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HomeMy WebLinkAboutB & B East-2/10/2014CITY OF WATERLOO Council Communication City Council Meeting: February 10, 2014 Prepared: February 3, 2014 Dept. Head Signature: James E. Walsh, Jr., City Attorney # of Attachments: SUBJECT: B & B East, 1615 Bishop Avenue, Waterloo, Iowa 50703, Tobacco Violation, Second, $1,500.00 civil penalty Submitted by: David R. Zellhoefer, Asst. City Attorney Recommended City Council Action: Accept Acknowledgment/Settlement Agreement Summary Statement: An employee sold tobacco to a minor. Under Iowa law, the City is allowed to collect a civil penalty of $1,500.00 for a second violation. The first violation was issued in January 17, 2013, and the City received the $300.00 penalty. The second violation was issued January 8, 2014. The City is requesting the approval an Order accepting the Acknowledgment/Settlement Agreement and check for $1,500.00. Expenditure Required: None Source of Funds Policy Issue Alternative Background Information: Mayor BUCK CLARK COUNCIL MEMBERS DAVID JONES Ward 1 CAROLYN COLE Ward 2 HAROLD GETTY Ward 3 QUENTIN M. HART Ward 4 RON WELPER Ward 5 BOB GREENWOOD At -Large STEVE SCHMITT At -Large GUY OF WATERLOO, IOWA CITY ATTOwNEY'S OFFICE 715 Mulberry St. • Waterloo, IA 60703 • (319) 291-4327 Fax (319) 291-41571 JAMES E. WALSH, JR., City Attorney • DAVID R ZELLHOEFEK, Assistant City Attorney February 10, 2014 Mayor Ernest G. Clark and City Council City Hall Waterloo, IA 50703 Re: B & B East, 1615 Bishop Avenue, Waterloo, Iowa 50703 — Tobacco Violation — Second Offense — Civil Penalty $1,500.00 Dear Mayor Clark and Council Members: I have received a signed Acknowledgment/Settlement Agreement regarding the violation of tobacco laws by the above -captioned permittee. A copy is enclosed for your records. I have also enclosed an Order foini accepting this Agreement in lieu of a public hearing and concluding this matter. Please approve and sign this Order at your next regularly scheduled meeting. The Original signed Order should then be sent to the permit holder. A copy should be returned to the City Attorney's Office. Thank you for your assistance. Please call me if you have any questions. Since ely, IautrlK✓�� avid R. Zellhoefer Assistant City Attorney DRZ.sia Enclosures: Signed Acknowledgment/Settlement Agreement and Order C: City Clerk file CITY WEBSITE: www.cityofwateriooiowa.com WE'RE WORKING FOR YOU! An Equal OppothutRy/Aftltmab4e Action Employes IN RE: B & B East ACKNOWLEDGMENT/ 1615 Bishop Avenue SETTLEMENT AGREEMENT Waterloo, Iowa 50703 SECOND VIOLATION I (we) hereby knowingly and voluntarily acknowledge that we have received the Notice of Hearing and the Complaint in the above case. I (we) hereby knowingly and voluntarily acknowledge the facts and allegations contained in the Complaint, attached hereto and incorporated herein by reference, and knowingly and voluntarily admit that the same are true and correct. I (we) hereby knowingly and voluntarily waive hearing, and submit to the statutory penalties prescribed by Iowa law. I (we) understand that this penalty will count as an official "Second Violation" of Iowa Code §453A.2 pursuant to Iowa Code §453A.22. I (we) understand that the penalty for this second violation is a civil penalty of One Thousand Five Hundred Dollars ($1,500.00) or a suspension of my (our) cigarette permit for thirty (30) days, beginning on the date that will be specified in the official City Order that I will receive. The above - captioned permit holder hereby waives all jurisdictional claims. c..cta,„, g • 41; Date: O i -_ \ Q 14. In accordance with Iowa Code §453A.22(2)(b), the above -captioned permittee chooses the following penalty: $1,500.00 fine 30 -day suspension NOTE: This must be signed by an individual cigarette permittee, or in the case of another business entity, by individual(s) who have authority to bind the entity. If you decide to sign this ACKNOWLEDGMENT/SETTLEMENT AGREEMENT and waive your appearance at a hearing, this document, properly signed and dated, as well as a check mark placed on the chosen penalty, should be returned to: David R. Zellhoefer, Assistant City Attorney, 715 Mulberry Street, Waterloo, Iowa, 50703. 3082 72-552J739 09 LINCOLN OV Cedar Falls, IA 50i www.MyLSB.cor H:#0R p 4r -e et) VP-eleativt- e003082" 1:07390 271: 900040477e Mayor BUCK CLARK COUNCIL MEMBERS DAVID JONES Ward 1 CAROLYN COLE Ward 2 HAROLD GETTY Ward 3 QUENfIN M. HART Ward 4 RON WELPER Ward 5 130E GREENWOOD At -Large STEVE SCHMITT At -Large CITY OF WATERLOO, IOWA CITY ATTORNEY'S OFFICE 715 Mulberry St. • Waterloo, IA 50703 • (319) 291-4327 Fax (319) 291-4571 JAMES E. WALSH, JR., City Attorney • DAVID R. ZELLHO} FH(, Assistant City Attorney January 27, 2014 B & B East 1615 Bishop Avenue Waterloo, Iowa 50703 Re: B & B East, 1615 Bishop Avenue, Waterloo, Iowa 50703 Dear Owner: The City of Waterloo has scheduled a hearing before the Waterloo City Council on the 24`x' day of February, 2014 in. Chambers, Second Floor, City Hall, 715 Mulberry Street, Waterloo, Iowa, 50703. The hearing complaint, which has been filed against you, is attached. If you or your representative fail to appear at this hearing, a decision may be rendered against you. You have the opportunity to be heard at this hearing and to be represented by an attorney at your own expense. The penalty for a second violation of §453A.2(1), selling, giving, or otherwise supplying any tobacco, tobacco products, or cigarettes to any person under eighteen years of age is either a mandatory civil penalty of 51.500.00 or a mandatory thirty -day cigarette permit suspension as prescribed by Iowa Code §453A.22(2)(b). The permittee may choose which penalty will be assessed. If you wish to settle this case in lieu of the public hearing, you may complete the attached Acknowledgment/Settlement Agreement, returning the original copy, properly signed and dated, to David R. Zellhoefer, Assistant•City Attorney, 715 Mulberry Street, Waterloo, Iowa, 50703, no later than ten (10) business days prior to the hearing date. Accepting and abiding by the terms of th.e Acknowledgment/ Settlement Agreement will satisfy the penalty for a second violation under Iowa Code §453A.22(2) and will conclude the matter. If you have any questions, you may reach me at (319) 291-4327. If you have obtained representation by an attorney in this matter, the attorney should contact me. Siicerely, id R. Zellhoefer ssistant City Attorney DRZ:sda Enclosures: Hearing Complaint, Acknowledgment/Settlement Agreement CITY WEBSITE; www.cityofwaterlooiowa.com WE'RE WORKING FOR YOU! An Equal Opportunity/Afflanative Action Employer IN RE: B & B East 1615 Bishop Avenue Waterloo, Iowa 50703 HEARING COMPLAINT SECOND VIOLATION The City of Waterloo hereby makes the following complaint against the above-named permittee: 1. Iowa Code §453A.2(1) provides that a person shall not "sell, give, or otherwise supply any tobacco, tobacco products, or cigarettes to any person under eighteen years of age." 2. Iowa Code §453A.22(2)(b) provides that if a permit holder or employee of a permit holder has violated Iowa Code §453A.2(1), the permit holder shall be assessed a civil penalty of One Thousand Five Hundred Dollars ($1,500.00) or a thirty -day cigarette permit suspension for a second violation of Iowa Code §453A.2(1) within two years. 3. On or about January 8, 2014, the permittee or an employee of the permittee sold cigarettes or tobacco products to a person under eighteen years of age. A copy of the Compliance Check and/or Criminal Conviction is attached and incorporated herein. 4. On January 17, 2013, the permittee was issued a sanction for a first violation of Iowa Code §453A.2. 5. Therefore, in accordance with Iowa law, the City Attorney requests the Waterloo City Council find a violation of the above -referenced sections of Iowa Code Chapter 453A and assess a civil penalty in the amount of One Thousand Five Hundred Dollars ($1,500.00) or a thirty -day cigarette permit suspension against B & B East, 1615 Bishop Avenue, Waterloo, Iowa 50703. Davi j . Ze hoefer Assistant City Attorney ipledge2id. TOBACCO ENFORCEMENT PROGRAM C.mp.nceCh ck Form Retailer: 6 City: LP/At' ^ (q FY 2014 Address: 1,5 e(.51,0, U� State: ZIP: ,0 ?def RESULTS (check one): Date Checked: / 4-19 Compliant Non -Compliant If Unable to Complete the Compliance Check (check one) ❑ Establishment has a VALID PERMIT but Does Not Sell Tobacco Permit Status Verified by City Clerk or County Auditor . Time Checked: j ❑ Establishment No Longer Holds a Valid Tobacco Permit ��� Unable ;to Complete _ (Not Applicable) ❑ Establishment is Out of Business Clerk Information: dale ❑ Female ❑ Establishment is designated as an "Unsatisfactory Condition" Unsatisfactory Condition":verifiedby ABD Tobacco Investigator First Name: ` Middle Initial: --11—� .�/ u - Officer Conducted a Walk -Through of the Premises (Explanation Required in Comments Section Below) ® if none of the above reasons apply, write reason and explaination / ` on the back of the form—see page 4 for reason list. ' }k I have issued a criminal citation to the clerk listed above for selling tobacco to a person under age eighteen. Iowa Code § 453A.2(1). "' �\\ (NOTE: If the compliance check result is Non -Compliant, a citation must be issued before your department may receive payment) Last Name: 1' 6-c 67 Case #:-- OFFICER INFORMATION: First Name: Middle Initial: Badge: 036 3 Department: W,-(4"�,^ /60 CONFIDENTIAL INFORMANT (CI): CI Age: 6 ❑ 17 CI Gender: Male CI Ethnicity: / RESULTS OF ATTEMPTED PURCHASE: Last Name: ❑ Female CI Number: 2 (Last 4 digits of Cis ID) White ❑ Asian ❑ African American ❑ Native American ❑ Hispanic ❑ Other Attempted Purchase Item: [ Cigarettes Age Requested? ❑ YES NCO ID Requested? ❑ YES [10 ❑ Smokeless Tobacco ❑ Other Tobacco Product COMMENTS: Page 10 PLAINTIFF: 0 State of Iowa County of: _BLAcxHAg D City of: WATERLOO No• 07 In the Courthouse at 316 E. 5th, Waterloo. IA vs. NAME: Defendant, Last First Address City State Zip F. SS/DL# State Co # '-` DL Class DL End DL Rest DOB " / '-', / Race Sex ,- Ht. Wt. The undersigned states that on or about ' / u --`: / '"-' at F ".`F DAM -0 PM defendant did unlawfully: Mo. Day Operate Motor Vehicle/Boat (describe) Middle CMV 0 Yes 0 No HazMat Plac. Req. 0 Yes 0 No US DOT# Reg. # State ? Year Upon a public highway at- r(> a , %' "`' Apo /7 10 3 Located in the county and state aforesaid and did theniand there commit the following offense: 0 Traffic „r0 Navigation 0 Snowmobile/ATV 0 Fish -Game 0 Parks DO NOT WRITE 1N THIS SPACE 1D Scheduled Vio/Fine Surcharge Court Costs Total Fine/Costs Violation DJ' $ 11 0 Road Construction Zone 0 Non -Scheduled Violation 0 Court Appearance Required (805.10) Reason: ❑ P.I. ❑ P.D. ($1000) Accident ❑ Fatal Accident ❑ Civil Damage Assessment Speed In Zone -Sec # DATA CODE Fed/Adm. Code I swear that the foregoing complaint is true and correct. 5 signature IA Code Local Ord. ID# Subscribed and sworn to before me by at Waterloo , Iowa this tµ' ` day of- 200,1 .---t=r- ---.. {_.Notary/other Court Date/Paid: If you must appeal'-iz} cilWdt ifyou choose to appear to answer a charge which does not require an appearance, report to the above named court on: z 1-1-,Z--- - -/ ' at s.1 --0AM DPM Mo. Day t Yr. NOTICE: Providing false information is a violation of Section 719.3 of the Code of Iowa and is punishable as an aggravated misdemeanor. My signature below is not a plea of guilty, but acknowledges all of the following: 1. I hereby swear and affirm that the information provided by me on this citation is true under penalty of providing false information. 2, I promise to appear in said court at said time and place, or I will comply with the provision on the top of the reverse side of the citation. is The following applies to simple misdemeanors only: ( _ • 3. I hereby give my unsecured appearance bond in the amount of dollars and enter my written appearance. I agreethat if I fail to appear in persdh ofby counsel to defend against the offense charged in this citation, the court is authorized to enter a cotrtviction and render judgment against me for the amount of my appearance bond in satisfaction of the lienalty and surcharge plus court costs. Signature bf Defendant uotop a 2IOM1f�i O1 OOO'vaod, o (Tumid aaAO" dFlta aSNaO ,LSI aana3UaS OOOVHOZ 0 IONIL1t OI CIIA0Id nkna4a asNariao IST xo tai OODVUO,L 0NIUJAO2I1 aax.OZdkta - asNadao IS! TO lun0J gPunaa' uutp 0 IA pU CN=John Q Public,O=JUDICIAL Certain details of case data are only shown to subscribers. You may logon at this time if you are a subscriber, or you may be become a subscriber by registering at this time. There is a $25.00 per month subscription fee. For exclusive use by the Iowa Courts © State of Iowa, All Rights Reserved V/N 00'0$ 2S 00.0 00*0 00'0 00'0 00'0 °Q.°°1 0009 BEFORE THE WATERLOO CITY COUNCIL IN RE: B & B East ORDER ACCEPTING 1615 Bishop Avenue ACKNOWLEDGMENT/SETTLEMENT Waterloo, Iowa 50703 AGREEMENT—SECOND VIOLATION tk On this /& day of , 2014, in lieu of a public hearing on the matter, the Waterloo City Council approves the attached Acknowledgment/Settlement Agreement between the above -captioned permittee and the City of Waterloo. Pursuant to the Agreement, IT IS THEREFORE ORDERED that: a civil penalty in the amount of One Thousand Five Hundred Dollars ($1,500.00) be assessed against the above -captioned permittee to be paid within thirty (30) days of the date of this Order. If permittee does not pay the civil penalty within thirty (30) days, then a thirty (30) day cigarette permit suspension be executed against the above - captioned permittee effective the 31st day after the date of this Order. This sanction will count as a Second Violation of Iowa Code §453A.2(1), pursuant to Iowa Code §453A.22(2)(b). ATTEST: Mayor Ernest G. Clark Suzy Scha s, City Clerk