HomeMy WebLinkAboutA026 - Legal Opinion dated April 6, 2000, local regulation 4L tit . -7-(-)(
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Aprril6, 2000 [
The Honorable Ted Tedesco, Mayor, APR — 6 2000 I
and Members of the City CouncilL�--
of the City of Ames, Iowa CITY CLERK
CITY OF AMES,Iowa
Re: Sale of Tobacco Products to Minors, Local Regulation
Dear Mayor Tedesco and Council Members:
This is in response to the request of the City Council for a legal opinion on whether the City could
enact regulations pertaining to sale of tobacco products to minors that would enable the City to retain
the proceeds of civil penalties assessed against violators.
The civil penalty that is imposed on the underage person who is found in possession of a tobacco
product in violation of Section 453A.2(2)is retained by the city or county enforcing the prohibition.
See Section 453A.3(2), Code of Iowa. However, that provision for local retention of the civil
penalty proceeds does not extend to civil penalties assessed under Section 453A.22, Code of Iowa,
against licensed tobacco product dealers who sell to a minor. The disposition of proceeds from
penalties assessed against licensed tobacco product dealers for selling to minors is controlled by
Section 453A.35. It states: "...penalties provided for under this chapter shall be credited to the
general fund of the state." So, to be able to retain those penalty proceeds locally, it has been
proposed that the City enact an ordinance to make the sale of tobacco products to a minor be a
municipal infraction. Penalties collected by the Court for municipal infractions are remitted to the
City. Sec. 364.22(6), Code of Iowa.
The proposal is legally feasible. Under State law, sale of tobacco to a minor is only a simple
misdemeanor. See Sections 453A.2(1) and 453A.3(1), Code of Iowa. Cities are able to charge as
a municipal infraction that which is only a simple misdemeanor under State law. See Section
364.22(3), Code of Iowa. The penalty for a municipal infraction can be set at any amount not to
exceed$500 for a first offense and not to exceed$750 for each repeat offense. Sec. 364.22(1), Code
of Iowa. Therefore, the City could enact an ordinance making it a municipal infraction for any
individual, firm,partnership, corporation, limited liability company or any other legal entity to sell,
give or otherwise supply any tobacco, tobacco products, or cigarettes to any person under eighteen
years of age,punishable by a penalty of$300 for the first offense, (to be consistent with subsection
453A.22(2)(a), Code of Iowa) and up to $750 for each and every repeat violation.
It is foreseeable that the validity of the ordinance might be challenged on the theory of irreconcilable
conflict with the legislative scheme established by Section 453A.22(2), Code of Iowa. However, it
can also be argued with equal force that the municipal infraction penalties of the City ordinance, and
the penalty and suspension provisions of the State law, can both operate without conflict. See:
Goodell v. Humbolt County, 575 N.W.2d 496 (Iowa 1998).
Yours truly,
John R. Klaus
City Attorney
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