HF 432 (LSB 1981YH (10) 85)

HOUSE FILE 432

BY  FISHER and FORBES

A BILL FOR

An Act prohibiting the underage sale, consumption, or possession of energy drinks, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  127.1  Definitions.
   For purposes of this chapter, unless the context otherwise requires:
   1.  “Employee” means any employee, contract employee, or agent of a retailer.
   2.  “Energy drink” means a beverage that exceeds a caffeine or other methylxanthine content of ten milligrams per ounce and is classified as a dietary supplement by the federal food and drug administration.
   3.  “Retailer” means a person or business entity engaged in this state in the business of selling energy drinks on a retail basis.
    Sec. 2.  NEW SECTION.  127.2  Energy drinks —— persons under legal age.
   1.  A person shall not sell, give, or otherwise supply an energy drink to any person under eighteen years of age.
   2.  A person under eighteen years of age shall not consume or possess with the intent to consume an energy drink.
   3.  Possession of an energy drink by an individual under eighteen years of age does not constitute a violation under this section if the individual under eighteen years of age possesses the energy drink as part of the individual’s employment and the individual is employed by a person who offers for sale or sells energy drinks.
   4.
  a.  A person shall not be guilty of a violation of this section if conduct that would otherwise constitute a violation is performed to assess compliance with this section if any of the following applies:
   (1)  The compliance effort is conducted by or under the supervision of law enforcement officers.
   (2)  The compliance effort is conducted with the advance knowledge of law enforcement officers and reasonable measures are adopted by those conducting the effort to ensure that consumption of energy drinks by individuals under eighteen years of age does not result from participation by any individual under eighteen years of age in the compliance effort.
   b.  For the purposes of this subsection, “law enforcement officer” means a peace officer as defined in section 801.4 and includes persons designated under section 127.3, subsection 5 to enforce this section.
    Sec. 3.  NEW SECTION.  127.3  Penalties.
   1.  A person, other than a retailer or employee of a retailer, who violates section 127.2, subsection 1, commits a simple misdemeanor.
   2.  An employee of a retailer who violates section 127.2, subsection 1, commits a simple misdemeanor punishable as a scheduled violation under section 805.8C, subsection 10, paragraph “a”.
   3.  A retailer who violates section 127.2, subsection 1, or a retailer whose employee violates section 127.2, subsection 1, shall be assessed a civil penalty upon hearing and notice as provided in subsection 5 as follows:
   a.  If the violation is a first offense, the retailer shall be assessed a civil penalty in the amount of three hundred dollars.
   b.  If the violation is a second offense, the retailer shall be assessed a civil penalty in the amount of one thousand five hundred dollars.
   c.  If the violation is a third offense, the retailer shall be assessed a civil penalty in the amount of one thousand five hundred dollars and may be prohibited from selling energy drinks for a period of up to thirty days.
   d.  If the violation is a fourth offense, the retailer shall be assessed a civil penalty in the amount of one thousand five hundred dollars and may be prohibited from selling energy drinks for a period of up to sixty days.
   e.  If the violation is a fifth or subsequent offense, the retailer shall be assessed a civil penalty in the amount of one thousand five hundred dollars and shall be prohibited from selling energy drinks for a period of three years from the date of the assessment of the civil penalty.
   4.  A person who violates section 127.2, subsection 2, is subject to the following, as applicable:
   a.  A civil penalty pursuant to section 805.8C, subsection 10, paragraph “b”. Notwithstanding section 602.8106 or any other provision to the contrary, any civil penalty paid under this subsection shall be retained by the city or county enforcing the violation.
   b.  If the violation is a first offense, performance of eight hours of community work requirements, unless waived by the court.
   c.  If the violation is a second offense, performance of twelve hours of community work requirements.
   d.  If the violation is a third or subsequent offense, performance of sixteen hours of community work requirements. 
   5.  A city or a county may enforce this section. In the event of a violation of subsection 3, a retailer shall be provided an opportunity to be heard upon ten days’ written notice by restricted certified mail stating the alleged violation and the time and place at which the retailer may appear and be heard. A city or county taking legal action under this section shall report violations and penalties imposed to the department of public safety within thirty days of the penalty being assessed. A civil penalty assessed against a retailer shall be collected by the clerk of the district court and shall be distributed as provided in section 602.8105, subsection 4.
    Sec. 4.  NEW SECTION.  127.4  Seizure of false or altered driver’s license or nonoperator’s identification card.
   If a retailer or an employee of a retailer has a reasonable belief based on factual evidence that a driver’s license as defined in section 321.1, subsection 20A, or nonoperator’s identification card issued pursuant to section 321.190 offered by a person who wishes to purchase an energy drink is altered or falsified or belongs to another person, the retailer or employee may retain the driver’s license or nonoperator’s identification card. The provisions of section 453A.4 with regard to the procedures used by permittees under chapter 453A, or employees thereof, for the retention and reporting of false or altered driver’s licenses or nonoperator’s identification cards shall apply to the retention of a driver’s license or nonoperator’s identification card pursuant to this section.
    Sec. 5.  Section 602.8105, subsection 4, Code 2013, is amended to read as follows:
   4.  The clerk of the district court shall collect a civil penalty assessed against a retailer pursuant to section 126.23B
 
or section 127.3. Any moneys collected from the civil penalty shall be distributed to the city or county that brought the enforcement action for a violation of section 126.23A
 
or section 127.2.
    Sec. 6.  Section 805.8C, Code 2013, is amended by adding the following new subsection:
   NEW SUBSECTION.  10.  Energy drink violations.
   a.  For violations of section 127.2, subsection 1, by an employee of a retailer, the scheduled fine is as follows:
   (1)  If the violation is a first offense, the scheduled fine is one hundred dollars.
   (2)  If the violation is a second offense, the scheduled fine is two hundred fifty dollars.
   (3)  If the violation is a third or subsequent offense, the scheduled fine is five hundred dollars.
   b.  For violations of section 127.2, subsection 2, the scheduled fine is as follows and is a civil penalty, and the criminal penalty surcharge under section 911.1 shall not be added to the penalty, and the court costs pursuant to section 805.9, subsection 6, shall not be imposed:
   (1)  If the violation is a first offense, the scheduled fine is fifty dollars.
   (2)  If the violation is a second offense, the scheduled fine is one hundred dollars.
   (3)  If the violation is a third or subsequent offense, the scheduled fine is two hundred fifty dollars.
EXPLANATION
   This bill prohibits the sale to, or consumption or possession of energy drinks by, persons under 18 years of age. The bill defines an “energy drink” to mean a beverage that exceeds a caffeine or other methylxanthine content of 10 milligrams per ounce and that is classified as a dietary supplement by the federal food and drug administration.
   The bill provides that a person shall not sell, give, or otherwise supply an energy drink to any person under 18 years of age, and that a person under 18 years of age shall not consume or possess with the intent to consume an energy drink. The bill states that possession of an energy drink by an individual under 18 years of age does not constitute a violation if the individual under eighteen years of age possesses the energy drink pursuant to their employment and the individual is employed by a person who offers for sale or sells energy drinks. The bill provides that a person shall not be guilty of a violation if conduct that would otherwise constitute a violation is performed to assess compliance with the bill’s provisions.
   The bill provides that if a person other than a retailer or employee of a retailer sells, gives, or supplies an energy drink to a person under 18, the person is guilty of a simple misdemeanor. A simple misdemeanor is punishable by confinement for no more than 30 days or a fine of at least $65 but not more than $625 or by both. The bill provides that such actions by an employee of a retailer constitute a simple misdemeanor punishable by a scheduled fine of $100 for a first offense, $250 for a second offense, and $500 for a third or subsequent offense. The bill provides that a retailer who engages in such actions, or whose employee engages in such actions, shall be subject to a civil penalty of $300 for a first offense, $1,500 for a second offense, $1,500 and a prohibition from selling energy drinks for up to 30 days for a third offense, $1,500 and a prohibition from selling energy drinks for up to 60 days for a fourth offense, and $1,500 and a mandatory prohibition from selling energy drinks for three years following the date of assessment of the civil penalty for a fifth or subsequent offense.
   The bill provides that if a person under 18 years of age possesses or consumes an energy drink, they are subject to a scheduled violation civil penalty of $50 for a first offense, $100 for a second offense, and $250 for a third or subsequent offense. The person shall also be subject to eight hours of community work requirements unless waived by the court for a first offense, 12 hours for a second offense, and 16 hours for a third or subsequent offense.
   The bill authorizes a city or county to enforce the bill’s provisions, and directs a city or county to report violations and penalties to the department of public safety within 30 days of the penalty being assessed. With regard to violations by a retailer or a retailer whose employee commits a violation, the bill specifies that the retailer shall be provided an opportunity to be heard upon 10 days’ written notice by restricted certified mail stating the alleged violation and the time and place at which the retailer may appear and be heard. The bill specifies that civil penalties assessed against a retailer shall be collected by the clerk of the district court and distributed to the city or county that brought the enforcement action.
   Additionally, the bill specifies procedures for the retention of a driver’s license or nonoperator’s identification card by a retailer or an employee of a retailer if they have a reasonable belief based on factual evidence that the license or card offered by a person who wishes to purchase an energy drink is altered or falsified or belongs to another person.