3-42-110  Confiscation of illegal cigarettes and cigarette-vending machines.
   (a)   As an alternative to the filing of an action in the circuit court, the comptroller, the commissioner of business affairs and consumer protection, the superintendent of police and their representatives shall have the authority (1) to issue notices of violation, in accordance with Section 2-14-074, to any cigarette purveyor found in possession of unstamped or improperly stamped cigarette packages in violation of this chapter and (2) to seize and store all unstamped or improperly stamped cigarette packages together with any cigarette-vending machines dispensing those cigarette packages.
   If the purveyor is not the owner of the cigarette packages or cigarette-vending machines, within ten days of the issuance of a notice of violation pursuant to subsection (a) of this section, the department or the commissioner of business affairs and consumer protection shall notify by certified mail the cigarette purveyor and the owner of the cigarette packages or cigarette-vending machines, if the identity of the purveyor and owner is known or reasonably ascertainable, of the date, time and location of a hearing to determine whether the cigarette packages, at the time of issuance of the notice of violation, were unstamped or improperly stamped in violation of the provisions of this chapter.
   (b)   After issuing a notice of violation, the comptroller or the commissioner of business affairs and consumer protection shall institute an action with the department of administrative hearings which shall appoint an administrative law officer who shall conduct the hearing, no later than 45 days after the issuance of the notice of violation, to determine whether the cigarette packages at the time of issuance of the notice of violation, were unstamped or improperly stamped in violation of the provisions of this chapter. If the alleged violation is not contested or the administrative law officer determines by a preponderance of the evidence that any or all of the cigarette packages were unstamped or improperly stamped in violation of the provisions of this chapter, the administrative law officer shall enter an order requiring payment by the cigarette purveyor or the owner of the following penalty for cigarettes possessed in violation of Section 3-42-020: between $2,000.00 and $10,000.00, as well as $50.00 per package for a violation involving over forty packages, plus fees for the seizure and storage of any seized cigarette packages or cigarette-vending machines. Any penalty imposed for a violation of Section 3-42-020 shall be in addition to any penalty imposed for a violation of Section 3-42-025. If the administrative law officer determines a violation, all unstamped or improperly stamped cigarette packages seized under this section shall be forfeited to the city and subsequently destroyed or sold at public sale. Any money contained in a cigarette-vending machine seized under this section shall also be forfeited to the city, unless the administrative law officer determines that the evidence presented by the alleged violator at the hearing established that the money was not consideration for unstamped or improperly stamped cigarette packages. The cigarette purveyor and the owner of the unstamped or improperly stamped cigarette packages or cigarette- vending machines shall be jointly and severally liable for sanctions provided by this section.
   (c)   If the administrative law officer determines a violation, any cigarette-vending machine may be reclaimed, provided that the penalty and fees have been paid. After the expiration of the time during which judicial review of the city's actions may be sought, any cigarette-vending machines not so reclaimed may be disposed of by the department or the commissioner of business affairs and consumer protection as provided by law.
   (d)   The comptroller or the commissioner of business affairs and consumer protection shall have the authority to promulgate rules and regulations setting fees for seizure and daily storage. All fees and penalties imposed pursuant to this section shall constitute debts due and owing the city. The issuance or renewal of any license may be withheld as provided in Section 4-4-150 of this Code, as amended, for such indebtedness.
   (e)   Nothing in this section shall be construed to relieve any person from fine or imprisonment as provided in the uniform revenue procedures ordinance, Chapter 3-4 of this Code, as amended, or from an action to revoke or suspend a license as provided by Section 4-4-280 of this Code, as amended.
(Added Coun. J. 12-9-92, p. 25465; Amend Coun. J. 12-15-92, p. 27387; 5-4-94, p. 49311; 7-13-95, p. 4593; Amend Coun. J. 7-10-96, p. 24982; Amend Coun. J. 11-12-97, p. 56813; Amend Coun. J. 4-29-98, p. 66564, § 2; Amend Coun. J. 7-27-05, p. 53211, § 1; Amend Coun. J. 11-19-08, p. 47220, Art. V, § 5; Amend Coun. J. 11-16-11, p. 13798, Art. I, § 3; Amend Coun. J. 2-15-12, p. 20496, § 5; Amend Coun. J. 5-9-12, p. 27485, § 13*; Amend Coun. J. 12-9-15, p. 15481, § 1; Amend Coun. J. 12-14-16, p. 39210, § 2)
* Editor's note– Amendments made by Coun. J. 5-9-12, p. 27485, § 13, take effect after the expiration of all cigarette-vending machine operator licenses issued or renewed by the city's Commissioner of Business Affairs and Consumer Protection.