NY State Senate Bill 2009-S2324

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Feb 18, 2009	referred to health

2009-S2324 (ACTIVE) - Details

See Assembly Version of this Bill:: A1833
Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §1399-ll, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2011-2012: S2170, A1589
2013-2014: S5215, A365

2009-S2324 (ACTIVE) - Summary

Relates to penalties for the illegal shipment of cigarettes and the authority of state and local authorities to bring actions to recover civil fines for such violations.

2009-S2324 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2324

 TITLE OF BILL :

An act to amend the public health law, in relation to the shipment of
cigarettes


 SUMMARY OF PROVISIONS :

This bill would amend the Public Health Law provisions related to the
shipment of cigarettes by allowing local enforcement and injunctive
relief, and by providing clarifying language so that government
employees may conduct sting operations.

 JUSTIFICATION :

The State's landmark cigarette shipment statute, which effectively
prohibits the retail sale of cigarettes through the mail or common
carriers, has withstood multiple attacks in courts. The statute
services both public health purposes of keeping cigarettes away from
minors and revenue integrity purposes by ensuring that taxes on
cigarettes are paid.

These amendments strengthen the statue in several ways. First, the
current wording of subdivision 1 provides an unintended defense to

government "sting" operations, as it provides that compliance with the
statute is not necessary when a government employee makes a purchase
otherwise prohibited by the statute, in the course of their duties.
Therefore, if a State or City worker were to conduct a sting operation
by purchasing cigarettes in violation of the statute, a seller could
have a defense that the law was not broken as the official was
purchasing the cigarettes in the course of their duties, and that
therefore compliance with the law was not needed. The bill adds
language in section 1 to correct this potential problem.

Further, Section 1 clarifies the civil penalty to be up to $5,000 per
violation or $100/pack of cigarettes shipped.

The amendments in Section two of the bill provide for more effective
enforcement, both through the injunctive relief provisions, and by
allowing local governments to enforce the statute and collect civil
penalties. Through these changes, maximum enforcement of the statute
will be ensured and repeated violators will be subject to injunctive
relief, rather than fines, which can often be carried as part of the
cost of doing business.

 LEGISLATIVE HISTORY :

S.2001/A.7326 of 2007-08 (Passed Assembly); S.5638-B of 2005-06.

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
Immediately.

2009-S2324 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2324

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 18, 2009
                               ___________

Introduced  by  Sen. PADAVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law, in relation to  the  shipment  of
  cigarettes

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 1, 2 and 5 of section 1399-ll  of  the  public
health  law, as added by chapter 262 of the laws of 2000, are amended to
read as follows:
  1. It shall be unlawful for any person  engaged  in  the  business  of
selling  cigarettes to ship or cause to be shipped any cigarettes to any
person in this state who is not: (a) a person licensed  as  a  cigarette
tax  agent  or  wholesale  dealer under article twenty of the tax law or
registered retail dealer under section four hundred eighty-a of the  tax
law;  (b)  an  export warehouse proprietor pursuant to chapter 52 of the
internal revenue code or an  operator  of  a  customs  bonded  warehouse
pursuant  to section 1311 or 1555 of title 19 of the United States Code;
or (c) a person who [is] PRESENTS HIMSELF  OR  HERSELF  AS  an  officer,
employee  or  agent  of  the  United  States government, this state or a
department, agency, instrumentality  or  political  subdivision  of  the
United  States  or  this state, when such person is acting in accordance
with his or her official duties. For purposes  of  this  subdivision,  a
person  is  a  licensed or registered agent or dealer described in para-
graph (a) of this subdivision if his or her name appears on  a  list  of
licensed  or registered agents or dealers published by the department of
taxation and finance, or if such person is licensed or registered as  an
agent or dealer under article twenty of the tax law.
  2. It shall be unlawful for any common or contract carrier to knowing-
ly  transport cigarettes to any person in this state reasonably believed
by such carrier to be other than a person described  in  paragraph  (a),
(b)  or  (c)  of  subdivision  one  of this section. For purposes of the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03159-01-9

S. 2324                             2

preceding sentence, if cigarettes are transported to  a  home  or  resi-
dence,  it  shall  be  presumed that the common or contract carrier knew
that such person was not a person described in paragraph (a), (b) or (c)
of  subdivision  one of this section. It shall be unlawful for any other
person to knowingly transport cigarettes to any person  in  this  state,
other  than to a person described in paragraph (a), (b) or (c) of subdi-
vision one of  this  section.  Nothing  in  this  subdivision  shall  be
construed  to  prohibit a person other than a common or contract carrier
OR A PERSON ENGAGED IN THE BUSINESS OF SELLING  CIGARETTES  from  trans-
porting  not  more  than eight hundred cigarettes at any one time to any
person in this state.
  5. Any person who violates the provisions of subdivision one or two of
this section shall be guilty of a class A misdemeanor and for  a  second
or subsequent violation shall be guilty of a class E felony. In addition
to  the criminal penalty, [the commissioner may impose a civil fine] ANY
PERSON WHO VIOLATES THE PROVISIONS OF SUBDIVISION ONE, TWO OR  THREE  OF
THIS  SECTION  SHALL  BE  SUBJECT  TO  A CIVIL PENALTY not to exceed THE
GREATER OF (A) five thousand dollars for each  such  violation  [on  any
person  who violates subdivision one or two of this section. The commis-
sioner may impose a civil fine not to exceed five thousand  dollars  for
each  violation  of  subdivision  three  of  this  section on any person
engaged in the business of selling cigarettes who ships or causes to  be
shipped  any  such  cigarettes  to any person in this state]; OR (B) ONE
HUNDRED DOLLARS FOR EACH  PACK  OF  CIGARETTES  SHIPPED,  CAUSED  TO  BE
SHIPPED OR TRANSPORTED IN VIOLATION OF SUCH SUBDIVISION.
  S 2. Section 1399-ll of the public health law, as added by chapter 262
of the laws of 2000, is amended by adding a new subdivision 6 to read as
follows:
  6.  THE  ATTORNEY  GENERAL,  MAY  BRING AN ACTION TO RECOVER THE CIVIL
FINES PROVIDED BY SUBDIVISION FIVE OF THIS SECTION AND  FOR  SUCH  OTHER
RELIEF  AS MAY BE DEEMED NECESSARY. IN ADDITION, THE CORPORATION COUNSEL
OF ANY POLITICAL SUBDIVISION THAT IMPOSES A TAX ON CIGARETTES MAY  BRING
AN ACTION TO RECOVER THE CIVIL PENALTIES PROVIDED BY SUBDIVISION FIVE OF
THIS  SECTION  AND FOR SUCH OTHER RELIEF AS MAY BE DEEMED NECESSARY WITH
RESPECT TO ANY CIGARETTES SHIPPED, CAUSED TO BE SHIPPED  OR  TRANSPORTED
IN VIOLATION OF THIS SECTION TO ANY PERSON LOCATED WITHIN SUCH POLITICAL
SUBDIVISION.  ALL  CIVIL  FINES  OBTAINED  IN  ANY  SUCH ACTION SHALL BE
RETAINED BY THE STATE OR MUNICIPALITY  BRINGING  SUCH  ACTION,  PROVIDED
THAT  NO  PERSON  SHALL  BE  REQUIRED TO PAY CIVIL PENALTIES TO BOTH THE
STATE AND A POLITICAL SUBDIVISION WITH RESPECT TO THE SAME VIOLATION  OF
THIS SECTION.
  S 3. This act shall take effect immediately.

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Senate Bill S2324

Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

2009-S2324 (ACTIVE) - Details

2009-S2324 (ACTIVE) - Summary

2009-S2324 (ACTIVE) - Sponsor Memo

2009-S2324 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2324

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Sponsored By

Frank Padavan

Archive: Last Bill Status - In Senate Committee Health Committee

2009-S2324 (ACTIVE) - Details

2009-S2324 (ACTIVE) - Summary

2009-S2324 (ACTIVE) - Sponsor Memo

2009-S2324 (ACTIVE) - Bill Text download pdf

Comments