HomeMy WebLinkAboutA006 - Report from Assistant City Attorney on Underage Tobacco Access Restrictions and Penalties D�
Memo
City Attorney's Office
Caring People
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TO: Steve Schainker, City Manager
Ted Tedesco, Mayor
Members of the Ames City Council
FROM: Judy K. Parks, Assistant City Attorney'42
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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