General Assembly Update – Week 3

The General Assembly was in full swing as the legislative session wrapped up its third week. With the deadline to file bills behind us, we now know the full universe of bills for this session. This year, 2,525 pieces of legislation have been filed, with 1,699 bills filed in the House and 826 in the Senate. As of last week, 107 bills have failed, 24 bills have been continued to next session, and 2320 bills are still under consideration.

In addition to legislation being heard at a rapid pace, a major development came in the form of judicial appointments last week. The stalemate on the State Corporation Commission vacancies finally came to an end, after over a year. Sam Towell and Kelsey Bagot were elected to fill the two open seats on the State Corporation Commission. The SCC is a major regulatory body that is responsible for regulating public utilities, banking, business, and insurance in Virginia.

Below you will find a breakdown of legislation that was acted on over the last week. Your Virginia Retail Federation team will continue to keep you informed throughout the 2024 Session on all issues that impact your business.

ORC, Sales Tax Holiday, Sales Tax Increase, Paid Leave, Minimum Wage/Tipped Wage, Unemployment Compensation/Workers Comp, Cannabis, Consumer Protection, Mandates, ABC, Tobacco, Miscellaneous

Jump to these topics.

ORC:

HB 209 – ORC

House Courts of Justice Subcommittee recommended laying on the table (defeated) with letter to Crime Commission about conducting a study on the issue 8-Y 0-N

• Repeals the crime of organized retail theft and the Organized Retail Crime Fund.

Sales Tax Holiday:

HB 25 – Sales Tax Holiday

Passed the House 98-Y 0-N

SB 116 – Sales Tax Holiday

Passed the Senate 37-Y 0-N

• Establishes an annual retail sales and use tax holiday that takes place on the first full weekend in August beginning on August 1, 2025. During such weekend, state retail sales and use tax will not apply to certain (i) school supplies, (ii) clothing and footwear, (iii) qualified products designated as Energy Star or WaterSense, (iv) portable generators, or (v) hurricane preparedness equipment.

Sales Tax Increase:

SB 14 – Sale and Use tax for school construction

Reported from Senate Finance Committee 10-Y 4-N, now on the Floor of the Senate

• Additional local sales and use tax to support schools; referendum. Authorizes all counties and cities to impose an additional local sales and use tax at a rate not to exceed one percent with the revenue used only for capital projects for the construction or renovation of schools if such levy is approved in a voter referendum. Under current law, only Charlotte, Gloucester, Halifax, Henry, Mecklenburg, Northampton, Patrick, and Pittsylvania Counties and the City of Danville are authorized to impose such a tax.

SB 146 – Prince Edward County School construction Sales Tax increase Bill

Passed the Senate 27-Y 11-N

• Sales tax; additional local tax for schools; Prince Edward County. Adds Prince Edward County to the list of localities that are authorized to impose an additional local sales tax at a rate not to exceed one percent in order to provide revenue for the construction or renovation of schools.

Paid Leave:

HB 737 – Paid Family and Medical Leave Insurance Program

House Labor and Commerce Subcommittee recommended reporting and referring to House Appropriations Committee 5-Y 3-N

• Requires the Virginia Employment Commission to establish and administer a paid family and medical leave insurance program with benefits beginning January 1, 2027. Under the program, benefits are paid to covered individuals, as defined in the bill, for family and medical leave. Funding for the program is provided through premiums assessed to employers and employees beginning January 1, 2026. The bill provides that the amount of a benefit is 80 percent of the employee’s average weekly wage, not to exceed 80 percent of the state weekly wage, which amount is required to be adjusted annually to reflect changes in the statewide average weekly wage. The bill caps the duration of paid leave at 12 weeks in any application year and provides self-employed individuals the option of participating in the program.

SB 507 – Paid Leave for Grocery and Health care providers

Reported from Senate Commerce and Labor Committee and referred to Senate Finance and Appropriations Committee 8-Y 6-N

• Requires employers to provide paid sick leave to health care providers and grocery store workers. Under current law, employers are only required to provide paid sick leave to certain home health workers. The bill removes requirements that workers work on average at least 20 hours per week or 90 hours per month to be eligible for paid sick leave. The bill provides that certain health care providers may waive their right to accrue and use paid sick leave and provides an exemption for employers of certain other health care providers. The bill requires the Department of Labor and Industry to develop guidelines for retail employers that sell groceries to provide sick leave and to publish such guidelines by December 1, 2024. The provisions of the bill other than the requirement for the Department of Labor and Industry to develop guidelines have a delayed effective date of January 1, 2025.

Minimum Wage/Tipped Wage:

HB 325 – Minimum Wage and overtime – civil actions

House Labor and Commerce Subcommittee recommended reporting 5-Y 3-N

• Provides that an employer that violates minimum wage or overtime provisions is liable to the employee for the applicable remedies, damages, or other relief available in an action brought pursuant to the civil action provisions currently available for the nonpayment of wages. Such provisions currently available provide that an employee may bring an action in a court of competent jurisdiction to recover payment of the wages, and the court is required to award the wages owed, an additional equal amount as liquidated damages, plus prejudgment interest thereon, and reasonable attorney fees and costs. If the court finds that the employer knowingly failed to pay wages to an employee, the court is required award the employee an amount equal to triple the amount of wages due and reasonable attorney fees and costs. Such actions are required to be commenced within three years after the cause of action accrued.

HB 1 – Minimum Wage Increase

Reported from House Labor and Commerce Committee 12-Y 10-N and referred to House Appropriations Committee. House Appropriations Subcommittee recommended reporting 5-Y 3-N

• Increases the minimum wage from the current rate of $12.00 per hour to $13.50 per hour effective January 1, 2025, and to $15.00 per hour effective January 1, 2026. The bill satisfies a reenactment clause included in Chapters 1204 and 1242 of the Acts of Assembly of 2020.

HB 335 – Tipped Wage

Reported from House Labor and Commerce Committee, with substitute, 12-Y 9-N and referred to House Appropriations Committee.

• Provides that an employer shall increase the amount paid to its tipped employees by an amount determined by the employer in accordance with the federal Fair Labor Standards Act and that, notwithstanding any other provision of law, a tipped employee who regularly performs services in the course of his employment for which there is no reasonable expectation of receiving tips shall receive an amount not less than the minimum wage for the time that he performs such services. The bill provides that tipped employees shall receive a cash wage of not less than $3.50 per hour starting on January 1, 2025. Starting on January 1, 2026, a tipped employee shall receive a cash wage of not less than $4.75 per hour, and starting on January 1, 2027, the amount of cash wage shall be not less than $6.00 per hour. Starting January 1, 2028, tips shall be excluded from any determination of wage paid to a tipped employee and the amount paid to such employee shall be not less than the minimum wage.

Unemployment Compensation/Workers Comp:

HB 14 – Employer’s failure to respond to requests for Information

House Labor and Commerce Subcommittee recommended reporting (with substitute) and referring to House Appropriations Committee 8-Y 0-N

• Provides that an employer’s failure to respond timely or adequately to a written request for information relating to an unemployment claim results in a waiver of all of such employer’s rights in connection with the claim, including participation and appeal rights, unless such employer demonstrates that good cause exists for such failure. The bill requires the Virginia Employment Commission to provide written notice for each instance of untimely or inadequate employer response to such requests and specifies that such notice may be delivered through the Employer Self-Service Tax System website maintained by the Commission. The bill also requires the Commission to provide each employer with information regarding deadlines for timely and adequate responses to such requests. Such provisions of the bill apply to erroneous payments established on or after July 1, 2024. The bill also prohibits a deputy designated by the Commissioner to adjudicate unemployment claims from examining or considering facts contained within an employer’s untimely or inadequate response and requires that information or evidence from an employer or third party must be shared with the claimant, who must also be provided a reasonable opportunity to review and respond to such information or evidence. The bill requires such deputy to provide the reasoning behind the decision, as described in the bill, and a short statement of case-specific facts material to the determination together with any notice of determination upon a claim. This bill is a recommendation of the Commission on Unemployment Compensation.

HB 205 – Workers Comp – prompt payment, limitation on claims

Reported from House Labor and Commerce Committee 17-Y 4-N, now on the Floor of the House   

• Prohibits an employer or workers’ compensation carrier from seeking recovery of a payment made to a health care provider for health care services rendered to a claimant, unless such recovery is sought less than one year from the date payment was made to the health care provider. Under current law, such prohibition only applies to services rendered after July 1, 2014.
  The bill also prohibits a health care provider from submitting a claim to the Workers’ Compensation Commission contesting the sufficiency of payment for health care services rendered to a claimant unless such claim is filed within one year of the date the last payment is received by the health care provider. Under current law, such prohibition only applies to services rendered after July 1, 2014.

HB 531 – Workers Compensation; injuries caused by repetitive and sustained physical stressors

House Labor and Commerce Subcommittee recommended reporting and referring to House Appropriations Committee 5-Y 3-N

SB 520 – Workers Compensation; injuries caused by repetitive and sustained physical stressors

Reported from Senate Commerce and Labor Committee and referred to Senate Finance and Appropriations Committee 8-Y 6-N

• Provides that, for the purposes of the Virginia Workers’ Compensation Act, “occupational disease” includes injuries or diseases from conditions resulting from repetitive and sustained physical stressors, including repetitive and sustained motions, exertions, posture stresses, contact stresses, vibrations, or noises. The bill provides that such injuries or diseases are covered under the Act and that such coverage does not require that such repetitive or sustained physical stress occurred over a particular time period, provided that the time period over which such physical stress occurred can be reasonably identified.

HB 974 – Workers Compensation – presumption that certain injuries arose out of employment

House Labor and Commerce Subcommittee recommended reporting, with amendments, 5-Y 3-N

• Provides that in any claim for workers’ compensation, where the employee suffers an unexplained fall in the course of employment, it shall be presumed that the fall arose out of the employment, unless such presumption is overcome by a preponderance of competent evidence to the contrary.

SB 241 – Workers’ Comp – Notice of right to dispute claim

Reported from Senate Commerce and Labor Committee 13-Y 0-N 1-A, now on the Senate Floor

• Requires that when an employee’s workers’ compensation claim is denied, an employer or insurer shall include in its letter denying benefits a notice that the employee has a right to dispute the claim denial through the Virginia Workers’ Compensation Commission.

SB 382 – Unemployment Compensation; collection of overpayments; limitations

Reported from Senate Commerce and Labor Committee, with amendments, and referred to Senate Finance and Appropriations Committee 14-Y 0-N

• Provides that collection activities for an overpayment, provided that such overpayment was not caused by fraud on the part of the claimant, shall be suspended and that the Virginia Employment Commission shall determine as uncollectable and discharge the overpayment if it remains unpaid after the earliest of the following: (i) after the expiration of three years from the last day of the benefit year in which the overpayment was made, (ii) immediately upon the death of the claimant, or (iii) upon the claimant’s discharge in bankruptcy occurring subsequently to the determination of payment.

SB 536 – Unemployment Compensation; continuation of benefits, repayment of overpayments

Reported from Senate Commerce and Labor Committee, with substitute, and referred to Senate Finance and Appropriations Committee 14-Y 0-N

• Makes permanent provisions of the Code that expired on July 1, 2022, relating to unemployment compensation. The bill provides that when a claimant has had a determination of initial eligibility for unemployment benefits, as determined by the issuance of compensation or waiting-week credit, payments shall continue, subject to a presumption of continued eligibility, until a determination is made that provides the claimant notice and an opportunity to be heard. The bill requires the Virginia Employment Commission to waive the obligation to repay any overpayment if (i) the overpayment was made without fault on the part of the individual receiving benefits and (ii) requiring repayment would be contrary to equity and good conscience. Conditions for when overpayments are considered “without fault on the part of the individual” are outlined in the bill.
  The bill further provides that the Commission shall notify each person with an unpaid overpayment of benefits that he may be entitled to a waiver of repayment and provide 30 days to request such a waiver. This applies to outstanding overpayments established for claim weeks commencing on or after March 15, 2020. The bill allows the Commission to suspend or forgo referring any unpaid overpayment of benefits established since March 15, 2020, to the collections process indefinitely. The bill specifies that all costs that result from implementing provisions of the bill shall be incurred by federal administrative grants and the general fund.
  Finally, the bill adds overpayments that the Commission has waived the requirement to repay to the list of situations where specific employers are not responsible for benefit charges, unless the erroneous payment was made because the employer failed to respond timely or adequately to a written request by the Commission for information relating to the claim.

Cannabis:

HB149 – Medicinal use of Cannabis oil – employee protections

On the floor of the house

• Amends the provision that prohibits an employer from discriminating against an employee for such employee’s lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease, with certain exceptions, by specifying that such use must conform to the laws of the Commonwealth and that such protections extend to the employees of the Commonwealth and other public bodies.

SB 448 – Cannabis control; establishes a framework for creation of a retail marijuana market, penalties (Incorporates SB 423)

Reported from Senate Rehabilitation and Social Services Committee with a Substitute 10-Y 5-N

• Cannabis control; retail market; penalties. Establishes a framework for the creation of a retail marijuana market in the Commonwealth, which would be administered by the Virginia Cannabis Control Authority. The bill allows the Authority to begin issuing marijuana licenses on July 1, 2024, but provides that no marijuana sales may occur prior to January 1, 2025.

Consumer Protection:

HB 228 – Consumer Protection Act – Recycling info on products

House Labor and Commerce Subcommittee recommended reporting an referring to House Appropriations Committee 5-Y 3-N

• Prohibits the sale or offering for sale of any product that indicates on the product’s container or packaging that such container or packaging is recyclable unless such container or packaging is made out of a material that is recyclable under a majority of regional and local waste management plans. The bill requires the Virginia Waste Management Board to maintain a list of all materials that are recyclable under a majority of regional and local waste management plans adopted and to make such list available on the Department of Environmental Quality’s website.

HB 707 – Consumer Data Protection Act – Protections for Children

House Labor and Commerce Subcommittee recommended reporting, with substitute, 8-Y 0-N

• Prohibits a data controller from processing personal data of a known child (i) for the purposes of targeted advertising, the sale of such personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer; (ii) for any processing purpose other than the processing purpose that the controller disclosed at the time such controller collected such personal data or that is reasonably necessary for and compatible with such disclosed purpose unless such processing is reasonably necessary to provide an online service, product, or feature; or (iii) for any processing purpose without first obtaining consent from the child’s parent or legal guardian.
  The bill prohibits a data controller from collecting precise geolocation data from a known child unless (a) such precise geolocation data is reasonably necessary for the controller to provide such online service, product, or feature; (b) the controller provides to the known child a signal indicating that such controller is collecting such precise geolocation data; and (c) the controller obtains consent from the child’s parent or legal guardian.
  Additionally, the bill requires each data controller that, on or after January 1, 2025, offers any online service, product, or feature directed to consumers whom such controller has actual knowledge are children to conduct a data protection assessment for such online service, product, or feature that addresses (1) the purpose of such online service, product, or features; (2) the categories of known children’s personal data that such online service, product, or feature processes; and (3) the purposes for which such controller processes known children’s personal data with respect to such online service, product, or feature.

HB 744 – Consumer Protection – automatic renewal or continuous service offers

House Labor and Commerce Subcommittee recommended reporting with a substitute  8-Y 0-N

• Requires a supplier making automatic renewal or continuous service offers that automatically renew after more than 30 days and extend the automatic renewal or continuous service offer for more than a period of 12 months to notify the consumer of the option to cancel no less than 30 days and no more than 60 days before the cancellation deadline or the end of the current contract term.

Mandates:

HB 160 – Veterans; workplace poster for benefits and services

Reported from House Labor and Commerce Committee 21-Y 0-N, now on the floor of the House

• Department of Labor and Industry; workplace poster for veterans benefits and services. Directs the Department of Labor and Industry, in consultation with the Department of Veterans Services, to create a poster describing benefits and services available to veterans and allows employers to request and display such poster in the workplace. The bill enumerates a minimum group of resources the poster shall include, including (i) Department of Veterans Services’ programs, contact information, and website address; (ii) substance abuse and mental health treatment resources; (iii) educational, workforce, and training resources; (iv) tax benefits; (v) eligibility for unemployment insurance benefits; (vi) legal services; and (vii) the U.S. Department of Veterans Affairs Veterans Crisis Line.

HB 474 – Restroom Access Act

House Labor and Commerce Subcommittee recommended reporting, with amendments, 7-Y 0-N

• Requires a retail establishment that does not have a public restroom but has an employee toilet facility to allow any customer with an eligible medical condition, defined in the bill as Crohn’s disease, ulcerative colitis, irritable bowel syndrome, or any other medical condition that requires immediate access to a toilet facility, to use such employee toilet facility during normal business hours if certain conditions are met. A customer who suffers loss as a result of a violation may bring an action to recover damages not to exceed $100.

HB 569 – Employment Discrimination – employee notification of federal and state statute of limitations

House Labor and Commerce Subcommittee recommended reporting 5-Y 3-N

• Requires an employer who receives an employee complaint alleging sexual assault, harassment, or any other form of discrimination for which the employee may seek enforcement by the U.S. Equal Employment Opportunity Commission (EEOC) or the Office of the Attorney General to notify such employee that a charge may be filed with the EEOC or the Office of the Attorney General within 300 days after the alleged unlawful discriminatory practice occurred. The bill also requires an employer to provide this information as part of any new employee training provided at the commencement of employment or anti-discrimination training provided to an employee.

HB 770 – Retaliatory Action Against Employee Prohibited – Remedies Available

House Labor and Commerce Subcommittee recommended reporting 5-Y 3-N

• Provides that a violation of certain provisions regarding retaliatory action against employees may be alleged in a court of competent jurisdiction within one year of the employer’s final prohibited retaliatory action. The bill states that in such cases, treble damages may be awarded if such violation was willful.

HB 990– Employer seeking wage or salary history of prospective employees; prohibited

House Labor and Commerce Subcommittee recommended reporting 5-Y 3-N

SB 370 – Employer seeking wage or salary history of prospective employees; prohibited

Reported from Senate Commerce and Labor Committee, with amendment, and referred to Senate Finance and Appropriations Committee 9-Y 6-N

• Prohibits a prospective employer from (i) seeking the wage or salary history of a prospective employee; (ii) relying on the wage or salary history of a prospective employee in determining the wages or salary the prospective employee is to be paid upon hire; (iii) relying on the wage or salary history of a prospective employee in considering the prospective employee for employment; (iv) refusing to interview, hire, employ, or promote a prospective employee or otherwise retaliating against a prospective employee for not providing wage or salary history; and (v) failing or refusing to disclose in each public and internal posting for each job, promotion, transfer, or other employment opportunity the wage, salary, or wage or salary range. The bill establishes a cause of action for an aggrieved prospective employee or employee and provides that an employer that violates such prohibitions is liable to the aggrieved prospective employee or employee for statutory damages between $1,000 and $10,000 or actual damages, whichever is greater, reasonable attorney fees and costs, and any other legal and equitable relief as may be appropriate. The bill also provides for civil penalties for violations not to exceed $1,000 for a first violation, $2,000 for a second violation, and $4,000 for a third or subsequent violation.

ABC:

HB 522 – ABC; Advertisements

Reported from House General Laws Committee 21-Y 1-N

SB 182 – ABC, Advertisements

Passed the Senate 40-Y 0-N

• Directs the Board of Directors of the Virginia Alcoholic Beverage Control Authority to promulgate regulations that prescribe the terms and conditions under which manufacturers, brokers, importers and wholesalers may advertise and promote alcoholic beverages via the Internet, social media, direct-to-consumer electronic communication, or other electronic means.

HB 688 – ABC sale and delivery of mixed beverages and pre-mixed wine off-premises

Reported from House General Laws Committee 20-Y 2-N

SB 635 – ABC sale and delivery of mixed beverages and pre-mixed wine off-premises

Reported from Senate Rehabilitation and Social Services Committee 15-Y 0-N

• Repeals the July 1, 2024, sunset on provisions that allow (i) distillers that have been appointed as agents of the Board of Directors of the Virginia Alcoholic Beverage Control Authority, mixed beverage restaurant licensees, and limited mixed beverage restaurant licensees to sell mixed beverages for off-premises consumption and (ii) farm winery licensees to sell pre-mixed wine for off-premises consumption. The bill also repeals, effective July 1, 2026, third-party delivery licenses. The bill requires the Authority to convene a work group to review third-party delivery licenses and report its findings and recommendations to the Chairmen of the House Committee on General Laws and the Senate Committee on Rehabilitation and Social Services by November 15, 2024.

HB 1050 – ABC; confectionery mixed beverage retail license created

House General Laws subcommittee recommended laying on the table (defeated) 4-Y 3-N

• Creates a confectionery mixed beverage retail license that authorizes the licensee to prepare and sell on the licensed premises for on-and-off premises consumption confectionery that contains five percent or less alcohol by volume. The bill provides that any alcohol contained in such confectionery shall not be in liquid form at the time of sale, unless such confectionery is a frozen dessert, as defined in the bill. The bill also sets the state and local license fee for such confectionery license and repeals the provisions of alcoholic beverage control law that created an off-premises wine and beer confectionery license.

SB 168 – ABC food to beverage ratio

Passed the Senate 40-Y 0-N

• Reduces the current 45 percent food-to-beverage ratio for certain mixed beverage licensees. The bill requires that a mixed beverage restaurant, caterer’s, or limited caterer’s licensee meet or exceed the following: (i) for such licensees with monthly food sales of at least $4,000 but less than $10,000, the food-to-beverage ratio shall be 35 percent and (ii) for such licensees with monthly food sales of at least $10,000, there shall be no food-to-beverage ratio requirement imposed.

SB 416 – ABC Tied House Exception

Stricken at request of the Patron

• Allows a manufacturer, bottler, broker, importer, or wholesaler to sponsor or provide support, including equipment, staff, financial, and other support, for a special event for which a nonprofit organization has been issued a banquet license and partners with a governmental entity that holds a mixed beverage caterer’s license, provided that the mixed beverage caterer’s license held by the governmental entity is not used in coordination with such special event.

SB 658 – ABC, Timeline for Summary Suspension

Reported from Senate Rehabilitation and Social Services Committee 15-Y 0-N

• Provides that when special agents of the Board of Directors of the Virginia Alcoholic Beverage Control Authority are conducting an initial investigation for purposes of summary suspension and the 48-hour time limit for such initial investigation expires on a Saturday, Sunday, or legal holiday, the special agents may submit their findings from such initial investigation any time prior to the close of business on the next day that is not a Saturday, Sunday, or legal holiday.

Tobacco:

HB 947 – Comprehensive Plan; vape shops near schools

Reported from House Counties, Cities and Towns Committee 20-Y 0-N

• Requires a locality, during any amendment to its comprehensive plan that takes place after July 1, 2024, to incorporate into its comprehensive plan strategies to limit vape shops near schools for the purpose of reducing use of nicotine vapor products by youth.

Miscellaneous:

HB 47 – Invasive Plant Species – requirements for retail sales

Reported from Committee 14-Y 8-N, now on the Floor of the House

• Requires, for the retail sale of any invasive plant species on a list established by the Department of Conservation and Recreation, such plant be accompanied by conspicuous signage that identifies the plant as invasive and includes the words “Plant with caution: invasive plant species. May cause environmental harm. Ask about alternatives.”

HB 644 – Gas-powered leaf blowers; local prohibition or regulation, civil penalty

Reported from House Counties, Cities and Towns Committee 11-Y 9-N

• Provides that any locality may by ordinance prohibit or regulate the use of gas-powered leaf blowers. The ordinance may include provisions for a civil penalty.

HB 1035 – Places of public accommodation; possession and administration of epinephrine

Reported from House Health and Human Services Committee 21-Y 1-N

• Permits every place of public accommodation, defined in relevant law as all places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, or accommodations, to make epinephrine available for administration and permits any employee of such place of public accommodation who is authorized by a prescriber and trained in the administration of epinephrine to possess and administer epinephrine to a person present in such place of public accommodation believed in good faith to be having an anaphylactic reaction. Current law limits such permission to every public place, defined in relevant law as any enclosed, indoor area used by the general public, and any employee of such public place.

HB 1165 – Persons with disabilities; adds definitions related to rights

Reported from House health and Human Services 22-Y 0-N

• Adds definitions related to the rights of persons with disabilities to relevant law. The bill defines “path of travel,” “place of public accommodation,”” “public entity,” “private entity,” and “readily achievable.” The bill requires places of public accommodation to ensure that barriers to accessibility are removed when the removal is readily achievable.

HB 1167 – English Ivy; local prohibition on sale; civil penalty

House Agriculture, Chesapeake and Natural Resources subcommittee recommended reporting 7-Y 3-N

• Authorizes any locality to adopt an ordinance prohibiting the sale of English ivy, with violations punishable by a civil penalty not to exceed $50 for a first violation and not to exceed $200 for a subsequent violation within 12 months.