A. Misdemeanor Prosecution: Nothing in this section shall prohibit the city from seeking prosecution as a misdemeanor for any alleged violation of this chapter. It is not necessary that criminal charges be brought in order to support a determination of a license violation nor does the dismissal or acquittal of such a criminal charge operate as a bar to adverse license actions under this section.
B. Violations:
1. Notice: A person violating this chapter may be issued, either personally or by mail, a citation that sets forth the alleged violation and that informs the alleged violator of his or her right to a hearing on the matter.
2. Hearings:
a. Upon issuance of a citation, a person accused of violating this chapter may request in writing a hearing on the matter. Hearing requests must be made within ten (10) business days of the issuance of the citation and delivered to the city clerk or other designated city officer. Failure to request a hearing within ten (10) business days of the issuance of the citation will terminate the person's right to a hearing.
b. The city clerk or other designated city officer shall set the time and place for the hearing. Written notice of the hearing time and place shall be mailed or delivered to the accused violator at least ten (10) business days prior to the hearing. Such hearing shall be open to the public.
3. Hearing Officer: A city official designated by the city council shall serve as the hearing officer. The hearing officer must be an impartial employee of the city or an impartial person retained by the city to conduct the hearing.
4. Decision:
a. Hearing Officer Decision: A decision shall be issued by the hearing officer within ten (10) business days. If the hearing officer determines that a violation of this chapter did occur, that decision, along with the hearing officer's reasons for finding a violation and the penalty to be imposed under subsection C of this section, shall be recorded in writing, a copy of which shall be provided to the city and the accused violator by in person delivery or mail as soon as practicable. Likewise, if the hearing officer finds that no violation occurred or finds grounds for not imposing any penalty, those findings shall be recorded and a copy provided to the city and the acquitted accused violator by in person delivery or mail as soon as practicable.
b. Costs: If the citation is upheld by the hearing officer, the city's actual expenses in holding the hearing up to a maximum of one thousand dollars ($1,000.00) shall be paid by the person requesting the hearing.
c. Decision Final: The decision of the hearing officer is final.
5. Appeals: Appeals of any decision made by the hearing officer in accordance with state law.
6. Continued Violation: Each violation, and every day in which a violation occurs or continues, shall constitute a separate offense.
C. Administrative Penalties:
1. Licensees: Any licensee found to have violated this chapter, or whose employee shall have violated this chapter, shall be charged a minimum administrative fine of seventy five dollars ($75.00) for a first violation of this chapter; two hundred dollars ($200.00) for a second offense at the same licensed premises within a twenty four (24) month period; and two hundred fifty dollars ($250.00) for a third or subsequent offense at the same location within a twenty four (24) month period. In addition, after the second or subsequent offenses, the license shall be suspended for a length of time determined by city council; not less than one day for the second offense and not less than seven (7) consecutive days for the third and subsequent offenses within a twenty four (24) month period.
2. Other Individuals: Other individuals, other than minors regulated by subsection C3 of this section, found to be in violation of this chapter shall be charged an administrative fine of fifty dollars ($50.00).
3. Minors: Minors found in unlawful possession of or who unlawfully purchases or attempts to purchase, tobacco, tobacco products, tobacco related devices, or nicotine or lobelia delivery devices, shall be subject to an administrative fine, or may be subject to tobacco related education classes, diversion programs, community services, or another penalty that the city believes will be appropriate and effective. The administrative fine or other penalty shall be established by city council resolution upon the city council's consultation with interested parties of the courts, educators, parents and children to determine an appropriate penalty for minors in the city. This administrative fine or other penalty may also be established by the schedule of fees, as it may be amended from time to time. (Ord. 2015-08, 11-2-2015, eff. 1-1-2016)