Text: HSB00178 Text: HSB00180 Text: HSB00100 - HSB00199 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 DIVISION VI 1 2 CIGARETTE RETAIL PERMITS – VIOLATIONS 1 3 Section 1. NEW SECTION. 123.190 DEFINITIONS. 1 4 For the purpose of this division, unless the context 1 5 otherwise requires: 1 6 1. "Administrator" means the administrator of the 1 7 division, appointed pursuant to this chapter, or the 1 8 administrator's designee. 1 9 2. "Application" means a formal written request for the 1 10 issuance or a permit supported by a verified statement of 1 11 fact. 1 12 3. "Carton" means a box or container of any kind in which 1 13 ten or more packages or packs of cigarettes or tobacco 1 14 products are offered for sale, sold, or otherwise distributed 1 15 to consumers. 1 16 4. "Cigarette" means a roll for smoking made wholly or in 1 17 part of tobacco, or any substitute for tobacco, irrespective 1 18 of size or shape and irrespective of tobacco or any substitute 1 19 for tobacco being flavored, adulterated, or mixed with any 1 20 other ingredient, where such roll has a wrapper or cover made 1 21 of paper or any other material. "Cigarette" does not include 1 22 cigars. 1 23 5. "Cigarette vending machine" means a self-service device 1 24 offered for public use which, upon insertion of a coin, coins, 1 25 paper currency, or by other means, dispenses cigarettes or 1 26 tobacco products without the necessity or replenishing the 1 27 device between each vending operation. 1 28 6. "Cigarette vendor" means a person who by contract, 1 29 agreement, or ownership takes responsibility for furnishing, 1 30 installing, servicing, operating, or maintaining one or more 1 31 cigarette vending machines for the purpose of selling 1 32 cigarettes at retail. 1 33 7. "City" means a municipal corporation but not including 1 34 a county, township, school district, or any special purpose 1 35 district or authority. 2 1 8. "Commission" means the alcoholic beverages commission 2 2 established in this chapter. 2 3 9. "Distributing agent" means a person in this state who 2 4 acts as an agent of a manufacturer outside of the state by 2 5 storing cigarettes received in interstate commerce from the 2 6 manufacturer subject to distribution or delivery to a 2 7 distributor upon an order received by the manufacturer in 2 8 interstate commerce and transmitted to the distributing agent 2 9 for fulfillment from such place of storage. 2 10 10. "Distributor" means a person in this state who 2 11 manufactures or produces cigarettes or who ships, transports, 2 12 or imports into this state or in any manner acquires or 2 13 possesses cigarettes without stamps affixed for the purpose of 2 14 making a first sale of the cigarettes within the state. 2 15 11. "Division" means the alcoholic beverages division of 2 16 the department of commerce established by this chapter. 2 17 12. "First sale" means the first sale or distribution of 2 18 cigarettes in intrastate commerce, or the first use or 2 19 consumption of cigarettes within this state. 2 20 13. "Individual package of cigarettes" means a package of 2 21 cigarettes ordinarily sold at retail. 2 22 14. "Local authority" means the city council of a city in 2 23 this state, or the county board of supervisors of a county in 2 24 this state, which is empowered by this chapter to approve or 2 25 deny applications for retail cigarette permits; empowered to 2 26 recommend that such permits be granted and issued by the 2 27 division; and empowered to take other actions reserved to the 2 28 city council or county board by this division VI. 2 29 15. "Manufacturer" means a person who ships cigarettes 2 30 into this state from outside the state. 2 31 16. "Package" or "pack" means a container of any kind in 2 32 which cigarettes or tobacco products are offered for sale, 2 33 sold, or otherwise distributed to consumers. 2 34 17. "Permit" means an express written authorization issued 2 35 by the division for the retail sale of cigarettes. 3 1 18. "Permit holder", "holder of a permit", or "permittee" 3 2 includes a person who holds a retail permit under this 3 3 division VI or who holds a permit under chapter 453A, unless 3 4 the context otherwise requires. 3 5 19. "Permitted premises" or "premises" means a room, 3 6 enclosure, contiguous area, or place susceptible of precise 3 7 description satisfactory to the administrator where cigarettes 3 8 are sold under authority of a retail permit. A single 3 9 premises may consist of multiple rooms, enclosures, areas, or 3 10 places if they are wholly within the confines of a single 3 11 building or contiguous grounds. 3 12 20. "Person" means an individual, firm, association, joint 3 13 stock company, syndicate, copartnership, corporation, trustee, 3 14 agency or receiver, or respective legal representative. 3 15 21. "Retailer" means a person in this state who sells, 3 16 distributes, or offers for sale for consumption or possesses 3 17 for the purpose of sale for consumption, cigarettes 3 18 irrespective of quantity or amount or the number of sales. 3 19 22. "Retail permit" means a permit issued to a retailer. 3 20 23. "Self-service display" means any manner of product 3 21 display, placement, or storage from which a person purchasing 3 22 the product may take possession of the product, prior to 3 23 purchase, without assistance from the retailer or employee of 3 24 the retailer, in removing the product from a restricted access 3 25 location. 3 26 24. "State permit" means a permit issued by the department 3 27 of revenue and finance to a distributor, wholesaler, 3 28 manufacturer, or cigarette vendor. 3 29 25. "Tobacco product" means a cigar; little cigar as 3 30 defined in section 453A.42, subsection 5; cheroot; stogy; 3 31 perique; granulated; plug cut, crimp cut, ready rubbed, and 3 32 other smoking tobacco; snuff, snuff flour; cavendish; plug and 3 33 twist tobacco; fine-cut and other chewing tobacco; short; or 3 34 refuse scraps, clippings, cuttings and sweepings of tobacco, 3 35 and other kinds and forms of tobacco, prepared in such manner 4 1 as to be suitable for chewing or smoking in a pipe or 4 2 otherwise, or both for chewing and smoking; but does not mean 4 3 cigarettes. 4 4 26. "Unincorporated town" means a compactly populated area 4 5 recognized as a distinct place with a distinct place-name 4 6 which is not itself incorporated or within the corporate 4 7 limits of a city. 4 8 27. "Wholesaler" means a person other than a distributor 4 9 or distributing agent who engages in the business of selling 4 10 or distributing cigarettes within the state, for the purpose 4 11 of resale. 4 12 Sec. 2. NEW SECTION. 123.191 RETAIL PERMIT ENFORCEMENT 4 13 – POWERS OF ADMINISTRATOR. 4 14 1. The division is the primary retail permit enforcement 4 15 authority for this state. The department of public safety, 4 16 the county attorney, the county sheriff and the sheriff's 4 17 deputies, and the police department of every city shall aid in 4 18 the enforcement of this division VI. Persons authorized to 4 19 enforce this division VI shall have access to all records, 4 20 reports, audits, tax reports, and all other documents and 4 21 papers of the division pertaining to retail permits under this 4 22 division VI. 4 23 2. In addition to the powers otherwise authorized under 4 24 this chapter, the administrator shall have the following 4 25 powers: 4 26 a. To grant and issue retail permits and to suspend or 4 27 revoke retail permits as provided under this division VI. 4 28 b. To permit, inspect, and control retailers under this 4 29 division VI. 4 30 c. To adopt rules pursuant to chapter 17A to implement and 4 31 enforce this division VI. 4 32 3. The administrator shall have access to all records, 4 33 reports, audits, tax reports, and all other documents and 4 34 papers of the department of revenue and finance related to 4 35 chapter 453A to ensure proper administration and enforcement 5 1 of this division VI, chapter 421B, and chapter 453A. 5 2 Sec. 3. NEW SECTION. 123.192 RETAIL PERMITS – ACTION BY 5 3 LOCAL AUTHORITIES AND DIVISION ON APPLICATIONS. 5 4 1. RETAIL PERMITS. 5 5 a. PERMITS REQUIRED. A retailer, engaged or who desires 5 6 to become engaged in the sale or use of cigarettes, upon which 5 7 a tax is required to be paid pursuant to chapter 453A, shall 5 8 obtain a retail cigarette permit as a retailer. 5 9 b. NO SALES WITHOUT PERMIT. A retailer shall not sell any 5 10 cigarettes until an application has been filed and the fee 5 11 prescribed paid for a permit and until such permit is obtained 5 12 and only while the permit is unrevoked and unexpired. 5 13 c. NUMBER OF PERMITS. An application shall be filed and a 5 14 permit obtained for each premises owned or operated by a 5 15 retailer. 5 16 d. GROUP BUSINESSES. If a distributor or wholesaler sells 5 17 cigarettes at both retail and wholesale, the distributor or 5 18 wholesaler shall obtain a separate retail permit for retail 5 19 sales. 5 20 2. APPLICATION. Except as otherwise provided in section 5 21 123.195, a verified application for the original issuance or 5 22 the renewal of a retail permit shall be filed at the time and 5 23 in the number of copies as the administrator shall prescribe, 5 24 on a form prescribed by the administrator, and shall set forth 5 25 under oath the following information: 5 26 a. The name and address of the applicant. 5 27 b. The name of the owner of the premises, and if that 5 28 owner is not the applicant, a statement that the applicant is 5 29 the actual lessee of the premises. 5 30 c. The precise location of the premises for which a permit 5 31 is sought. 5 32 d. The names and addresses of all persons, partners, 5 33 officers, directors, shareholders, and all others having 5 34 financial interest, by way of loan, ownership, or otherwise, 5 35 in the business. 6 1 e. The manner under which the retailer transacts or 6 2 intends to transact business. 6 3 f. When required by the administrator, a sketch or drawing 6 4 of the premises proposed to be permitted, in such form and 6 5 containing such information as the administrator may require. 6 6 g. A statement whether any person specified in paragraph 6 7 "d" has ever been convicted of any offense against the laws of 6 8 the United States, or any state or territory of the United 6 9 States, of any political subdivision of any state or 6 10 territory. 6 11 h. Such other information as the administrator shall 6 12 prescribe by rule. 6 13 3. FILING OF APPLICATION. 6 14 a. An application for a retail permit, accompanied by the 6 15 necessary fee, shall be filed with the appropriate city 6 16 council if the premises for which the permit is sought are 6 17 located within the corporate limits of a city, or with the 6 18 county board of supervisors if the premises for which the 6 19 permit is sought are located outside the corporate limits of a 6 20 city including if the premises are located in an 6 21 unincorporated town. 6 22 b. A retail permit shall be issued only upon an 6 23 application accompanied by the necessary fee as provided in 6 24 subsection 1. 6 25 4. ACTION BY LOCAL AUTHORITIES. The local authority shall 6 26 either approve or deny the issuance of a retail permit, shall 6 27 endorse its approval or denial on the application, and shall 6 28 forward the application with the necessary fee to the 6 29 division. The number of retail permits which may be approved 6 30 for issuance by local authorities is not limited. 6 31 5. ACTION BY ADMINISTRATOR. 6 32 a. Upon receipt of an application that has been 6 33 disapproved by the local authority, the administrator shall 6 34 notify the applicant that the applicant may appeal the 6 35 disapproval of the application to the administrator. The 7 1 applicant shall be notified by certified mail, and the 7 2 application and the fee shall be returned to the applicant. 7 3 b. Upon receipt of an application that has been approved 7 4 by the local authority, the division shall perform an 7 5 investigation as the administrator deems necessary to 7 6 determine that the applicant complies with all requirements 7 7 for holding a permit, and may require the applicant to appear 7 8 to be examined under oath to demonstrate that the applicant 7 9 complies with all of the requirements to hold a permit. If 7 10 the administrator requires the applicant to appear and to 7 11 testify under oath, a record shall be made of all testimony or 7 12 evidence and the record shall become a part of the 7 13 application. The administrator may appoint a member of the 7 14 division or may request an administrative law judge of the 7 15 department of inspections and appeals to receive the testimony 7 16 under oath and evidence, and to issue a proposed decision to 7 17 approve or disapprove the application for a permit. The 7 18 administrator may affirm, reverse, or modify the proposed 7 19 decision to approve or disapprove the application for the 7 20 permit. If the application is approved by the administrator, 7 21 the permit shall be issued. If the application is disapproved 7 22 by the administrator, the applicant and the appropriate local 7 23 authority shall be so notified by certified mail. 7 24 6. APPEAL OF DISAPPROVAL TO ADMINISTRATOR. An applicant 7 25 for a retail permit may appeal from the local authority's 7 26 disapproval of an application for a retail permit to the 7 27 administrator. In the appeal, the applicant shall be allowed 7 28 the opportunity to demonstrate in an evidentiary hearing 7 29 conducted pursuant to chapter 17A that the applicant complies 7 30 with all of the requirements for holding the permit. The 7 31 administrator may appoint a member of the division or may 7 32 request an administrative law judge of the department of 7 33 inspections and appeals to conduct the evidentiary hearing and 7 34 to render a proposed decision to approve or deny the issuance 7 35 of the permit. The administrator may affirm, reverse, or 8 1 modify the proposed decision. If the administrator determines 8 2 that the applicant complies with all of the requirements for 8 3 holding a retail permit, the administrator shall order the 8 4 issuance of the permit. If the administrator determines that 8 5 the applicant does not comply with the requirements for 8 6 holding a permit, the administrator shall deny the issuance of 8 7 the permit. 8 8 7. JUDICIAL REVIEW OF ACTION OF ADMINISTRATOR. The 8 9 applicant or the local authority may seek judicial review of 8 10 the action of the administrator in accordance with the terms 8 11 of chapter 17A. Notwithstanding the terms of chapter 17A, 8 12 petitions for judicial review may be filed in the district 8 13 court of the county where the premises covered by the 8 14 application are situated. 8 15 8. APPEAL OF LOCAL AUTHORITY ACTION TO ADMINISTRATOR. A 8 16 retail permit holder whose permit has been suspended or 8 17 revoked or upon whom a civil penalty has been imposed by a 8 18 local authority for a violation of this division VI or whose 8 19 permit has been suspended by a local authority for violation 8 20 of a local ordinance may appeal the suspension, revocation, or 8 21 civil penalty to the administrator. The administrator may 8 22 appoint a member of the division or may request an 8 23 administrative law judge of the department of inspections and 8 24 appeals to hear the appeal which shall be conducted in 8 25 accordance with chapter 17A and to issue a proposed decision. 8 26 The administrator may review the proposed decision upon the 8 27 motion of a party to the appeal or upon the administrator's 8 28 own motion in accordance with chapter 17A. Upon review of the 8 29 proposed decision, the administrator may affirm, reverse, or 8 30 modify the proposed decision. A retail permit holder or a 8 31 local authority aggrieved by a decision of the administrator 8 32 may seek judicial review of the decision pursuant to chapter 8 33 17A. 8 34 9. ISSUANCE OR DENIAL. 8 35 a. A local authority or the division may deny the issuance 9 1 of a permit to a retailer who is substantially delinquent in 9 2 the payment of a tax due, or the interest or penalty on the 9 3 tax, administered by the department of revenue and finance 9 4 pursuant to chapter 453A at the time of the application. If 9 5 the applicant is a partnership, a permit may be denied if a 9 6 partner is substantially delinquent on any delinquent tax, 9 7 penalty, or interest. If the applicant is a corporation, a 9 8 permit may be denied if any officer having a substantial legal 9 9 or equitable interest in the ownership of the corporation owes 9 10 any delinquent tax, interest, or penalty of the applicant 9 11 corporation. 9 12 b. A retail permit shall not be issued for premises which 9 13 do not conform to all applicable laws, ordinances, 9 14 resolutions, and health and fire regulations. 9 15 10. PERMIT – FORM AND CONTENTS. A permit shall describe 9 16 clearly the premises for which the permit is issued, shall be 9 17 nonassignable, shall designate the kind of permit, and shall 9 18 authorize the sale of cigarettes in this state subject to the 9 19 limitations and restrictions contained in this division VI. A 9 20 retail permit shall be issued upon a form furnished by the 9 21 division. 9 22 11. PERMIT DISPLAYED. The permit shall, at all times, be 9 23 publicly displayed by the retailer, at the premises, so as to 9 24 be easily seen by the public and the persons authorized to 9 25 inspect the premises. The proprietor or keeper of any 9 26 building or place where cigarettes are kept for sale, or with 9 27 intent to sell, shall upon request of any agent of the 9 28 division, the department of revenue and finance, or any peace 9 29 officer exhibit the permit. A refusal or failure to exhibit 9 30 the permit is prima facie evidence that the cigarettes are 9 31 kept for sale or with intent to sell in violation of this 9 32 division. 9 33 12. INFORMATION ACCESS. The division shall provide 9 34 electronic access to all records regarding the application for 9 35 and issuance of retail permits under this division VI to the 10 1 Iowa department of public health. 10 2 Sec. 4. NEW SECTION. 123.193 RETAIL PERMIT FOR RAILWAY 10 3 CAR – WATERCRAFT – EXCURSION GAMBLING BOATS. 10 4 Subject to this division VI, a retail permit may be issued 10 5 by the division to any dining car company, sleeping car 10 6 company, railroad, railway company, passenger-carrying train, 10 7 or watercraft operating intrastate only. The permit shall 10 8 authorize the holder of the permit to keep for sale, and sell, 10 9 cigarettes at retail on any such dining car, sleeping car, 10 10 passenger car, or watercraft operated by the applicant in, 10 11 through, or across the state of Iowa, subject to all of the 10 12 restrictions imposed upon retailers under this division VI and 10 13 chapter 453A. The application for the permit shall be in the 10 14 form and contain the information required by the 10 15 administrator. A permit is good throughout the state and only 10 16 one permit is required by a permitee for all railway cars or 10 17 watercraft described in this section. The division shall 10 18 issue a duplicate permit for each such railway car or 10 19 watercraft. If the boat is an excursion gambling boat 10 20 licensed under chapter 99F, the owner shall obtain a separate 10 21 permit for each excursion gambling boat operated by the owner 10 22 in the state. If a permit is obtained in accordance with this 10 23 section, a further permit shall not be required or tax levied 10 24 for the privilege of selling cigarettes in the railway cars, 10 25 watercraft, or gambling boat. Cigarettes shall not be sold in 10 26 the railway cars, watercraft, or gambling boats without having 10 27 stamps affixed evidencing the payment of the tax as provided 10 28 in chapter 453A. 10 29 Sec. 5. NEW SECTION. 123.194 RECORDS – INSPECTIONS. 10 30 1. Every holder of a retail permit shall keep a daily 10 31 record of the gross receipts of the holder's business and 10 32 shall maintain invoices to provide proof of purchase of 10 33 cigarettes. The records and invoices required and the 10 34 premises of the retail permit holder shall be open to 10 35 inspection pursuant this section, during normal business hours 11 1 of the retail permit holder, or at any time that the permittee 11 2 or the permittee's agents or patrons are on the premises. 11 3 Records shall be kept for a period of three years from the 11 4 date of the transaction for the purpose of inspection. 11 5 2. A state permit holder who sells cigarettes at retail 11 6 shall issue an invoice to the holder's retail department for 11 7 cigarettes to be sold at retail and such cigarette invoices 11 8 shall be kept separate and apart. 11 9 3. As a condition for issuance of a retail permit, the 11 10 applicant shall provide consent to members of the fire, 11 11 police, and health departments and the building inspector of 11 12 cities, the county sheriff, deputy sheriff, members of the 11 13 department of public safety, representatives of the division, 11 14 representatives of the department of inspections and appeals 11 15 and representatives of the department of revenue and finance, 11 16 certified police officers, and any official county health 11 17 officer to enter upon areas of the premises where cigarettes 11 18 are stored or sold without warrant during business hours of 11 19 the retail permit holder or at any time the permittee or the 11 20 permittee's agents or patrons are on the premises to inspect 11 21 for violations of this division VI, chapter 453A, or 11 22 ordinances and regulations that cities and county boards of 11 23 supervisors may adopt. However, a subpoena issued under 11 24 section 421.17 or a warrant is required for inspection of 11 25 private records, a private business office, or attached living 11 26 quarters. Persons who are not certified peace officers shall 11 27 limit the scope of their inspections of permitted premises to 11 28 the regulatory authority under which the inspection is 11 29 conducted. All persons who enter upon permitted premises to 11 30 conduct an inspection shall present appropriate identification 11 31 to the owner of the establishment or the person who appears to 11 32 be in charge of the establishment prior to commencing an 11 33 inspection; however, this provision does not apply to 11 34 undercover criminal investigations conducted by peace 11 35 officers. 12 1 Sec. 6. NEW SECTION. 123.195 SIMPLIFIED RENEWAL 12 2 PROCEDURE. 12 3 The administrator shall prescribe simplified application 12 4 forms for the renewal of retail permits which may be filed by 12 5 permittees in lieu of a detailed renewal application form when 12 6 qualifications and qualification information have not changed 12 7 since the original issuance of the permit. The simplified 12 8 form shall require the permittee to verify under oath that the 12 9 information contained in the original application remains 12 10 current, and that no reason exists for the division's refusal 12 11 to renew the permit as originally issued. 12 12 Sec. 7. NEW SECTION. 123.196 PERMITS – FEES – 12 13 EXPIRATION. 12 14 1. The annual fee for retail permits is as follows: 12 15 a. In places outside any city, fifty dollars. 12 16 b. In cities of less than fifteen thousand population, 12 17 seventy-five dollars. 12 18 c. In cities of fifteen thousand or more population, one 12 19 hundred dollars. 12 20 d. For railway cars, watercraft, and excursion gambling 12 21 boats, twenty-five dollars. A duplicate permit for railway 12 22 cars, watercraft, and excursion gambling boats is two dollars. 12 23 2. Refunds shall not be issued if an unrevoked permit for 12 24 which the holder has paid the full annual fee is surrendered 12 25 at any time during the twelve-month period following issuance 12 26 of the permit. 12 27 3. Retail permits, unless sooner suspended or revoked, 12 28 expire one year from the date of issuance. The administrator 12 29 shall provide sixty days' written notice of the expiration to 12 30 each permittee. 12 31 4. The division may establish a per diem permit fee for 12 32 persons who apply for a retail permit under this division VI 12 33 and a permit or license held under any other provision of this 12 34 chapter in order to coordinate the period during which the 12 35 permits apply. 13 1 Sec. 8. NEW SECTION. 123.197 REVENUES REMITTED – 13 2 DEPOSITED. 13 3 1. The division shall remit to the appropriate local 13 4 authority the following amounts based on fees collected for 13 5 retail permits pursuant to section 123.196 covering premises 13 6 located within the local authority's jurisdiction. 13 7 a. Sixty-five percent of the first fifty dollars of the 13 8 retail permit fee for places outside any city. 13 9 b. Sixty-five percent of the first seventy-five dollars of 13 10 the retail permit fee for cities of less than fifteen thousand 13 11 population. 13 12 c. Sixty-five percent of the first one hundred dollars of 13 13 the retail permit fee for cities of fifteen thousand or more 13 14 population. 13 15 2. The remaining fees collected are to be retained by the 13 16 division and are appropriated for use by the division to 13 17 perform retail permit activities and enforcement. 13 18 Notwithstanding section 8.33, the remainder of the fees 13 19 collected shall not revert to the general fund of the state. 13 20 Sec. 9. NEW SECTION. 123.198 CIGARETTES RETAILER MAY NOT 13 21 SELL. 13 22 It is unlawful for a retailer to sell or have in the 13 23 retailer's possession cigarettes upon which the stamp tax 13 24 required pursuant to chapter 453A has not been affixed. 13 25 Sec. 10. NEW SECTION. 123.199 SELF-SERVICE SALES 13 26 PROHIBITED. 13 27 1. Except as provided in section 123.203, subsection 2, a 13 28 retailer shall not sell or offer for sale cigarettes or 13 29 tobacco products, in a quantity of less than a carton, through 13 30 the use of a self-service display. 13 31 2. Violation of this section by a holder of a retail 13 32 permit is grounds for revocation of such permit. 13 33 Sec. 11. NEW SECTION. 123.200 VIOLATION AS A FRAUDULENT 13 34 PRACTICE. 13 35 A person who violates a provision of this division VI is 14 1 guilty of a fraudulent practice unless otherwise provided in 14 2 this division VI. 14 3 Sec. 12. NEW SECTION. 123.201 PERSONS UNDER AGE 14 4 EIGHTEEN. 14 5 1. A person shall not sell, give, or otherwise supply any 14 6 tobacco, tobacco products, or cigarettes to any person under 14 7 eighteen years of age. 14 8 2. A person under eighteen years of age shall not smoke, 14 9 use, possess, purchase, or attempt to purchase any tobacco, 14 10 tobacco products, or cigarettes. 14 11 3. Possession of cigarettes or tobacco products by an 14 12 individual under eighteen years of age does not constitute a 14 13 violation under this section if the individual under eighteen 14 14 years of age possesses the cigarettes or tobacco products as 14 15 part of the individual's employment and the individual is 14 16 employed by a person who holds a valid permit under this 14 17 division or chapter 453A or who lawfully offers for sale or 14 18 sells cigarettes or tobacco products. 14 19 4. The Iowa department of public health, a county health 14 20 department, a city health department, or a city may directly 14 21 enforce this section in district court and initiate 14 22 proceedings pursuant to section 123.204 before a permit- 14 23 issuing authority against a permit holder violating this 14 24 section. 14 25 5. Payment and distribution of court costs, fees, and 14 26 fines in a prosecution initiated by a city or county shall be 14 27 made as provided in chapter 602 for violation of a city or 14 28 county ordinance. 14 29 6. A person shall not be guilty of a violation of this 14 30 section if conduct that would otherwise constitute a violation 14 31 is performed to assess compliance with cigarette and tobacco 14 32 products laws if any of the following applies: 14 33 a. The compliance effort is conducted by or under the 14 34 supervision of law enforcement officers. 14 35 b. The compliance effort is conducted with the advance 15 1 knowledge of law enforcement officers and reasonable measures 15 2 are adopted by those conducting the effort to ensure that use 15 3 of cigarettes or tobacco products by individuals under 15 4 eighteen years of age does not result from participation by 15 5 any individual under eighteen years of age in the compliance 15 6 effort. 15 7 For the purposes of this subsection, "law enforcement 15 8 officer" means a peace officer as defined in section 801.4 and 15 9 includes persons designated under subsection 4 to enforce this 15 10 section. 15 11 Sec. 13. NEW SECTION. 123.202 SEIZURE OF FALSE OR 15 12 ALTERED DRIVER'S LICENSE OR NONOPERATOR'S IDENTIFICATION CARD. 15 13 1. If a person holding a permit under this division VI or 15 14 chapter 453A or an employee of such a permittee has a 15 15 reasonable belief based on factual evidence that a driver's 15 16 license as defined in section 321.1, subsection 20A, or 15 17 nonoperator's identification card issued pursuant to section 15 18 321.190 offered by a person who wishes to purchase cigarettes 15 19 or tobacco products is altered or falsified or belongs to 15 20 another person, the permittee or employee may retain the 15 21 driver's license or nonoperator's identification card. Within 15 22 twenty-four hours, the card shall be delivered to the 15 23 appropriate city or county law enforcement agency of the 15 24 jurisdiction in which the permittee's premises are located, 15 25 and the permittee shall file a written report of the 15 26 circumstances under which the card was retained. The local 15 27 law enforcement agency may investigate whether a violation of 15 28 section 321.216, 321.216A, or 321.216C has occurred. If an 15 29 investigation is not initiated or probable cause is not 15 30 established by the local law enforcement agency, the driver's 15 31 license or nonoperator's identification card shall be 15 32 delivered to the person to whom it was issued. The local law 15 33 enforcement agency may forward the card with the report to the 15 34 state department of transportation for investigation, in which 15 35 case, the state department of transportation may investigate 16 1 whether a violation of section 321.216, 321.216A, or 321.216C 16 2 has occurred. The state department of transportation shall 16 3 return the card to the person to whom it was issued if an 16 4 investigation is not initiated or probable cause is not 16 5 established. 16 6 2. Upon taking possession of an identification card as 16 7 provided in subsection 1, a receipt for the card with the date 16 8 and hour of seizure noted shall be provided to the person from 16 9 whom the card is seized. 16 10 3. A person holding a permit under this division VI or 16 11 chapter 453A or an employee of such a permittee is not subject 16 12 to criminal prosecution for, or to civil liability for damages 16 13 alleged to have resulted from, the retention and delivery of a 16 14 driver's license or a nonoperator's identification card which 16 15 is taken pursuant to subsections 1 and 2. This section shall 16 16 not be construed to relieve a permittee or an employee of such 16 17 a permittee from civil liability for damages resulting from 16 18 the use of unreasonable force in obtaining the alleged altered 16 19 or falsified driver's license or identification card or the 16 20 driver's license or identification card believed to belong to 16 21 another person. 16 22 Sec. 14. NEW SECTION. 123.203 UNLAWFUL ACTS. 16 23 1. A person, unless the person is the holder of a retail 16 24 permit or the holder's representative, shall not solicit the 16 25 sale of cigarettes, provided that this section shall not 16 26 prevent solicitation by a nonpermit holder for the sale of 16 27 cigarettes to any state permit holder. 16 28 2. Sales of cigarettes or tobacco products made through a 16 29 cigarette vending machine are subject to rules and penalties 16 30 relative to retail sales of cigarettes and tobacco products 16 31 provided for in this division VI and chapter 453A. Cigarettes 16 32 shall not be sold through any cigarette vending machine unless 16 33 the cigarettes have been properly stamped or metered as 16 34 provided by chapter 453A, and in case of violation of this 16 35 provision, the permit of the dealer authorizing retail sales 17 1 of cigarettes shall be revoked. Payment of the permit fee as 17 2 provided in section 453A.13 authorizes a cigarette vendor to 17 3 sell cigarettes or tobacco products through vending machines. 17 4 However, cigarettes or tobacco products shall not be sold 17 5 through a vending machine unless the vending machine is 17 6 located in a place where the retailer ensures that no person 17 7 younger than eighteen years of age is present or permitted to 17 8 enter at any time. This section does not require a retail 17 9 permit holder to buy a cigarette vendor's permit if the retail 17 10 permit holder is in fact the owner of the cigarette vending 17 11 machines and the machines are operated in the location 17 12 described in the retail permit. 17 13 3. It shall be unlawful for a person other than a holder 17 14 of a retail permit to sell cigarettes at retail. A state 17 15 permit holder shall not sell or distribute cigarettes at 17 16 wholesale to any person in the state of Iowa who does not hold 17 17 a permit authorizing the retail sale of cigarettes or who does 17 18 not hold a state permit as a manufacturer, distributing agent, 17 19 wholesaler, or distributor. 17 20 Sec. 15. NEW SECTION. 123.204 REVOCATION – SUSPENSION 17 21 – CIVIL PENALTY. 17 22 1. If a retail permit holder has willfully violated 17 23 section 123.201, the division shall revoke the permit upon 17 24 notice and hearing. If a retail permit holder violates any 17 25 other provision of this division VI, the division may revoke 17 26 the permit issued to the person, after giving the permit 17 27 holder an opportunity to be heard upon ten days' written 17 28 notice stating the reason for the contemplated revocation and 17 29 the time and place at which the person may appear and be 17 30 heard. The hearing before the division may be held at a site 17 31 in the state as the division may direct. The notice shall be 17 32 given by mailing a copy to the permit holder's premises as it 17 33 appears on the application for the permit. If, upon hearing, 17 34 the division finds that the violation has occurred, the 17 35 division may revoke the permit. 18 1 2. If a retailer or employee of a retailer is convicted of 18 2 or found in violation of section 123.201, subsection 1, 18 3 section 142A.6, subsection 6, or section 123.203, subsection 18 4 2, the division or local authority, in addition to other 18 5 penalties fixed for such violations in this section, shall 18 6 assess a penalty upon the same notice and hearing as 18 7 prescribed in subsection 1 as follows: 18 8 a. For a first violation, the retailer shall be assessed a 18 9 civil penalty in the amount of three hundred dollars. Failure 18 10 to pay the civil penalty as ordered under this subsection 18 11 shall result in automatic suspension of the permit for a 18 12 period of fourteen days. 18 13 b. For a second violation within a period of two years, 18 14 the retailer's permit shall be suspended for a period of 18 15 thirty days. 18 16 c. For a third violation within a period of three years, 18 17 the retailer's permit shall be suspended for a period of sixty 18 18 days. 18 19 d. For a fourth violation within a period of three years, 18 20 the retailer's permit shall be revoked. 18 21 3. If a permit is revoked, a new permit shall not be 18 22 issued to the permit holder for any premises, or to any other 18 23 person for the premises at which the violation occurred, until 18 24 one year has expired from the date of revocation, unless good 18 25 cause to the contrary is shown to the issuing authority. 18 26 4. Notwithstanding subsection 3, if a retail permit is 18 27 suspended or revoked under this section, the suspension or 18 28 revocation shall only apply to the premises at which the 18 29 violation occurred and shall not apply to any other premises 18 30 of the holder of the retail permit. 18 31 5. If a permit holder fails to keep any of the records 18 32 required to be kept by the provisions of this division VI or 18 33 chapter 453A, or sells cigarettes upon which a tax is required 18 34 to be paid pursuant to chapter 453A without at the time having 18 35 a valid permit, or purchases or is in possession of unstamped 19 1 cigarettes, or fails or refuses to abide by any of the 19 2 provisions of this division VI or chapter 453A or the rules 19 3 adopted pursuant to this division VI or chapter 453A, or 19 4 violates chapter 421B, the person is civilly liable to the 19 5 state for a penalty as follows: 19 6 a. For possession of unstamped cigarettes: 19 7 (1) A two hundred dollar penalty for the first violation 19 8 if a person is in possession of more than forty but not more 19 9 than four hundred unstamped cigarettes. 19 10 (2) A five hundred dollar penalty for the first violation 19 11 if a person is in possession of more than four hundred but not 19 12 more than two thousand unstamped cigarettes. 19 13 (3) A one thousand dollar penalty for the first violation 19 14 if a person is in possession of more than two thousand 19 15 unstamped cigarettes. 19 16 (4) For a second violation within three years of the first 19 17 violation, the penalty is four hundred dollars if a person is 19 18 in possession of more than forty but not more than four 19 19 hundred unstamped cigarettes; one thousand dollars if a person 19 20 is in possession of more than four hundred but not more than 19 21 two thousand unstamped cigarettes; and two thousand dollars if 19 22 a person is in possession of more than two thousand unstamped 19 23 cigarettes. 19 24 (5) For a third or subsequent violation within three years 19 25 of the first violation, the penalty is six hundred dollars if 19 26 a person is in possession of more than forty but not more than 19 27 four hundred unstamped cigarettes; one thousand five hundred 19 28 dollars if a person is in possession of more than four hundred 19 29 but not more than two thousand unstamped cigarettes; and three 19 30 thousand dollars if a person is in possession of more than two 19 31 thousand unstamped cigarettes. 19 32 b. For all other violations of this subsection: 19 33 (1) A two hundred dollar penalty for the first violation. 19 34 (2) A five hundred dollar penalty for a second violation 19 35 within three years of the first violation. 20 1 (3) A thousand dollar penalty for a third or subsequent 20 2 violation within three years of the first violation. 20 3 The penalty imposed under this subsection shall be assessed 20 4 and collected pursuant to section 453A.28 and is in addition 20 5 to the tax, penalty, and interest imposed in that section. 20 6 6. A permit issued under this division VI may be suspended 20 7 or revoked, or a civil penalty may be imposed on the permit 20 8 holder by the local authority or the administrator for any of 20 9 the following causes: 20 10 a. Misrepresentation of any material fact in the 20 11 application for the permit. 20 12 b. Violation of any of the provisions of this division or 20 13 the rules adopted pursuant to this division. 20 14 c. Any change in the ownership or interest in the business 20 15 operated under the permit, which change was not previously 20 16 reported to and approved by the division or the local 20 17 authority. 20 18 d. An event which would have resulted in disqualification 20 19 from receiving the permit when originally issued. 20 20 e. Any sale, hypothecation, or transfer of the permit. 20 21 f. The failure or refusal on the part of the permit holder 20 22 to render any report or remit any taxes under this division VI 20 23 or chapter 453A when due. 20 24 8. A criminal conviction is not a prerequisite to 20 25 suspension, revocation, or imposition of a civil penalty 20 26 pursuant to this section. A local authority which acts 20 27 pursuant to this section shall notify the division in writing 20 28 of the action taken, and shall notify the permit holder of the 20 29 right to appeal a suspension, revocation, or imposition of a 20 30 civil penalty to the division. 20 31 a. A local authority may suspend a retail permit for 20 32 violation of any ordinance or regulation adopted by the local 20 33 authority. 20 34 b. A local authority shall retain civil penalties 20 35 collected under this section if the proceeding to impose the 21 1 penalty is conducted by the local authority. The division 21 2 shall retain civil penalties collected under this section if 21 3 the proceeding to impose the penalty is conducted by the 21 4 administrator of the division. 21 5 Sec. 16. NEW SECTION. 123.205 PENALTY. 21 6 1. PROVISION TO PERSON UNDER AGE EIGHTEEN. 21 7 a. A person, other than a retailer, who violates section 21 8 123.201, subsection 1, is guilty of a simple misdemeanor. 21 9 b. An employee of a retailer who violates section 123.201, 21 10 subsection 1, commits a simple misdemeanor punishable as a 21 11 scheduled violation under section 805.8, subsection 11. 21 12 2. POSSESSION OR PURCHASE BY PERSON UNDER AGE EIGHTEEN. A 21 13 person who violates section 123.201, subsection 2, is subject 21 14 to the following, as applicable: 21 15 a. A civil penalty pursuant to section 805.8, subsection 21 16 11. Notwithstanding section 602.8106 or any other provision 21 17 to the contrary, any civil penalty paid under this subsection 21 18 shall be retained by the city or county enforcing the 21 19 violation. 21 20 b. For a first offense, performance of eight hours of 21 21 community work requirements, unless waived by the court. 21 22 c. For a second offense, performance of twelve hours of 21 23 community work requirements. 21 24 d. For a third or subsequent offense, performance of 21 25 sixteen hours of community work requirements. 21 26 Sec. 17. NEW SECTION. 123.206 SUBPOENA FOR WITNESSES AND 21 27 PAPERS. 21 28 For the purpose of enforcing the provisions of this 21 29 division VI and of detecting violations of this division VI, 21 30 the administrator shall have the power to administer oaths and 21 31 to require by subpoena the attendance and testimony of 21 32 witnesses and the production of all relevant books, papers, 21 33 and records. Such attendance and production may be required 21 34 at any place convenient for the investigation. If a person 21 35 fails or refuses to obey a subpoena issued under this section, 22 1 the administrator may procure an order from the district court 22 2 in the county where the person resides, or where the person is 22 3 found, requiring the person to appear for examination or 22 4 requiring the person to produce the books, papers, and records 22 5 as required in the subpoena. Failure to obey the order shall 22 6 be punished as contempt of court. 22 7 Sec. 18. NEW SECTION. 123.207 VENUE OF ACTIONS TO 22 8 COLLECT. 22 9 Venue of any civil proceedings filed under the provision of 22 10 this division VI to collect fees and penalties levied shall be 22 11 in a court of competent jurisdiction in Polk county, or in any 22 12 court having jurisdiction. 22 13 Sec. 19. Section 232.8, subsection 1, paragraph b, Code 22 14 2001, is amended to read as follows: 22 15 b. Violations by a child of provisions of chapter 321, 22 16 321G,453A,461A, 461B, 462A, 481A, 481B, 483A, 484A, or 484B, 22 17 or of chapter 123, division VI, which would be simple 22 18 misdemeanors if committed by an adult, and violations by a 22 19 child of county or municipal curfew or traffic ordinances, are 22 20 excluded from the jurisdiction of the juvenile court and shall 22 21 be prosecuted as simple misdemeanors as provided by law. A 22 22 child convicted of a violation excluded from the jurisdiction 22 23 of the juvenile court under this paragraph shall be sentenced 22 24 pursuant to section 805.8, where applicable, and pursuant to 22 25 section 903.1, subsection 3, for all other violations. 22 26 Sec. 20. Section 321.216C, Code 2001, is amended to read 22 27 as follows: 22 28 321.216C USE OF DRIVER'S LICENSE OR NONOPERATOR'S 22 29 IDENTIFICATION CARD BYUNDERAGEPERSON UNDER AGE EIGHTEEN TO 22 30 OBTAIN CIGARETTES OR TOBACCO PRODUCTS. 22 31 A person who is under the age of eighteen, who alters or 22 32 displays or has in the person's possession a fictitious or 22 33 fraudulently altered driver's license or nonoperator's 22 34 identification card and who uses the license or card to 22 35 violate or attempt to violate section453A.2123.201, 23 1 subsection 2, commits a simple misdemeanor punishable by a 23 2 fine of one hundred dollars. The court shall forward a copy 23 3 of the conviction to the department. 23 4 Sec. 21. Section 421B.3, subsection 1, Code 2001, is 23 5 amended to read as follows: 23 6 1. It shall be unlawful for any wholesaler or retailer to 23 7 offer to sell, or sell, at wholesale or retail, cigarettes at 23 8 less than cost to such wholesaler or retailer, as the case may 23 9 be, as defined in this chapter. Any wholesaler or retailer 23 10 who violates the provisions of this section shall be guilty of 23 11 a simple misdemeanor and is also subject to the penalties 23 12 described in section 123.204, subsection 5, paragraph "b". 23 13 Sec. 22. Section 421B.10, Code 2001, is amended to read as 23 14 follows: 23 15 421B.10 INJUNCTION. 23 16 Thedirectoradministrator ofrevenue and financethe 23 17 alcoholic beverages division of the department of commerce, or 23 18 any person or persons injured by any violation, or who would 23 19 suffer injury from any threatened violation of this chapter, 23 20 may maintain an action in any equity court to enjoinsuchthe 23 21 actual or threatened violation. If a violation or threatened 23 22 violation of this chaptershall beis established, the court 23 23 shall enjoinsuchthe violation or threatened violation, and, 23 24 in additionthereto, the court shall assess in favor of the 23 25 plaintiff and against the defendant the costs of suit 23 26 including reasonable attorney's fees. Where alleged and 23 27 proved, the plaintiff, in addition to such injunctive relief 23 28 and costs of suit, including reasonable attorney's fees, shall 23 29 be entitled to recover from the defendant the actual damages 23 30 sustained by the plaintiff. 23 31 Sec. 23. Section 421B.11, Code 2001, is amended to read as 23 32 follows: 23 33 421B.11DIRECTORADMINISTRATOR OFREVENUE AND FINANCETHE 23 34 ALCOHOLIC BEVERAGES DIVISION – POWERS AND DUTIES. 23 35 Thedirectoradministrator ofrevenue and financethe 24 1 alcoholic beverages division of the department of commerce may 24 2 adopt rules for the enforcement of this chapter and the 24 3director is empowered to andadministrator may from time to 24 4 time undertake and make or cause to be made such cost surveys 24 5 for the state or such trading area or areas as thedirector24 6 administrator shall deem necessary and it shall be permissible 24 7 to use such cost survey as provided in section 421B.7, 24 8 subsection 2 and section 421B.8, subsection 2. 24 9 The director of revenue and finance or the administrator 24 10 may, upon notice and after hearing, suspend or revoke any 24 11 permit issued under the provisions ofthe cigarette tax24 12 chapter 453A or chapter 123, division VI, and the rules of the 24 13 directorpromulgated thereunderor administrator adopted 24 14 pursuant to those chapters, as applicable to the permit 24 15 holder, for failure of the permit holder to comply with any 24 16 provision of thisunfair cigarette saleschapter or any rule 24 17 adoptedthereunderpursuant to this chapter. The suspension 24 18 or revocation of a permit shall be for a period of not less 24 19 than six months from the date of suspension or revocation, and 24 20noa permit shall not be issued for the location designated in 24 21 the suspended or revoked permit, during the period of 24 22 suspension or revocation. 24 23 Judicial review of the actions of the director or 24 24 administrator may be sought in accordance with the terms of 24 25 the Iowa administrative procedure Act, and section 422.55. 24 26 Sec. 24. Section 453A.1, subsection 25, Code 2001, is 24 27 amended to read as follows: 24 28 25. "State permit" shall mean and include permits issued 24 29 by the department to distributors, wholesalers, manufacturers, 24 30 andretailerscigarette vendors. 24 31 Sec. 25. Section 453A.1, Code 2001, is amended by adding 24 32 the following new subsection: 24 33 NEW SUBSECTION. 17A. "Permit holder", "holder of a 24 34 permit", or "permittee" includes a person who holds a permit 24 35 under this chapter or a person who holds a retail permit under 25 1 chapter 123, division VI, unless the context otherwise 25 2 requires. 25 3 Sec. 26. Section 453A.13, Code 2001, is amended to read as 25 4 follows: 25 5 453A.13 DISTRIBUTOR'S,AND WHOLESALER'S, AND RETAILER'S25 6 PERMITS. 25 7 1. PERMITS REQUIRED. Every distributor, wholesaler, and 25 8 cigarette vendor, and retailer,now engaged or who desires to 25 9 become engaged in the sale or use of cigarettes, upon which a 25 10 tax is required to be paid, shall obtain a stateor retail25 11 cigarette permit as a distributor, wholesaler, or cigarette 25 12 vendor,or retailer,as the case may be. 25 13 2. ISSUANCE OR DENIAL. 25 14 a. The department shall issue state permits to 25 15 distributors, wholesalers, and cigarette vendors subject to 25 16 the conditions provided in this division.Cities may issue25 17retail permits to dealers within their respective limits.25 18County boards of supervisors may issue retail permits to25 19dealers in their respective counties, outside of the corporate25 20limits of cities.25 21 b. The department may deny the issuance of a permit to a 25 22 distributor, wholesaler, or vendoror retailerwho is 25 23 substantially delinquent in the payment of a tax due, or the 25 24 interest or penalty on the tax, administered by the department 25 25 at the time of application. If the applicant is a 25 26 partnership, a permit may be denied if a partner is 25 27 substantially delinquent on any delinquent tax, penalty or 25 28 interest. If the applicant is a corporation, a permit may be 25 29 denied if any officer having a substantial legal or equitable 25 30 interest in the ownership of the corporation owes any 25 31 delinquent tax, interest or penalty of the applicant 25 32 corporation. 25 33c. The department, or a city or county, shall submit a25 34duplicate of any application for a retail permit and any25 35retail permit issued by the entity under this subsection to26 1the Iowa department of public health within thirty days of the26 2issuance.26 3 c. As a condition for issuance of a permit under this 26 4 division, the applicant shall provide consent to members of 26 5 the fire, police, and health departments and the building 26 6 inspector of cities, the county sheriff, deputy sheriff, 26 7 members of the department of public safety, representatives of 26 8 the alcoholic beverages division, representatives of the 26 9 department of inspections and appeals, and representatives of 26 10 the department of revenue and finance, certified police 26 11 officers, and any official county health officer to enter upon 26 12 areas of the premises where cigarettes are stored or sold 26 13 without warrant during business hours of the permit holder or 26 14 at any time the permittee or the permittee's agents or patrons 26 15 are on the premises to inspect for violations of this division 26 16 or ordinances and regulations that cities and county boards of 26 17 supervisors may adopt. However, a subpoena issued under 26 18 section 421.17 or a warrant is required for inspection of 26 19 private records, a private business office, or attached living 26 20 quarters. Persons who are not certified peace officers shall 26 21 limit the scope of their inspections of permitted premises to 26 22 the regulatory authority under which the inspection is 26 23 conducted. All persons who enter upon permitted premises to 26 24 conduct an inspection shall present appropriate identification 26 25 to the owner of the establishment or the person who appears to 26 26 be in charge of the establishment prior to commencing an 26 27 inspection; however, this provision does not apply to 26 28 undercover criminal investigations conducted by peace 26 29 officers. 26 30 3. FEES – EXPIRATION. 26 31 a. All permits provided for in this division shall expire 26 32 on June 30 of each year. A permit shall not begranted or26 33 issued until the applicant has paidfor the period ending June26 3430 next,to the departmentor the city or county granting the26 35permit,the fees provided for in this division through the 27 1 period ending the next June 30. 27 2 b. The annual state permit fee for a distributor, 27 3 cigarette vendor, and wholesaler is one hundred dollarswhen27 4the permit is granted during the months of July, August, or27 5September. However, whenever a state permit holder operates 27 6 more than one place of business, a duplicate state permit 27 7 shall be issued for each additional place of business on 27 8 payment of five dollars for each duplicate state permit, but27 9refunds as provided in this division do not apply to any27 10duplicate permit issued. 27 11The fee for retail permits is as follows when the permit is27 12granted during the months of July, August, or September:27 13a. In places outside any city, fifty dollars.27 14b. In cities of less than fifteen thousand population,27 15seventy-five dollars.27 16c. In cities of fifteen thousand or more population, one27 17hundred dollars.27 18If any permit is granted during the months of October,27 19November, or December, the fee shall be three-fourths of the27 20above maximum schedule; if granted during the months of27 21January, February, or March, one-half of the maximum schedule,27 22and if granted during the months of April, May, or June, one-27 23fourth of the maximum schedule.27 24 4. REFUNDS. 27 25a. An unrevoked permit for which the holder has paid the27 26full annual fee may be surrendered during the first nine27 27months of said year to the officer issuing it, and the27 28department, or the city or county granting the permit shall27 29make refunds to the said holder as follows:Refunds shall not 27 30 be issued if an unrevoked permit for which the holder has paid 27 31 the full annual fee is surrendered at any time during the 27 32 twelve-month period following issuance of the permit. 27 33Three-fourths of the annual fee if the surrender is made27 34during July, August, or September.27 35One-half of the annual fee if the surrender is made during28 1October, November, or December.28 2One-fourth of the annual fee if the surrender is made28 3during January, February, or March.28 4b. An unrevoked permit for which the holder has paid28 5three-fourths of a full annual fee may be so surrendered28 6during the first six months of the period covered by said28 7payment and the said department, city or county shall make28 8refunds to the holder as follows:28 9A sum equal to one-half of an annual fee if the surrender28 10is made during October, November or December.28 11A sum equal to one-fourth of an annual fee if the surrender28 12is made during January, February or March.28 13c. An unrevoked permit for which the holder has paid one-28 14half of a full annual fee may be so surrendered during the28 15first three months of the period covered by said payment, and28 16the department, city or county, shall refund to the holder a28 17sum equal to one-fourth of an annual fee.28 18 5. APPLICATION – BOND.Said permitsPermits shall be 28 19 issued only upon applications accompanied by the fee indicated 28 20 above, and by an adequate bond as provided in section 453A.14, 28 21 and upon forms furnished by the department upon written 28 22 request. The failure to furnishsuchthe forms shall be no 28 23 excuse for the failure to file thesameform unless absolute 28 24 refusal is shown.SaidThe forms shall set forth: 28 25 a. The manner under which such distributor,or wholesaler,28 26or retailer,transacts or intends to transactsuchbusiness as 28 27 a distributor,or wholesaler, or retailer. 28 28 b. The principal office, residence, and place of business, 28 29 for which the permit is to apply. 28 30 c. If the applicant is not an individual, the principal 28 31 officers or membersthereof, not to exceed three,of the 28 32 entity and their addresses. 28 33 d. Such other information as the director shall by rules 28 34 prescribe. 28 35 6. NO SALES WITHOUT PERMIT.NoA distributor, wholesaler, 29 1 or cigarette vendor, or retailershall not sell any cigarettes 29 2 untilsuchan application has been filed and the fee 29 3 prescribed paid for a permit and untilsucha permit is 29 4 obtained and only whilesuchthe permit is unrevoked and 29 5 unexpired. 29 6 7. NUMBER OF PERMITS – TRUCKS. An application shall be 29 7 filed and a permit obtained for each place of business owned 29 8 or operated by a distributor, wholesaler, orretailer,29 9excepting that novendor. However, a permit need not be 29 10 obtained for a delivery or sales truck of a distributor,or29 11 wholesaler, or vendor holding a permit, provided that the 29 12 director may byregulationrule require thatsaidthe truck 29 13 bear the distributor's,orwholesaler's, or vendor's name, and 29 14 that the permit number of the place of business for and from 29 15 whichitthe truck operates be conspicuously displayed on the 29 16 outside of the body of the truck, immediately under the name. 29 17 8. GROUP BUSINESS.AnyA person who operates both as a 29 18 distributor and wholesaler in the same place of business shall 29 19 only be required to obtain a state permit for the particular 29 20 place of business wheresuchthe operation ofsaidthe 29 21 business is conducted. A separate retail permit issued under 29 22 chapter 123, division VI, however, shall be required if any 29 23 distributor or wholesaler sells cigarettes at both retail and 29 24 wholesale. 29 25 9. PERMIT – FORM AND CONTENTS.EachA permitissued29 26 shall describe clearly the place of business for whichitthe 29 27 permit is issued, shall be nonassignable,consecutively29 28numbered, designatingshall designate the kind of permit, and 29 29 shall authorize the sale of cigarettes in this state subject 29 30 to the limitations and restrictionshereincontained in this 29 31 chapter and chapter 123, division VI, as applicable.The29 32retail permits shall be upon forms furnished by the29 33department.29 34 Sec. 27. Section 453A.15, subsection 1, Code 2001, is 29 35 amended to read as follows: 30 1 1. The director may prescribe the forms necessary for the 30 2 efficient administration of this division and may require 30 3 uniform books and records to be used and kept by each permit 30 4 holder or other person as deemed necessary. The director may 30 5 also require each permit holder or other person to keep and 30 6 retain in the director's possession evidence on prescribed 30 7 forms of all transactions involving the purchase and sale of 30 8 cigarettes or the purchase and use of stamps. The evidence 30 9 shall be kept for a period oftwothree years from the date of 30 10 each transaction, for the inspection at all times by the 30 11 department. 30 12 Sec. 28. Section 453A.21, Code 2001, is amended to read as 30 13 follows: 30 14 453A.21 CIGARETTES RETAILER MAY NOT SELL. 30 15Unless a retail permit holder shall also hold a state30 16permit, itIt shall be unlawful for a retailer to sell or have 30 17 in the retailer's possession cigarettes upon which the stamp 30 18 tax has not been affixed. 30 19 Sec. 29. Section 453A.22, Code 2001, is amended to read as 30 20 follows: 30 21 453A.22 REVOCATION – SUSPENSION – CIVIL PENALTY. 30 22 1. If a person holding a permit issued by the department 30 23 under this division, including a retailer permit for railway30 24car,has willfully violated section453A.2123.201, the 30 25 department shall revoke the permit uponnotice and hearing30 26 notification by the administrator of the alcoholic beverages 30 27 division pursuant to chapter 123, division VI. If the person 30 28 violates anyotherprovision of this division, or a rule 30 29 adopted under this division, or is substantially delinquent in 30 30 the payment of a tax administered by the department or the 30 31 interest or penalty on the tax, or if the person is a 30 32 corporation and if any officer having a substantial legal or 30 33 equitable interest in the ownership of the corporation owes 30 34 any delinquent tax of the permit-holding corporation, or 30 35 interest or penalty on the tax, administered by the 31 1 department, the department may revoke the permit issued to the 31 2 person, after giving the permit holder an opportunity to be 31 3 heard upon ten days' written notice stating the reason for the 31 4 contemplated revocation and the time and place at which the 31 5 person may appear and be heard. The hearing before the 31 6 department may be held at a site in the state as the 31 7 department may direct. The notice shall be given by mailing a 31 8 copy to the permit holder's place of business as it appears on 31 9 the application for a permit. If, upon hearing, the 31 10 department finds that the violation has occurred, the 31 11 department may revoke the permit. 31 122. If a retailer or employee of a retailer has violated31 13section 453A.2 or section 453A.36, subsection 6, the31 14department or local authority, in addition to the other31 15penalties fixed for such violations in this section, shall31 16assess a penalty upon the same hearing and notice as31 17prescribed in subsection 1 as follows:31 18a. For a first violation, the retailer shall be assessed a31 19civil penalty in the amount of three hundred dollars. Failure31 20to pay the civil penalty as ordered under this subsection31 21shall result in automatic suspension of the permit for a31 22period of fourteen days.31 23b. For a second violation within a period of two years,31 24the retailer's permit shall be suspended for a period of31 25thirty days.31 26c. For a third violation within a period of three years,31 27the retailer's permit shall be suspended for a period of sixty31 28days.31 29d. For a fourth violation within a period of three years,31 30the retailer's permit shall be revoked.31 31 2. A permit issued under this division may be suspended or 31 32 revoked, or a civil penalty may be imposed on the permit 31 33 holder by the director for any of the following causes: 31 34 a. Misrepresentation of any material fact in the 31 35 application for the permit. 32 1 b. Violation of any of the provisions of this division or 32 2 the rules adopted pursuant to this division. 32 3 c. Any change in the ownership or interest in the business 32 4 operated under the permit, which change was not previously 32 5 reported to and approved by the department. 32 6 d. An event which would have resulted in disqualification 32 7 from receiving the permit when originally issued. 32 8 e. Any sale, hypothecation, or transfer of the permit. 32 9 f. The failure or refusal on the part of the permit holder 32 10 to render any report or remit any taxes under this chapter or 32 11 chapter 123, division VI, when due. 32 12 3. If a permit is revoked a new permit shall not be issued 32 13 to the permit holder for any place of business, or to any 32 14 other person for the place of business at which the violation 32 15 occurred, until one year has expired from the date of 32 16 revocation, unless good cause to the contrary is shown to the 32 17 issuing authority. 32 184. Notwithstanding subsection 3, if a retail permit is32 19suspended or revoked under this section, the suspension or32 20revocation shall only apply to the place of business at which32 21the violation occurred and shall not apply to any other place32 22of business to which the retail permit applies but at which32 23the violation did not occur.32 245. The department or local authority shall report the32 25suspension or revocation of a retail permit under this section32 26to the Iowa department of public health within thirty days of32 27the suspension or revocation of the retail permit.32 28 Sec. 30. Section 453A.25, Code 2001, is amended by adding 32 29 the following new subsection: 32 30 NEW SUBSECTION. 4. The director shall have access to all 32 31 records, reports, audits, tax reports, and all other documents 32 32 and papers of the alcoholic beverages division related to 32 33 chapter 123, division VI, to ensure proper administration of 32 34 this chapter, chapter 123, division VI, and chapter 421B. 32 35 Sec. 31. Section 453A.28, Code 2001, is amended to read as 33 1 follows: 33 2 453A.28 ASSESSMENT OF TAX BY DEPARTMENT – INTEREST – 33 3 PENALTY. 33 4 If after any audit, examination of records, or other 33 5 investigation the department finds that any person has sold 33 6 cigarettes without stamps affixed or that any person 33 7 responsible for paying the tax has not done so as required by 33 8 this division, the department shall fix and determine the 33 9 amount of tax due, and shall assess the tax against the 33 10 person, together with a penalty as provided in section 421.27. 33 11 The taxpayer shall pay interest on the tax or additional tax 33 12 at the rate determined under section 421.7 counting each 33 13 fraction of a month as an entire month, computed from the date 33 14 the tax was due. If any person fails to furnish evidence 33 15 satisfactory to the director showing purchases of sufficient 33 16 stamps to stamp unstamped cigarettes purchased by the person, 33 17 the presumption shall be that the cigarettes were sold without 33 18 the proper stamps affixed. Withintwothree years after the 33 19 report is filed or withintwothree years after the report 33 20 became due, whichever is later, the department shall examine 33 21 the report and determine the correct amount of tax. The 33 22 period for examination and determination of the correct amount 33 23 of tax is unlimited in the case of a false or fraudulent 33 24 report made with the intent to evade tax, or in the case of a 33 25 failure to file a report, or if a person purchases or is in 33 26 possession of unstamped cigarettes. 33 27 Thetwo-yearthree-year period of limitation may be 33 28 extended by a taxpayer by signing a waiver agreement form to 33 29 be provided by the department. The agreement must stipulate 33 30 the period of extension and the tax period to which the 33 31 extension applies. The agreement must also provide that a 33 32 claim for refund may be filed by the taxpayer at any time 33 33 during the period of extension. 33 34 Sec. 32. Section 453A.31, subsection 1, paragraphs d and 33 35 e, Code 2001, are amended to read as follows: 34 1 d. For a second violation withintwothree years of the 34 2 first violation, the penalty is four hundred dollars if a 34 3 person is in possession of more than forty but not more than 34 4 four hundred unstamped cigarettes; one thousand dollars if a 34 5 person is in possession of more than four hundred but not more 34 6 than two thousand unstamped cigarettes; and two thousand 34 7 dollars if a person is in possession of more than two thousand 34 8 unstamped cigarettes. 34 9 e. For a third or subsequent violation withintwothree 34 10 years of the first violation, the penalty is six hundred 34 11 dollars if a person is in possession of more than forty but 34 12 not more than four hundred unstamped cigarettes; one thousand 34 13 five hundred dollars if a person is in possession of more than 34 14 four hundred but not more than two thousand unstamped 34 15 cigarettes; and three thousand dollars if a person is in 34 16 possession of more than two thousand unstamped cigarettes. 34 17 Sec. 33. Section 453A.31, subsection 2, paragraphs b and 34 18 c, Code 2001, are amended to read as follows: 34 19 b. A five hundred dollar penalty for a second violation 34 20 withintwothree years of the first violation. 34 21 c. A thousand dollar penalty for a third or subsequent 34 22 violation withintwothree years of the first violation. 34 23 Sec. 34. Section 453A.32, subsection 5, Code 2001, is 34 24 amended to read as follows: 34 25 5. In the event the cigarettes seized hereunder and sought 34 26 to be sold upon forfeiture shall be unstamped, the cigarettes 34 27 shall be sold by the director or the director's designee to 34 28 the highest bidder among thelicensedpermitted distributors 34 29 in this state after written notice has been mailed to all such 34 30 distributors. If there is no bidder or in the opinion of the 34 31 director the quantity of cigarettes to be sold is insufficient 34 32 or for any other reason such disposition of the cigarettes is 34 33 impractical, the cigarettes shall be destroyed or disposed of 34 34 in a manner as determined by the director. The proceeds of 34 35 such sales shall be paid into the state treasury. 35 1 Sec. 35. Section 453A.33, Code 2001, is amended to read as 35 2 follows: 35 3 453A.33 SEIZURE NOT TO AFFECT CRIMINAL PROSECUTION. 35 4 The seizure, forfeiture, and sale of cigarettes, tobacco 35 5 products, and other property under the terms and conditions 35 6 hereinabove set out, shall not constitute any defense to the 35 7 person owning or having control or possession of the property 35 8 from criminal prosecution for any act or omission made or 35 9 offense committed under this chapter or chapter 123, division 35 10 VI, or from liability to pay penalties provided by this 35 11 chapter or chapter 123, division VI. 35 12 Sec. 36. Section 453A.35, Code 2001, is amended to read as 35 13 follows: 35 14 453A.35 TAX AND FEES PAID TO GENERAL FUND. 35 15 The proceeds derived from the sale of stamps and the 35 16 payment of taxes, fees and penalties provided for under this 35 17 chapter, and the permit fees received from all permits issued 35 18 by the department, shall be credited to the general fund of 35 19 the state.All permit fees provided for in this chapter and35 20collected by cities in the issuance of permits granted by the35 21cities shall be paid to the treasurer of the city where the35 22permit is effective, or to another city officer as designated35 23by the council, and credited to the general fund of the city.35 24Permit fees so collected by counties shall be paid to the35 25county treasurer.35 26 Sec. 37. Section 453A.36, subsections 5, 6, and 7, Code 35 27 2001, are amended to read as follows: 35 28 5. No person, unless the person be the holder of a permit 35 29 under this chapter or chapter 123, division VI, or the 35 30 holder's representative, shall solicit the sale of cigarettes, 35 31 provided that this section shall not prevent solicitation by a 35 32 nonpermitholder for the sale of cigarettes to any state 35 33 permitholder. 35 34 6. Any sales of cigarettes or tobacco products made 35 35 through a cigarette vending machine are subject to rules and 36 1 penalties relative to retail sales of cigarettes and tobacco 36 2 products provided for in this chapter and chapter 123, 36 3 division VI. No cigarettes shall be sold through any 36 4 cigarette vending machine unless the cigarettes have been 36 5 properly stamped or metered as provided by this division, and 36 6 in case of violation of this provision, the permit of the 36 7 dealer authorizing retail sales of cigarettes shall be 36 8canceledrevoked. Payment of thelicensepermit fee as 36 9 provided in section 453A.13 authorizes a cigarette vendor to 36 10 sell cigarettes or tobacco products through vending machines. 36 11 However, cigarettes or tobacco products shall not be sold 36 12 through a vending machine unless the vending machine is 36 13 located in a place where the retailer ensures that no person 36 14 younger than eighteen years of age is present or permitted to 36 15 enter at any time. This section does not require a retail 36 16licenseepermitee to buy a cigarette vendor's permit if the 36 17 retaillicenseepermitee is in fact the owner of the cigarette 36 18 vending machines and the machines are operated in the location 36 19 described in the retail permit issued pursuant to chapter 123, 36 20 division VI. 36 21 7. It shall be unlawful for a person other than a holder 36 22 of a retail permit issued pursuant to chapter 123, division 36 23 VI, to sell cigarettes at retail.NoA state permit holder 36 24 shall not sell or distribute cigarettes at wholesale to any 36 25 person in the state of Iowa who does not hold a permit 36 26 authorizing the retail sale of cigarettes or who does not hold 36 27 a state permit as a manufacturer, distributing agent, 36 28 wholesaler, or distributor. 36 29 Sec. 38. Section 453A.40, subsection 1, Code 2001, is 36 30 amended to read as follows: 36 31 1. All persons required to belicensedpermitted under 36 32 section 453A.13 as distributors having in their possession and 36 33 held for resale on the effective date of an increase in the 36 34 tax rate cigarettes or little cigars upon which the tax under 36 35 section 453A.6 or 453A.43 has been paid, unused cigarette tax 37 1 stamps which have been paid for under section 453A.8, or 37 2 unused metered imprints which have been paid for under section 37 3 453A.12 shall be subject to an inventory tax on the items as 37 4 provided in this section. 37 5 Sec. 39. Section 602.6405, subsection 2, Code 2001, is 37 6 amended to read as follows: 37 7 2. a. Magistrates shall hear and determine violations of 37 8 and penalties for violations of section453A.2123.201, 37 9 subsection 2. 37 10 b. Magistrates shall forward copies of citations issued 37 11 for violations of section453A.2123.201, subsection 2, and of 37 12 their dispositions to the clerk of the district court. The 37 13 clerk of the district court shall maintain records of 37 14 citations issued and the dispositions of citations, and shall 37 15 forward a copy of the records to the Iowa department of public 37 16 health. 37 17 Sec. 40. Section 805.6, subsection 3, Code 2001, is 37 18 amended to read as follows: 37 19 3. The uniform citation and complaint shall contain a 37 20 place for citing a person in violation of section453A.237 21 123.201, subsection 2. 37 22 Sec. 41. Section 805.8, subsection 11, paragraphs b and c, 37 23 Code 2001, are amended to read as follows: 37 24 b. For violations of section453A.2123.201, subsection 1, 37 25 by an employee of a retailer, the scheduled fine is as 37 26 follows: 37 27 (1) If the violation is a first offense, the scheduled 37 28 fine is one hundred dollars. 37 29 (2) If the violation is a second offense, the scheduled 37 30 fine is two hundred fifty dollars. 37 31 (3) If the violation is a third or subsequent offense, the 37 32 scheduled fine is five hundred dollars. 37 33 c. For violations of section453A.2123.201, subsection 2, 37 34 the scheduled fine is as follows and is a civil penalty, and 37 35 the criminal penalty surcharge under section 911.2 shall not 38 1 be added to the penalty, and the court costs pursuant to 38 2 section 805.9, subsection 6, shall not be imposed: 38 3 (1) If the violation is a first offense, the scheduled 38 4 fine is fifty dollars. 38 5 (2) If the violation is a second offense, the scheduled 38 6 fine is one hundred dollars. 38 7 (3) If the violation is a third or subsequent offense, the 38 8 scheduled fine is two hundred fifty dollars. 38 9 Sec. 42. Section 805.10, subsection 1, Code 2001, is 38 10 amended by adding the following new paragraph: 38 11 NEW PARAGRAPH. e. When the violation charged is a 38 12 violation of section 123.201, subsection 2. 38 13 Sec. 43. Section 903.1, subsection 3, Code 2001, is 38 14 amended to read as follows: 38 15 3. A person under eighteen years of age convicted of a 38 16 simple misdemeanor under chapter 321, 321G,453A,461A, 461B, 38 17 462A, 481A, 481B, 483A, 484A, or 484B, or chapter 123, 38 18 division VI, or a violation of a county or municipal curfew or 38 19 traffic ordinance, except for an offense subject to section 38 20 805.8, may be required to pay a fine, not to exceed one 38 21 hundred dollars, as fixed by the court, or may be required to 38 22 perform community service as ordered by the court. 38 23 Sec. 44. EFFECTIVE DATE. 38 24 1. Sections 1 through 43 and sections 46 and 47 of this 38 25 Act take effect January 1, 2002. 38 26 2. This section and section 45 of this Act take effect 38 27 July 1, 2001. 38 28 Sec. 45. NOTIFICATION OF LOCAL AUTHORITIES – EXPIRATION 38 29 OF PERMITS JUNE 30, 2002, STAGGERED RENEWAL – PRORATED FEES 38 30 – EFFECTIVE DATE. 38 31 1. The administrator of the alcoholic beverages division 38 32 of the department of commerce shall notify local authorities 38 33 as defined under this Act of the provisions of this Act by 38 34 October 1, 2001, and shall include projections of revenue 38 35 generated under the provisions of this Act to assist the local 39 1 authorities in certifying local budgets pursuant to chapter 39 2 24. 39 3 2. a. Notwithstanding any provision of this Act to the 39 4 contrary, beginning January 1, 2002, the administrator of the 39 5 alcoholic beverages division of the department of commerce may 39 6 provide for staggered renewal, prior to June 30, 2002, of 39 7 retail permits that were issued prior to January 1, 2002, and 39 8 that expire on June 30, 2002. The administrator shall provide 39 9 sixty days' written notice of the date by which a retail 39 10 permit holder shall renew the expired permit. However, all 39 11 permits that expire June 30, 2002, shall be renewed no later 39 12 than July 1, 2002. 39 13 b. The administrator of the alcoholic beverages division 39 14 of the department of commerce shall honor retail permits 39 15 issued prior to January 1, 2002, until such time as a permit 39 16 is renewed under the provisions of this Act. The 39 17 administrator shall provide a process for pro rating permit 39 18 fees for permits renewed under the staggered renewal process 39 19 to provide credit for the portion of the annual permit fee 39 20 submitted with the prior permit application. 39 21 3. The administrator of the alcoholic beverages division 39 22 of the department of commerce may adopt rules to implement 39 23 this section. 39 24 Sec. 46. DIRECTIONS TO CODE EDITOR. The Code editor is 39 25 directed to create a new "DIVISION VI – CIGARETTE RETAIL 39 26 PERMITS – VIOLATIONS – PENALTIES" of chapter 123. 39 27 Sec. 47. Sections 453A.2, 453A.3, 453A.4, 453A.23, and 39 28 453.36A, Code 2001, are repealed. 39 29 EXPLANATION 39 30 This bill transfers the authority of the department of 39 31 revenue and finance to issue permits to retailers of 39 32 cigarettes from the department of revenue and finance to the 39 33 alcoholic beverages division of the department of commerce 39 34 (division) and establishes a new division under the alcoholic 39 35 beverage control chapter (Code chapter 123), division VI, 40 1 cigarette retail permits – violations – penalties. The bill 40 2 provides the process for retail permits to be issued by local 40 3 authorities in a manner similar to that of the issuance of 40 4 alcoholic beverage permits. Following collection of fees for 40 5 retail permits, the division is to remit a sum equal to 65 40 6 percent of the fees collected to the local authority under 40 7 whose jurisdiction the permit was issued. Any remaining fees 40 8 collected do not revert to the general fund but are 40 9 appropriated to the division for the purposes of retail permit 40 10 activities and enforcement. 40 11 The bill also relocates a number of violations relating to 40 12 cigarettes from Code chapter 453A (cigarette and tobacco 40 13 taxes) to the new division in Code chapter 123. These include 40 14 violations relating to self-service sales, violations relating 40 15 to persons under age 18, seizure of false or altered driver's 40 16 licenses or nonoperator's identification cards, and other 40 17 unlawful acts all of which are not changed in the transfer. 40 18 The bill also relocates violations related to suspension and 40 19 revocation of a retail permit and the penalties related to 40 20 such suspension or revocation, all of which are not changed in 40 21 the transfer. 40 22 The bill also provides that a minor who is issued a 40 23 citation for smoking, using, possessing, purchasing, or 40 24 attempting to purchase tobacco, tobacco products, or 40 25 cigarettes is not allowed to utilize the admission of 40 26 scheduled violation process, but must appear in court and the 40 27 citation is to include a notation that a court appearance is 40 28 required. 40 29 The bill includes the administrator of the alcoholic 40 30 beverages division in enforcement of Code chapter 421B 40 31 regarding cigarette sales at less than cost. 40 32 The bill also makes conforming changes throughout the Code 40 33 necessitated by the transfer of authority and other changes 40 34 under the bill. The bill provides for staggered renewal of 40 35 retail permits that expire June 30, 2002. The bill directs 41 1 the Code editor to create the new division VI in Code chapter 41 2 123. The bill takes effect January 1, 2002, with the 41 3 exception of provisions relating to notifying local 41 4 authorities of the provisions of the bill and staggered 41 5 renewal provisions of the bill, which take effect upon 41 6 enactment. 41 7 LSB 1232DP 79 41 8 pf/cls/14.2
Text: HSB00178 Text: HSB00180 Text: HSB00100 - HSB00199 Text: HSB Index Bills and Amendments: General Index Bill History: General Index
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