House File 637
HOUSE FILE
BY COMMITTEE ON PUBLIC SAFETY
(SUCCESSOR TO HSB 245)
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to tobacco retailers and providing penalties and
2 providing applicability provisions and an effective date.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
4 TLSB 2779HV 80
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PAG LIN
1 1 Section 1. Section 453A.2, Code 2003, is amended by adding
1 2 the following new subsection:
1 3 NEW SUBSECTION. 5A. If a county health department, a city
1 4 health department, or a city has not assessed a penalty
1 5 pursuant to section 453A.22, subsection 2, for a violation of
1 6 subsection 1, within sixty days of the adjudication of the
1 7 violation, the matter shall be transferred to and be the
1 8 exclusive responsibility of the Iowa department of public
1 9 health. Following transfer of the matter, if the violation is
1 10 contested, the Iowa department of public health shall request
1 11 an administrative hearing before an administrative law judge,
1 12 assigned by the division of administrative hearings of the
1 13 department of inspections and appeals in accordance with the
1 14 provisions of section 10A.801, to adjudicate the matter
1 15 pursuant to chapter 17A.
1 16 Sec. 2. NEW SECTION. 453A.2A TOBACCO COMPLIANCE EMPLOYEE
1 17 TRAINING PROGRAM.
1 18 1. The alcoholic beverages division of the department of
1 19 commerce shall develop a tobacco compliance employee training
1 20 program not to exceed two hours in length for employees and
1 21 prospective employees of tobacco retailers to inform the
1 22 employees about state and federal laws and regulations
1 23 regarding the sale of cigarettes and tobacco products to
1 24 persons under eighteen years of age and compliance with and
1 25 the importance of laws regarding the sale of cigarettes and
1 26 tobacco products to persons under eighteen years of age.
1 27 2. The tobacco compliance employee training program shall
1 28 be made available to employees and prospective employees of
1 29 tobacco retailers at no cost to the employee, the prospective
1 30 employee, or the retailer, and in a manner which is as
1 31 convenient and accessible to the extent practicable throughout
1 32 the state so as to encourage attendance. Contingent upon the
1 33 availability of specified funds for provision of the program,
1 34 the division shall schedule the program on at least a monthly
1 35 basis and the program shall be available at a location in at
2 1 least a majority of counties.
2 2 3. Upon completion of the tobacco compliance employee
2 3 training program, an employee or prospective employee shall
2 4 receive a certificate of completion, which shall be valid for
2 5 a period of two years, unless the employee or prospective
2 6 employee is convicted of a violation of section 453A.2,
2 7 subsection 1, in which case the certificate shall be void.
2 8 4. The tobacco compliance employee training program shall
2 9 also offer periodic continuing employee training and
2 10 recertification for employees who have completed initial
2 11 training and received certificates of completion.
2 12 Sec. 3. Section 453A.22, subsection 2, Code 2003, is
2 13 amended to read as follows:
2 14 2. If a retailer or employee of a retailer has violated
2 15 section 453A.2 or section 453A.36, subsection 6, the
2 16 department, the Iowa department of public health, or the local
2 17 authority, in addition to the other penalties fixed for such
2 18 violations in this section, shall assess a penalty upon the
2 19 same hearing and notice as prescribed in subsection 1 as
2 20 follows:
2 21 a. For a first violation, the retailer shall be assessed a
2 22 civil penalty in the amount of three hundred dollars. Failure
2 23 to pay the civil penalty as ordered under this subsection
2 24 shall result in automatic suspension of the permit for a
2 25 period of fourteen days.
2 26 b. For a second violation within a period of two years,
2 27 the retailer shall be assessed a civil penalty in the amount
2 28 of one thousand five hundred dollars or the retailer's permit
2 29 shall be suspended for a period of thirty days. The retailer
2 30 may select its preference in the penalty to be applied under
2 31 this paragraph.
2 32 c. For a third violation within a period of three years,
2 33 the retailer shall be assessed a civil penalty in the amount
2 34 of one thousand five hundred dollars and the retailer's permit
2 35 shall be suspended for a period of sixty thirty days.
3 1 d. For a fourth violation within a period of three years,
3 2 the retailer shall be assessed a civil penalty in the amount
3 3 of one thousand five hundred dollars and the retailer's permit
3 4 shall be revoked suspended for a period of sixty days.
3 5 e. For a fifth violation within a period of four years,
3 6 the retailer's permit shall be revoked.
3 7 Sec. 4. Section 453A.22, Code 2003, is amended by adding
3 8 the following new subsections:
3 9 NEW SUBSECTION. 2A. If an employee of a retailer violates
3 10 section 453A.2, subsection 1, the retailer shall not be
3 11 assessed a penalty under subsection 2, and the violation shall
3 12 be deemed not to be a violation of section 453A.2, subsection
3 13 1, for the purpose of determining the number of violations for
3 14 which a penalty may be assessed pursuant to subsection 2, if
3 15 the employee holds a valid certificate of completion of the
3 16 tobacco compliance employee training program pursuant to
3 17 section 453A.2A at the time of the violation. A retailer may
3 18 assert only once in a four=year period the bar under either
3 19 this subsection or subsection 2B against assessment of a
3 20 penalty pursuant to subsection 2, for a violation of section
3 21 453A.2, that takes place at the same place of business
3 22 location.
3 23 NEW SUBSECTION. 2B. If an employee of a retailer violates
3 24 section 453A.2, subsection 1, the retailer shall not be
3 25 assessed a penalty under subsection 2, and the violation shall
3 26 be deemed not to be a violation of section 453A.2, subsection
3 27 1, for the purpose of determining the number of violations for
3 28 which a penalty may be assessed pursuant to subsection 2, if
3 29 the retailer provides written documentation that the employee
3 30 of the retailer has completed an in=house tobacco compliance
3 31 employee training program or a tobacco compliance employee
3 32 training program which is substantially similar to the "I
3 33 Pledge" program developed by the alcoholic beverages division
3 34 of the department of commerce. A retailer may assert only
3 35 once in a four=year period the bar under this subsection
4 1 against assessment of a penalty pursuant to subsection 2, for
4 2 a violation of section 453A.2, that takes place at the same
4 3 place of business location.
4 4 Sec. 5. APPLICABILITY PROVISIONS.
4 5 1. Notwithstanding any provision of law to the contrary,
4 6 the section of this Act creating section 453A.2, subsection
4 7 5A, is applicable to violations pending on the effective date
4 8 of this Act for which a penalty has not been assessed under
4 9 section 453A.22, subsection 2.
4 10 2. Notwithstanding section 453A.22, subsection 2, Code
4 11 2003, the section of this Act amending section 453A.22,
4 12 subsection 2, is applicable to each violation of section
4 13 453A.2, subsection 1, by a retailer or an employee of a
4 14 retailer which is pending on the effective date of this Act
4 15 and for which a penalty has not been assessed under section
4 16 453A.22, subsection 2, Code 2003.
4 17 Sec. 6. Section 453A.22, subsection 2B, as enacted by this
4 18 Act, is repealed one year from the effective date of this Act.
4 19 Sec. 7. EFFECTIVE DATE. This Act, being deemed of
4 20 immediate importance, takes effect upon enactment.
4 21 EXPLANATION
4 22 This bill relates to tobacco products and cigarette
4 23 retailers.
4 24 The bill provides that if a county health department, city
4 25 health department, or a city has not assessed a penalty for a
4 26 violation of Code section 453A.2, subsection 1, relating to
4 27 selling, giving, or otherwise supplying any tobacco, tobacco
4 28 products, or cigarettes to any person under 18 years of age,
4 29 within 60 days of the adjudication of the violation, the
4 30 matter is transferred to the Iowa department of public health
4 31 (IDPH) and is the exclusive responsibility of IDPH. If the
4 32 violation is then contested, IDPH is to request a hearing
4 33 before an administrative law judge provided by the department
4 34 of inspections and appeals to adjudicate the matter pursuant
4 35 to Code chapter 17A.
5 1 The bill requires the alcoholic beverages division of the
5 2 department of commerce to develop a tobacco compliance
5 3 employee training program, not to exceed two hours in length,
5 4 to be provided to employees and prospective employees of
5 5 tobacco retailers to inform the employees about state and
5 6 federal laws and regulations regarding the sale of cigarettes
5 7 and tobacco products to persons under 18 and compliance with
5 8 and the importance of laws regarding the sale of cigarettes
5 9 and tobacco products to persons under 18. The program is to
5 10 be provided at no cost to the employee, prospective employee,
5 11 or retailer and in a manner that is convenient and accessible
5 12 to the extent practicable throughout the state in order to
5 13 encourage attendance. Contingent on availability of funds,
5 14 the program is to be scheduled on at least a monthly basis and
5 15 at locations in at least a majority of the counties. The
5 16 employee or prospective employee is to receive a certificate
5 17 of completion, valid for two years, unless the employee or
5 18 prospective employee is convicted of a violation of section
5 19 453A.2, subsection 1. In that case, the certificate is void.
5 20 The program is also to offer periodic continuing employee
5 21 training and recertification.
5 22 The bill changes the penalties assessed against retailers
5 23 for a violation of Code section 453A.2 or section 453A.36,
5 24 subsection 6, by a retailer or employee of a retailer.
5 25 Currently, for a second violation within a two=year period,
5 26 the penalty is suspension of the retailer's permit for 30
5 27 days. The bill changes this to provide that the penalty is
5 28 either a civil penalty of $1,500 or suspension of the permit
5 29 for 30 days. The retailer is allowed to select its preference
5 30 of the penalty to be applied. Currently, for a third
5 31 violation within a three=year period, the retailer's permit is
5 32 suspended for 60 days. The bill would provide that the
5 33 penalty instead is a civil penalty of $1,500 and suspension of
5 34 the permit for 30 days. Currently, for a fourth violation in
5 35 a period of three years, the penalty is revocation of the
6 1 permit. Under the bill, the penalty instead is a civil
6 2 penalty of $1,500 and suspension of the permit for 60 days.
6 3 Under the bill, a new penalty is created for a fifth violation
6 4 in a period of four years, which is revocation of the permit.
6 5 The bill provides that if an employee of a retailer
6 6 violates Code section 453A.2, subsection 1, the retailer is
6 7 not to be assessed a penalty under Code section 453A.22,
6 8 subsection 2, and the violation is not to be deemed a
6 9 violation for the purposes of determining the number of
6 10 violations for which a penalty may be assessed against the
6 11 retailer under that subsection, if the employee holds a
6 12 certificate of completion of the compliance training program
6 13 at the time of the violation. The retailer is allowed to
6 14 assert either this bar or the bar under a subsequent new
6 15 subsection only once in a four=year period that takes place at
6 16 the same place of business location.
6 17 The bill also provides in a new subsection that if an
6 18 employee of a retailer violates Code section 453A.2,
6 19 subsection 1, the retailer is not to be assessed a penalty
6 20 under Code section 453A.22, subsection 2, and the violation is
6 21 not to be deemed a violation for the purposes of determining
6 22 the number of violations for which a penalty may be assessed
6 23 against the retailer under that subsection, if the employer
6 24 provides written documentation that the employee has completed
6 25 an in=house compliance training program or a compliance
6 26 training program that is substantially similar to the "I
6 27 Pledge" program of the alcohol and beverages division. The
6 28 employer is allowed to assert this bar only once in a four=
6 29 year period for a violation that takes place at the same place
6 30 of the business location. This subsection is repealed one
6 31 year from the effective date of the bill.
6 32 The bill also provides applicability provisions. The bill
6 33 provides that the section relating to transfer of certain
6 34 matters to the Iowa department of public health applies
6 35 regarding violations of Code section 453A.2, subsection 1,
7 1 applies to violations pending on the effective date of the
7 2 bill. The Code section also provides that notwithstanding
7 3 Code section 453A.22, subsection 2, as it appears in Code
7 4 2003, the Code section of the Act amending that Code
7 5 subsection applies to each violation of Code section 453A.2,
7 6 subsection 1, by a retailer or an employee of a retailer,
7 7 which is pending on the effective date of the bill and for
7 8 which a penalty has not been assessed under Code section
7 9 453A.22, subsection 2.
7 10 The bill takes effect upon enactment.
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