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
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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.