailer or holder of the license is held responsible for the violation. For violating its rules, the FDA has authority to issue penalties to the retailer ranging from a warning letter for a first offense up into the thousands of dollars for repeated offenses. The FDA's procedures involve initiation of administrative proceedings before a federal administrative law judge. The City Council would not be involved. Additionally, under Iowa law (found at Iowa Code Chapter 453), there are provisions which authorize the imposition of civil penalties up to and including revocation of a cigarette permit, for violating state laws prohibiting sales to underage persons. The IDPH, a county health department, city health department or a city may initiate these proceedings before a permit issuing authority. (See Iowa Code§453A.2(3)). Permit issuing authorities are the Iowa Department of Revenue,which has authority to issue permits to cigarette wholesalers, distributors, vendors and retailers, and cities and counties, which may issue retail permits within their corporate boundaries. (See Iowa Code §453A.13(2)(a). In Ames,the City has undertaken to exercise its permit issuing authority. The City Clerk issues the permit upon proper and complete application. When an administrative penalty proceeding is initiated before a permit issuing authority, the permit holder must be given notice and an opportunity to be heard. (See Iowa Code §453A.22). If, after hearing, it is found that a violation has occurred, there is a schedule of penalties which shall be assessed, ranging from $300 for a first offense, 30 days suspension for second offense, 60 days suspension for a third offense, and up to permanent revocation for a fourth offense in five years (see Iowa Code §453A.22(2)). The City's procedural options for initiating civil penalty proceedings against the permit holder are: 1. to initiate civil administrative proceeding and hold hearings for imposition of civil penalties; or 2. to allow the IDPH or other initiating authority to initiate civil administrative proceedings before City Council and when they do, hold hearings based on those complaints for imposition of civil penalties; or 3. cease exercising the local authority to issue permits, with the effect that administrative hearings for violations would then be held before the Iowa Department of Revenue, as the issuing authority. Those could still be initiated by the City. 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