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HomeMy WebLinkAbout2005-01-29 Correspondence / TkOc IOWA CITY RANDUM DATE: 01/26/05 ~ 1/ TO: IOWA CITY AREA STATE LEGISLATORS FROM: ELEANOR M. DILKES, CITY ATTORNEY ~ RE: PAULA CITATIONS AND RECOMMENDED AMENDMENTS TO THE STATE CODE In light of your meeting on January 29, 2005 with Iowa City Council members, I want to bring to your attention three concerns faced by the City in prosecuting possession of alcohol under the legal age ("PAULA"). The City has adopted an ordinance regulating underage possession (Section 4-5-4 of the City Code) based on Section 123.47 of the State Code, and the concerns outlined below cannot be addressed without amendments to the State Code. Given that the issue of under-age drinking is very important to the Council, I thought that this would be an appropriate time to bring these matters to your attention. The first item is the amount of the fine. Presently, the fine for first offense PAULA is $100.00 plus a surcharge of $30.00 (30% of the fine) and court costs of $17.00 for a total of $147.00. The fine for a second or subsequent offense is $200.00 plus a surcharge of $60.00 and court costs of $17.00 for a total of $277.00. By way of comparison, because the City may assess a penalty as high as $500.00 for a simple misdemeanor, the "under 19" ordinance has a fine of $250.00 (and surcharge of $75.00 and costs of $17.00). As the City Council noted in its earlier communication to you, it is concerned that the PAULA fines are too Iow to have any significant deterrent effect. The City cannot raise the amount of the fines for violation of its ordinance without the fines in the state law first being increased. The second matter is somewhat complicated and arises from the fact that PAULAs are not "scheduled" violations under state law. Sections 805.8A, .8B, and .8C of the Iowa Code contain a list of violations that are "scheduled," which means that the penalty is specified in the statute, but also that the defendant is not required to make a personal appearance. Because PAULAs are not scheduled violations, an arrest warrant is issued if the defendant does not appear at the initial appearance or at the trial. If, however, PAULAs were scheduled violations, the judge would simply find the person guilty and enter a conviction. For example, nearly every traffic violation is scheduled, and if the person does not appear, no warrant is issued; the person is simply found guilty and fined. My staff and Captain Matt Johnson have had discussions about this with the Clerk of Court, the magistrates, and the County Attorney's office. In fact, the Johnson County Attorney requested that the Iowa County Attorneys Association make this issue one of its legislative priorities for this year. I believe that all concerned would benefit from this change. The only disadvantage of which I am aware is that a defendant will not be eligible for a "deferred judgment" because it is not available on scheduled violations. It has been our experience that very few people request deferred judgments on PAULAs whereas arrest warrants are issued nearly on a weekly basis. I am only suggesting that first offense PAULAs be made scheduled, not second or subsequent offenses. The reason for this is that the judge may order a suspension of a driver's license for a period up to one year upon a conviction for PAULA second. In my opinion, this is a good deterrent, and if PAULA seconds were scheduled offenses, then the license suspension sanction would either have to be repealed or amended to provide for a specified number of days. Third, although state law allows for the suspension of a license for a PAULA second, Magistrate Goddard has ruled that a municipality does not have the home rule authority to adopt an identical sanction. The City has appealed the decision, but I believe the best resolution is a code amendment that specifically allows cities to adopt an ordinance providing for the suspension of a license in the same manner as the state code allows. Doing so would not subject a person to any greater sanction because the person can currently be charged under the state code and have the license suspended. The City is only requesting that municipalities have this same option if the charge is brought under a local ordinance. Enclosed is draft language to amend the Iowa Code to increase the fines for PAULAs, to make first offense PAULAs scheduled violations, and to clarify that a municipality may provide for the suspension of a license in its PAUl_,& ordinance. Enclosures Copy to: City Council-w/enc. Susan Judkins, Director of Governmental Affairs, Iowa League of Cities - w/enc. Bill F. Sueppel, Counsel, Iowa League of Cities - w/enc. Lynn Walding, Administrator, Alcoholic Beverages Division - w/enc. Stephen J. Atkins, City Manager-w/enc. Dale Helling, Assistant City Manager-w/enc. Marian K. Karr, City Clerk-w/enc. R.J.Winkelhake,.City Police Chief-w/enc. Matt Johnson, Captain Iowa City Police Dept.-w/enc. J. Patrick White, Johnson Co. Attorney-w/enc. Lodema Berkley, Johnson Co. Clerk of Court-w/enc. PROPOSED AMENDMENTS TO THE CODE OF IOWA RE: PAULA Purpose of Proposed Amendment: To increase the fine amount for first offense PAULAs and second or subsequent offense PAULAs. · Section 123.47 subsection 3. 3. A person who is under legal age, other than a licensee or permittee, who violates this section regarding the purchase of or attempt to purchase alcoholic liquor, wine, or beer, or possessing or having control of alcoholic liquor, wine, or beer, commits a simple misdemeanor punishable by a fine of ~ * dollars for the first offense. A second or subsequent offense shall be a simple misdemeanor punishable by a fine ef twe-hucm~ * dollars and the suspension of the person's motor vehicle operating privileges for a period not to exceed one year. The court may, in its discretion, order the person who is under legal age to perform community service work under section 909.3A, of an equivalent value to the fine imposed under this section. However, if the person who commits the violation of this section is under the age of eighteen, the matter shall be disposed of in the manner provided in chapter 232. [Note: The maximum fine for a simple misdemeanor is $500.00.] Purpose of Proposed Amendment: To make first offense possession of alcohol under the legal age (PAULA) a scheduled violation. · Section 805.8C subsection 2. 2. Alcoholic beverage violations. For violations of section 123.49, subsection 2, paragraph "h", the scheduled fine for a licensee or permittee is one thousand five hundred dollars, and the scheduled fine for a person who is employed by a licensee or permittee is five hundred dollars. For violations of section 123.47, subsection 2, the scheduled fine is hundred dollars for the first offense. [Note: The present amount is $100.00, but the amount in this amendment would need to reflect the new amount of the fine should it be amended as urged above.] Purpose of Proposed Amendment: Iowa City by ordinance regulates underage possession in a manner identical to the state code provision. However, a Johnson County magistrate has ruled that the City's ordinance violates home rule because section 364.3(2) of the Iowa Code does not specifically allow for suspending licenses. While that ruling is being appealed, the best solution is to clarify the state code provisions to allow cities to enact an ordinance for second offense possession of alcohol under the legal age (PAULA) that includes the suspension of a driver's license for up to one (1) year. Section 123.47 subsection 3. 3. A person who is under legal age, other than a licensee or permittee, who violates this section regarding the purchase of or attempt to purchase alcoholic liquor, wine, or beer, or possessing or having control of alcoholic liquor, wine, or beer, commits a simple misdemeanor punishable by a fine of one hundred dollars for the first offense. A second or subsequent offense shall be a simple misdemeanor punishable by a fine of two hundred dollars and the suspension of the person's motor vehicle operating privileges for a period not to exceed one year. A city that adopts by ordinance a provision identical to subsection 2 may provide that a second or subsequent offense shall be punishable by the suspension of the person's motor vehicle operating privileges for a period not to exceed one year. The coud may, in its discretion, order the person who is under legal age to perform community service work under section 909.3A, of an equivalent value to the fine imposed under this section. However, if the person who commits the violation of this section is under the age of eighteen, the matter shall be disposed of in the manner provided in chapter 232. Section 364.3 subsection 2. 2. A city shall not provide a penalty in excess of a five hundred dollar fine or in excess of thirty days imprisonment for the violation of an ordinances, unless specifically authorized by state law. An amount equal to ten percent of all fines collected by cities shall be deposited in the account established in section 602.8108. However, one hundred percent of all fines collected by a city pursuant to section 321. 236, subsection 1, shall be retained by the city. The criminal penalty surcharge required by section 911.1 shall be added to a city fine and is not a part of the city's penalty.