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

                                  5615

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 24, 2011
                               ___________

Introduced  by  M.  of  A. HAYES, FINCH, GIGLIO, MALLIOTAKIS, MONTESANO,
  RAIA, SAYWARD -- Multi-Sponsored by  --  M.  of  A.  CERETTO,  DUPREY,
  GOODELL,  HAWLEY,  JORDAN, KOLB, McKEVITT, McLAUGHLIN, REILICH -- read
  once and referred to the Committee on Consumer Affairs and Protection

AN ACT to amend the general business law, in relation to service charges
  on gift certificates and gift cards

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

  Section 1. The general business law is amended by adding a new section
396-ii to read as follows:
  S  396-II.  GIFT  CERTIFICATES  AND GIFT CARDS. 1. FOR THE PURPOSES OF
THIS SECTION:
  (A) "GIFT CERTIFICATES" SHALL MEAN A WRITTEN PROMISE  IN  A  SPECIFIED
AMOUNT  WHICH  CANNOT  BE  INCREASED  IN  VALUE  ON THE FACE THEREOF AND
PURCHASED BY A CONSUMER IN EXCHANGE FOR PAYMENT TO  PROVIDE  MERCHANDISE
OR  SERVICE IN A SPECIFIED AMOUNT OR OF EQUAL VALUE TO THE BEARER OF THE
CERTIFICATE.
  (B) "GIFT CARDS" SHALL MEAN A CARD WHICH MAY BE PURCHASED BY A CONSUM-
ER IN EXCHANGE FOR PAYMENT TO PROVIDE MERCHANDISE OR SERVICE IN A SPECI-
FIED AMOUNT OF EQUAL VALUE TO THE BEARER OF THE CARD.
  (C) "DORMANCY" SHALL MEAN NON-USE OF A GIFT CERTIFICATE OR GIFT  CARD.
ADDING VALUE OR BALANCE INQUIRIES CONSTITUTES USE OF THE GIFT CARD.
  2.  IT  SHALL  BE UNLAWFUL FOR ANY BUSINESS ENTITY, INCLUDING, BUT NOT
LIMITED TO, SOLE PROPRIETORSHIP, FIRM, COMPANY, PARTNERSHIP, ASSOCIATION
OR CORPORATION TO SELL TO A CONSUMER GIFT  CERTIFICATES  OR  GIFT  CARDS
THAT  DIMINISH  IN  VALUE DUE TO DORMANCY AFTER SUCH GIFT CERTIFICATE OR
GIFT CARD IS PURCHASED.
  3. NO SURCHARGES OR FEES, INCLUDING, BUT  NOT  LIMITED  TO,  DORMANCY,
ADMINISTRATIVE, SERVICE, RETROACTIVITY OR REACTIVATION SHALL BE ASSESSED
AGAINST GIFT CERTIFICATES OR GIFT CARDS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09710-01-1

              

A. 5615                             2

  4. THE TERMS AND CONDITIONS OF THE GIFT CERTIFICATE OR GIFT CARD SHALL
BE  CLEARLY  AND  CONSPICUOUSLY STATED THEREON. THE TERMS AND CONDITIONS
SHALL INCLUDE, BUT ARE NOT LIMITED TO, THE EXPIRATION DATE.
  5. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
MAY  BE  MADE  BY  THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE
STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL
PROCEEDING TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE  DEFENDANT  OF
NOT  LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH
VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF  THE  COURT  OR
JUSTICE  THAT  THE  DEFENDANT  HAS,  IN  FACT, VIOLATED THIS SECTION, AN
INJUNCTION MAY BE  ISSUED  BY  SUCH  COURT  OR  JUSTICE,  ENJOINING  AND
RESTRAINING  ANY  FURTHER  VIOLATION,  WITHOUT  REQUIRING PROOF THAT ANY
PERSON HAS, IN FACT, BEEN  INJURED  OR  DAMAGED  THEREBY.  IN  ANY  SUCH
PROCEEDING,  THE  COURT  MAY  MAKE ALLOWANCES TO THE ATTORNEY GENERAL AS
PROVIDED IN PARAGRAPH SIX OF SUBDIVISION  (A)  OF  SECTION  EIGHTY-THREE
HUNDRED  THREE  OF  THE CIVIL PRACTICE LAW AND RULES AND DIRECT RESTITU-
TION. WHENEVER THE COURT  SHALL  DETERMINE  THAT  A  VIOLATION  OF  THIS
SECTION  HAS  OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE
THAN ONE THOUSAND DOLLARS FOR SUCH VIOLATION.  IN  CONNECTION  WITH  ANY
SUCH  APPLICATION,  THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND
MAKE A DETERMINATION OF THE RELEVANT FACTS AND  TO  ISSUE  SUBPOENAS  IN
ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.