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

                                   459

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
  tee on Cities

AN ACT to amend the New York city charter and the administrative code of
  the  city of New York, in relation to the licensing of wholesale ciga-
  rette dealers and the tax on cigarettes; and to repeal subdivisions  d
  and f of section 11-1303 of the administrative code of the city of New
  York  relating  to the suspension or revocation of wholesale cigarette
  licenses and sanctions on retail dealers

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

  Section  1. Subdivision a of section 168 of the New York city charter,
as amended by local law number 59 of the city of New York for  the  year
2007, is amended to read as follows:
  a.  An  independent  tax  appeals tribunal is hereby established. Such
tribunal shall be within the office of administrative tax appeals estab-
lished under section one hundred fifty of  this  charter.  The  tribunal
shall  have  jurisdiction  to  hear and determine cases initiated by the
filing of petitions protesting notices issued  by  the  commissioner  of
finance[, which] THAT give a person the right to a hearing[,] including,
but  not  limited  to,  any notice of determination of tax due, of a tax
deficiency, of a denial of a refund or credit  application  [or  of  the
refusal  to  grant, the suspension or the revocation of a license issued
pursuant to], AND ANY NOTICE AUTHORIZED UNDER chapter thirteen of  title
eleven  of  the  administrative  code, which notices relate to WHOLESALE
CIGARETTE LICENSES OR  SANCTIONS  ISSUED  OR  IMPOSED  BY  THE  CITY  OR
nonproperty  taxes, excise taxes and annual vault charges imposed by the
city, except those taxes and charges administered by the  State  of  New
York  on  behalf  of the City of New York. For purposes of the preceding
sentence, if the commissioner of finance fails to act with respect to  a
refund  application before the expiration of the time period after which

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

                                                           LBD03123-01-3

A. 459                              2

the taxpayer may file a petition for refund with the  tribunal  pursuant
to  subdivision  (c)  of  section 11-529 or subdivision three of section
11-680 of the administrative code, such failure shall be deemed to be  a
notice  of  denial  of  a  refund  issued by the commissioner of finance
pursuant to such subdivision. The tribunal shall  review  petitions  and
other  documents submitted to it, hold hearings, and render decisions as
provided in this chapter. In rendering its decisions on claims  asserted
by taxpayers or the commissioner of finance, the tribunal shall have the
same power and authority as the commissioner of finance to impose, modi-
fy or waive any taxes within its jurisdiction, interest thereon, and any
applicable civil penalties, AND TO MAKE DECISIONS WITH RESPECT TO WHOLE-
SALE  CIGARETTE  LICENSES  OR  SANCTIONS UNDER CHAPTER THIRTEEN OF TITLE
ELEVEN OF THE ADMINISTRATIVE CODE.  In appeals in which the rules of the
commissioner of finance are at issue, the tribunal shall have the  power
and authority to rule on the legality of such rules.
  S  2.  Subdivision  c  of section 169 of the New York city charter, as
amended by chapter 808 of the laws  of  1992,  is  amended  to  read  as
follows:
  c.  [A procedure] PROCEDURES for promptly hearing and determining: (1)
any matter concerning jeopardy assessments or predecision warrants based
thereon,  AND (2) WITH RESPECT TO WHOLESALE CIGARETTE LICENSES AND SANC-
TIONS, ANY  MATTER  CONCERNING  SANCTION  ACTIONS,  EXCEPT  FOR  MATTERS
INVOLVING SOLELY THE IMPOSITION OF CIVIL PENALTIES;
  S  3.  Subdivision  a  of section 170 of the New York city charter, as
amended by chapter 808 of the laws  of  1992,  is  amended  to  read  as
follows:
  a.  Any  taxpayer who has been issued a notice referred to in subdivi-
sion a of section one hundred sixty-eight of the charter by the  commis-
sioner  of  finance may petition the tribunal for administrative review.
To commence a proceeding, such a taxpayer must, within ninety days after
being issued the notice at issue by the commissioner of finance  or,  if
the  commissioner  of  finance  has established a conciliation procedure
pursuant to section 11-124 of the administrative code and  the  taxpayer
has  requested a conciliation conference in accordance therewith, within
ninety days from the mailing of the conciliation decision or the date of
the commissioner's confirmation of the  discontinuance  of  the  concil-
iation  proceeding,  both  (1) serve a petition upon the commissioner of
finance and (2) file the petition with the  tribunal.    Notwithstanding
the  time  specified  in the preceding sentence for filing a petition, A
PETITION TO SEEK REVIEW OF A NOTICE IN ANY MATTER  CONCERNING  WHOLESALE
CIGARETTE  LICENSES  OR  SANCTIONS PURSUANT TO CHAPTER THIRTEEN OF TITLE
ELEVEN OF THE ADMINISTRATIVE CODE MUST BE SERVED AND FILED WITHIN THIRTY
DAYS FROM THE DATE OF SUCH NOTICE,  AND  a  petition  for  refund  filed
pursuant to subdivision (c) of section 11-529 of the administrative code
or subdivision three of section 11-680 of such code [may] MUST be SERVED
AND  filed  within  the  time  specified in such subdivision (c) or such
subdivision three. The tribunal shall not extend  the  time  limitations
for  commencing  a  proceeding for any petitioner failing to comply with
such time limitations.  The petition shall contain a plain  and  concise
statement of the facts and law on which the proceeding is based.
  S  4.  Subdivision  b  of section 171 of the New York city charter, as
amended by chapter 808 of the laws  of  1992,  is  amended  to  read  as
follows:
  b.    Except  as otherwise provided in subdivisions d and e of section
one hundred sixty-nine of the charter, each decision  of  the  tribunal,
shall  finally  and  irrevocably  decide  all  the  issues raised in the

A. 459                              3

proceedings before it, unless the petitioner who commenced the  proceed-
ing seeks judicial review of any such decision in the manner provided in
article  seventy-eight  of the civil practice law and rules [within four
months  after  the  giving  of  the notice of such decision].   JUDICIAL
REVIEW OF DECISIONS, OTHER  THAN  THOSE  INVOLVING  WHOLESALE  CIGARETTE
LICENSES  OR  SANCTIONS  UNDER  CHAPTER  THIRTEEN OF TITLE ELEVEN OF THE
ADMINISTRATIVE CODE, SHALL BE SOUGHT WITHIN FOUR MONTHS AFTER THE GIVING
OF THE NOTICE OF SUCH DECISION.  NOTWITHSTANDING ANY LAW TO THE  CONTRA-
RY,  JUDICIAL  REVIEW  OF  ANY  DECISION  INVOLVING  WHOLESALE CIGARETTE
LICENSES OR SANCTIONS UNDER CHAPTER THIRTEEN  OF  TITLE  ELEVEN  OF  THE
ADMINISTRATIVE  CODE SHALL BE SOUGHT WITHIN THIRTY DAYS AFTER THE GIVING
OF THE NOTICE OF SUCH DECISION.
  S 5. Subdivision a of section 11-124 of the administrative code of the
city of New York, as added by chapter  808  of  the  laws  of  1992,  is
amended to read as follows:
  a. The commissioner of finance may establish a procedure for providing
conciliation  conferences  for  purposes  of settling contested determi-
nations of taxes or charges  or  denials  of  refunds  or  credits  with
respect  to  taxes  or  charges  imposed under chapter five, six, seven,
eight, nine, eleven, twelve, thirteen, fourteen, [fifteen,]  twenty-one,
twenty-two,  twenty-four, twenty-five or twenty-seven of this title[, or
for the purpose of settling disputes arising from  the  notification  of
the  refusal  to  grant,  the  suspension or the revocation of a license
issued pursuant to chapter thirteen of this title]. If such a  procedure
is  established,  a  conciliation  conference  shall  be provided at the
option of any taxpayer or any other person subject to the provisions  of
any  of  such chapters. For purposes of this subdivision, if the commis-
sioner of finance fails to act with  respect  to  a  refund  application
before  the  expiration  of the time period after which the taxpayer may
file a petition for refund with the tax appeals tribunal established  by
section  one  hundred sixty-eight of the charter pursuant to subdivision
(c) of section 11-529 or subdivision three  of  section  11-680  of  the
code, such failure shall be deemed to be the denial of a refund.
  S  6.  Section  11-1301  of the administrative code of the city of New
York is amended by adding three new subdivisions 14, 15 and 16  to  read
as follows:
  14. "CONTROLLING PERSON." ANY PERSON WHO IS:
  (A) AN OFFICER, DIRECTOR, PARTNER, OR IN THE CASE OF A LIMITED LIABIL-
ITY COMPANY, A MEMBER OR A PERSON HAVING AUTHORITY, WITH RESPECT TO SUCH
LIMITED  LIABILITY  COMPANY, ANALOGOUS TO THE AUTHORITY OF AN OFFICER OR
DIRECTOR WITH RESPECT TO A CORPORATION, OF A WHOLESALE DEALER OR  OF  AN
APPLICANT  FOR A WHOLESALE CIGARETTE LICENSE (WHETHER OR NOT A WHOLESALE
DEALER);
  (B) A SHAREHOLDER, DIRECTLY OR INDIRECTLY OWNING MORE THAN TEN PERCENT
OF THE NUMBER OF SHARES OF STOCK OF SUCH WHOLESALE DEALER  OR  APPLICANT
ENTITLING  THE  HOLDER  THEREOF TO VOTE FOR THE ELECTION OF DIRECTORS OR
TRUSTEES. FOR PURPOSES OF THIS PARAGRAPH, WHERE  REFERENCE  IS  MADE  TO
DIRECT  OR  INDIRECT OWNERSHIP OF MORE THAN TEN PERCENT OF THE NUMBER OF
SHARES OF STOCK OF THE APPLICANT OR ANOTHER PERSON ENTITLING THE  HOLDER
THEREOF  TO  VOTE FOR THE ELECTION OF DIRECTORS OR TRUSTEES, IN THE CASE
OF AN APPLICANT OR ANOTHER PERSON WHICH AT THE RELEVANT TIME HAS FOUR OR
FEWER SHAREHOLDERS HOLDING SHARES ENTITLING THE HOLDERS THEREOF TO  VOTE
FOR  THE  ELECTION OF DIRECTORS OR TRUSTEES, TWENTY-FIVE PERCENT OR MORE
SHALL BE SUBSTITUTED AS THE APPLICABLE PERCENTAGE IN SUCH REFERENCES  TO
OWNERSHIP, DIRECTLY OR INDIRECTLY, OF VOTING STOCK; OR

A. 459                              4

  (C)  ANY PERSON WHO IS A MEMBER OF THE FAMILY, AS DEFINED IN PARAGRAPH
FOUR OF SUBSECTION (C) OF SECTION TWO HUNDRED SIXTY-SEVEN OF THE  INTER-
NAL  REVENUE  CODE,  OF A WHOLESALE DEALER, AN APPLICANT FOR A WHOLESALE
CIGARETTE LICENSE, OR A PERSON DESCRIBED IN PARAGRAPH (A) OR (B) OF THIS
SUBDIVISION.
  15.  "RELATED STATUTE." THE TERM "RELATED STATUTE" SHALL HAVE THE SAME
MEANING AS SET FORTH IN SUBDIVISION (D) OF SECTION EIGHTEEN  HUNDRED  OF
THE TAX LAW.
  16.  "ASSOCIATE."  ANY PERSON, OTHER THAN A CONTROLLING PERSON, WHO IS
AN EMPLOYEE, SHAREHOLDER OR OTHER PERSON ACTING ON BEHALF  OF  OR  AS  A
REPRESENTATIVE OF A WHOLESALE DEALER, AN APPLICANT FOR A WHOLESALE CIGA-
RETTE LICENSE, OR A CONTROLLING PERSON.
  S  7.  Subdivisions  d  and f of section 11-1303 of the administrative
code of the city of New York are REPEALED.
  S 8. Paragraph 1 of subdivision b of section 11-1303 of  the  adminis-
trative  code  of the city of New York, as amended by local law number 2
of the city of New York for  the  year  2000,  is  amended  to  read  as
follows:
  1. Wholesale cigarette license. In order to obtain a license to engage
in  business  as  a wholesale dealer, a person shall file AN application
with the commissioner of finance for one license for each place of busi-
ness that he or she desires to have for the sale of  cigarettes  in  the
city.  Every application for a wholesale cigarette license shall be made
upon a form prescribed and prepared by the commissioner of  finance  and
shall set forth such information as the commissioner shall require. [The
commissioner  of  finance  may,  for  cause, refuse to issue a wholesale
cigarette license.] Upon approval of the application,  the  commissioner
of  finance shall grant and issue to the applicant a wholesale cigarette
license for each place of business [within the city] set  forth  in  the
application.  Cigarette  licenses  shall  not be assignable and shall be
valid only for the persons in whose names such licenses have been issued
and for the transaction of business in the places designated therein and
shall at all times be conspicuously displayed at the  places  for  which
issued.
  S  9.  Section  11-1303  of the administrative code of the city of New
York is amended by adding seven new subdivisions h, i, j, k, l, m and  n
to read as follows:
  H.  REFUSAL  TO  ISSUE  A NEW LICENSE. THE COMMISSIONER OF FINANCE MAY
REFUSE TO ISSUE A WHOLESALE CIGARETTE LICENSE UPON DETERMINING THAT,  AT
THE  TIME  OF  THE  WHOLESALE  LICENSE APPLICATION, THERE IS ONE OR MORE
GROUNDS PURSUANT TO SUBDIVISION K OF THIS SECTION TO IMPOSE SANCTIONS ON
THE APPLICANT OR ON ANY CONTROLLING PERSON OF THE APPLICANT.
  I. SANCTIONS OF WHOLESALE DEALERS, CONTROLLING  PERSONS,  AND  ASSOCI-
ATES.  BASED  ON THE GROUNDS DESCRIBED IN SUBDIVISION K OF THIS SECTION,
THE COMMISSIONER OF FINANCE MAY, SUBJECT TO THE RIGHT TO SEEK A  HEARING
AND  REVIEW  AS  PROVIDED  IN SUBDIVISION L OF THIS SECTION, TAKE ONE OR
MORE OF THE FOLLOWING ACTIONS:
  1. REFUSE TO RENEW ANY WHOLESALE LICENSE REQUIRED UNDER THIS CHAPTER;
  2. SUSPEND OR REVOKE ANY SUCH LICENSE;
  3. TEMPORARILY OR PERMANENTLY BAN ANY WHOLESALE LICENSEE,  CONTROLLING
PERSON,  OR ASSOCIATE FROM HOLDING ANY LICENSE REQUIRED UNDER THIS CHAP-
TER, OR FROM ACTING AS A WHOLESALE DEALER, OR A  CONTROLLING  PERSON  OR
ASSOCIATE OF ANY WHOLESALE DEALER IN THE CITY; OR
  4.  IMPOSE  CIVIL  PENALTIES  AS  PROVIDED  IN  SUBDIVISION  J OF THIS
SECTION.
  J. CIVIL PENALTIES.

A. 459                              5

  1. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CODE OR ANY OTHER  LAW,
THE  COMMISSIONER OF FINANCE MAY IMPOSE CIVIL PENALTIES AGAINST A WHOLE-
SALE DEALER (WHETHER OR NOT LICENSED UNDER  THIS  SECTION),  CONTROLLING
PERSON, OR ASSOCIATE FOR ANY OF THE ACTS OR OMISSIONS THAT WOULD CONSTI-
TUTE GROUNDS FOR SANCTIONS OF A LICENSEE, CONTROLLING PERSON, OR ASSOCI-
ATE SET FORTH IN SUBDIVISION K OF THIS SECTION PURSUANT TO RULES PROMUL-
GATED BY THE COMMISSIONER OF FINANCE.
  2. A WHOLESALE DEALER, CONTROLLING PERSON, OR ASSOCIATE MAY BE SUBJECT
TO  CIVIL  PENALTIES OF UP TO TEN THOUSAND DOLLARS FOR EACH ACT OR OMIS-
SION THAT CONSTITUTES GROUNDS FOR SANCTIONS UNDER SUBDIVISION K OF  THIS
SECTION.  ANY  CONTROLLING PERSON OF A WHOLESALE DEALER SHALL BE JOINTLY
AND SEVERALLY LIABLE WITH THE WHOLESALE DEALER WITH RESPECT TO ANY CIVIL
PENALTIES IMPOSED PURSUANT TO THIS SUBDIVISION ON THE  WHOLESALE  DEALER
OR ANY OTHER CONTROLLING PERSON.
  K. GROUNDS FOR SANCTIONS.
  1.  THE FOLLOWING ARE THE GROUNDS FOR THE ACTION DESCRIBED IN SUBDIVI-
SION H OF THIS SECTION AND, WITH  RESPECT  TO  WHOLESALE  LICENSEES  AND
CONTROLLING  PERSONS, FOR THE ACTIONS DESCRIBED IN SUBDIVISION I OF THIS
SECTION:
  (A) THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON HAS:
  (I) FAILED TO COMPLY WITH ANY OF THE PROVISIONS OF THIS CHAPTER OR ANY
OF THE RULES PROMULGATED THEREUNDER;
  (II) KNOWINGLY AIDED AND ABETTED ANOTHER PERSON IN  VIOLATING  ANY  OF
THE  PROVISIONS  OF  THIS CHAPTER OR ANY OF THE RULES PROMULGATED THERE-
UNDER;
  (III) FAILED TO COMPLY WITH ANY OF THE PROVISIONS OF ARTICLE TWENTY OR
ARTICLE TWENTY-A OF THE TAX LAW OR THE REGULATIONS  PROVIDED  THEREUNDER
AS  FINALLY  DETERMINED  IN A PROCEEDING COMMENCED BY THE NEW YORK STATE
DEPARTMENT OF TAXATION AND FINANCE OR OTHER COMPETENT  STATE  AGENCY  OR
AUTHORITY;
  (IV)  BEEN  CONVICTED  IN A COURT OF COMPETENT JURISDICTION OF A CRIME
PROVIDED FOR IN THIS TITLE OR IN THE TAX LAW,  OR  OF  ANY  OTHER  CRIME
THAT,  IN  ACCORDANCE  WITH  SECTION  SEVEN  HUNDRED  FIFTY-THREE OF THE
CORRECTION LAW, HAS A DIRECT  BEARING  ON  THE  APPLICANT'S  ABILITY  TO
PERFORM  THE  DUTIES  AND RESPONSIBILITIES OF A WHOLESALE LICENSEE UNDER
THIS CHAPTER;
  (V) COMMITTED FRAUD OR DECEIT DURING OPERATIONS AS A WHOLESALE  DEALER
OR  HAS COMMITTED FRAUD OR DECEIT IN PROCURING A LICENSE, OR IN ATTEMPT-
ING TO PROCURE A LICENSE;
  (VI) AIDED AND ABETTED OR OTHERWISE ASSISTED ANOTHER PERSON IN VIOLAT-
ING ANY SANCTION IMPOSED UNDER THIS CHAPTER;
  (VII) IMPERSONATED ANY OTHER PERSON LICENSED UNDER  THIS  CHAPTER,  OR
ANY CONTROLLING PERSON OR ASSOCIATE OF SUCH A PERSON; OR
  (VIII)  IMPERSONATED  ANY PERSON REPRESENTED TO BE LICENSED UNDER THIS
CHAPTER, OR A CONTROLLING PERSON OR ASSOCIATE OF SUCH A PERSON,  WHO  IS
NOT IN FACT LICENSED UNDER THIS CHAPTER.
  (B)  ANY ASSOCIATE OF THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON
HAS:
  (I) SOLD,  TRANSPORTED,  OR  POSSESSED  ANY  UNSTAMPED  OR  UNLAWFULLY
STAMPED  CIGARETTES IN VIOLATION OF ANY PROVISION OF THIS CHAPTER OR ANY
RULES PROMULGATED THEREUNDER;
  (II) ENGAGED IN THE UNLAWFUL STAMPING OF CIGARETTES; OR
  (III) AIDED AND ABETTED ANY OTHER PERSON IN ENGAGING  IN  THE  CONDUCT
DESCRIBED IN THIS SUBPARAGRAPH.
  (C)  ANY  SANCTION  AUTHORIZED BY THIS SECTION HAS BEEN FINALLY DETER-
MINED PURSUANT  TO  THIS  CHAPTER  AGAINST  ANY  WHOLESALE  LICENSEE  OR

A. 459                              6

CONTROLLING  PERSON,  AND  THE SUBJECT WHOLESALE LICENSEE OR CONTROLLING
PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE SUCH SANCTION,  OR  HAS  NOT
PAID IN FULL ANY CIVIL PENALTY IMPOSED.
  (D)  ANY  TAX  (INCLUDING  ANY RELATED TAX PENALTY) IMPOSED UNDER THIS
TITLE, THE TAX LAW, OR ANY RELATED STATUTE HAS BEEN  FINALLY  DETERMINED
TO  BE  DUE  FROM  THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON, AND
SUCH TAX HAS NOT BEEN PAID IN FULL.
  (E) THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON IS  THE  CONTROL-
LING  PERSON  IN A WHOLESALE DEALER THAT THE COMMISSIONER HAS DETERMINED
IS RESPONSIBLE FOR ANY ACTS OR OMISSIONS THAT WOULD  CONSTITUTE  GROUNDS
FOR SANCTIONS UNDER THIS SUBDIVISION.
  (F)  THE WHOLESALE LICENSEE DOES NOT HAVE A VALID LICENSE TO ENGAGE IN
THE BUSINESS OF A WHOLESALE CIGARETTE DEALER IN THE STATE  OF  NEW  YORK
PURSUANT  TO  SECTION FOUR HUNDRED EIGHTY OF THE TAX LAW. IF THE GROUNDS
FOR SANCTIONS ARE ON THE BASIS SPECIFIED IN THIS SUBPARAGRAPH, THE SANC-
TIONS MUST INCLUDE THE REVOCATION OF THE WHOLESALE LICENSE.
  2. A TEMPORARY OR PERMANENT BAN ON HOLDING ANY LICENSE REQUIRED  UNDER
THIS  CHAPTER OR ON ACTING AS A WHOLESALE DEALER, CONTROLLING PERSON, OR
ASSOCIATE, OR THE IMPOSITION OF A CIVIL PENALTY, PURSUANT TO  PARAGRAPHS
THREE  AND  FOUR OF SUBDIVISION I OF THIS SECTION, MAY BE IMPOSED ON ANY
ASSOCIATE OF A WHOLESALE LICENSEE OR OF A CONTROLLING PERSON FOR ANY  OF
THE  GROUNDS  SET  FORTH  IN  SUBPARAGRAPH  (B) OF PARAGRAPH ONE OF THIS
SUBDIVISION. SUCH SANCTIONS MAY ALSO BE IMPOSED ON ANY  ASSOCIATE  OF  A
WHOLESALE LICENSEE OR OF A CONTROLLING PERSON FOR ANY OF THE GROUNDS SET
FORTH  IN  SUBPARAGRAPH  (A),  (C), (D), OR (E) OF PARAGRAPH ONE OF THIS
SUBDIVISION, AS IF THE ACTIONS OF SUCH AN ASSOCIATE WERE THE ACTIONS  OF
A  WHOLESALE  LICENSEE OR CONTROLLING PERSON ACTING UNDER THOSE SUBPARA-
GRAPHS.
  3. A TEMPORARY OR PERMANENT BAN ON HOLDING ANY LICENSE REQUIRED  UNDER
THIS  CHAPTER OR ON ACTING AS A WHOLESALE DEALER, CONTROLLING PERSON, OR
ASSOCIATE, OR THE IMPOSITION OF A CIVIL PENALTY, PURSUANT TO  PARAGRAPHS
THREE  AND  FOUR OF SUBDIVISION I OF THIS SECTION, MAY BE IMPOSED ON ANY
UNLICENSED WHOLESALE DEALER, OR ANY CONTROLLING PERSON OR  ASSOCIATE  OF
SUCH AN UNLICENSED WHOLESALE DEALER, FOR ANY OF THE GROUNDS SET FORTH IN
THIS SUBDIVISION.
  L. NOTICES, AND HEARING AND REVIEW PROCEDURE.
  1. REQUIREMENTS FOR NOTICES.
  (A) ANY NOTICE PROVIDED UNDER THIS SUBDIVISION, OTHER THAN A NOTICE OF
DETERMINATION  OF  REFUSAL TO APPROVE OR RENEW A LICENSE ISSUED PURSUANT
TO PARAGRAPH TWO OF THIS SUBDIVISION, SHALL  BE  ISSUED  TO  THE  PERSON
SUBJECT  TO THE NOTICE WITHIN FIVE YEARS OF THE ACT OR OMISSION OR OTHER
GROUNDS PROVIDING THE BASIS FOR THE NOTICE AS DESCRIBED IN SUBDIVISION K
OF THIS SECTION, IF SUCH NOTICE IS BASED ON THE  GROUNDS  SET  FORTH  IN
CLAUSE (I), (II), (III), OR (IV) OF SUBPARAGRAPH (A), OR IN SUBPARAGRAPH
(B) OR (E) OF PARAGRAPH ONE OF SUBDIVISION K OF THIS SECTION. ANY NOTICE
BASED  ON  GROUNDS  SET  FORTH  IN CLAUSE (V), (VI), (VII), OR (VIII) OF
SUBPARAGRAPH (A), OR IN SUBPARAGRAPH (C), (D), OR (F) OF  PARAGRAPH  ONE
OF SUBDIVISION K OF THIS SECTION, MAY BE ISSUED AT ANY TIME.
  (B)  ALL  NOTICES  PROVIDED  UNDER  THIS  SUBDIVISION SHALL ADVISE THE
PERSON SUBJECT TO THE NOTICE THAT THE PROPOSED SANCTIONS OR  REFUSAL  TO
LICENSE  MAY BE REVIEWED THROUGH A HEARING PROCESS AS DESCRIBED IN PARA-
GRAPH FOUR OF THIS SUBDIVISION.
  2. A NOTICE OF DETERMINATION OF REFUSAL TO APPROVE OR RENEW A  LICENSE
SHALL  BE ISSUED WITHIN THIRTY DAYS AFTER A COMPLETE APPLICATION FOR THE
LICENSE IS RECEIVED BY THE COMMISSIONER OF FINANCE. SUCH NOTICE  MAY  BE
COMBINED WITH A NOTICE OF DETERMINATION OF PROPOSED SANCTIONS.

A. 459                              7

  3.  A  PROCEEDING  TO  CHALLENGE  A REFUSAL TO APPROVE A LICENSE OR TO
CHALLENGE SANCTIONS AUTHORIZED BY THIS SECTION SHALL BE COMMENCED BY THE
FILING OF A PETITION PROTESTING THE  NOTICE  OF  REFUSAL  ISSUED  TO  AN
APPLICANT OR THE NOTICE OF DETERMINATION OF PROPOSED SANCTIONS ISSUED TO
A  WHOLESALE  DEALER,  CONTROLLING  PERSON, OR ASSOCIATE, AS PROVIDED IN
PARAGRAPH FOUR OF THIS SUBDIVISION.
  4. THE PERSON TO WHOM A NOTICE DESCRIBED IN PARAGRAPH ONE  OR  TWO  OF
THIS  SUBDIVISION  IS  ISSUED  SHALL HAVE THE RIGHT TO A HEARING IF SUCH
PERSON, WITHIN THIRTY DAYS FROM THE DATE OF SUCH NOTICE, BOTH:
  (A) SERVES A PETITION FOR A HEARING UPON THE COMMISSIONER OF  FINANCE;
AND
  (B) FILES THE PETITION WITH THE TAX APPEALS TRIBUNAL.
NOTWITHSTANDING  ANY  OTHER  PROVISION OF THIS CODE TO THE CONTRARY, THE
PERSON TO WHOM SUCH NOTICE IS ISSUED SHALL NOT HAVE THE RIGHT TO REQUEST
A CONCILIATION CONFERENCE WITH RESPECT TO SUCH NOTICE.
  5. SUCH HEARING SHALL BE HELD PURSUANT TO THE RULES OF THE TAX APPEALS
TRIBUNAL FOR EXPEDITED PROCEEDINGS, EXCEPT THAT THIS PARAGRAPH SHALL NOT
APPLY TO A HEARING TO REVIEW SOLELY THE IMPOSITION  OF  CIVIL  PENALTIES
PURSUANT TO SUBDIVISION J OF THIS SECTION.
  6.  THE COMMISSIONER MAY ONLY IMPOSE SANCTIONS PURSUANT TO SUBDIVISION
I OF THIS SECTION SUBSEQUENT TO THE HEARING DESCRIBED IN PARAGRAPH  FOUR
OF THIS SUBDIVISION.
  M.  SUSPENSION  OF  LICENSE  AND  IMPOSITION OF TEMPORARY BAN BEFORE A
HEARING.
  1. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION TO THE  CONTRA-
RY, THE COMMISSIONER MAY ISSUE A NOTICE SUSPENDING A LICENSE OR IMPOSING
A TEMPORARY BAN ON HOLDING ANY LICENSE REQUIRED UNDER THIS CHAPTER OR ON
ACTING  AS  A  WHOLESALE  DEALER,  CONTROLLING  PERSON,  OR ASSOCIATE AS
AUTHORIZED BY PARAGRAPHS TWO AND THREE OF SUBDIVISION I OF THIS SECTION,
PRIOR TO A HEARING UPON FINDING ANY OF  THE  FOLLOWING  EXIGENT  CIRCUM-
STANCES:
  (A)  THERE ARE GROUNDS FOR SANCTIONS AGAINST ANY LICENSEE, CONTROLLING
PERSON, OR ASSOCIATE PURSUANT TO CLAUSE (III), (IV), (V),  (VI),  (VII),
OR  (VIII) OF SUBPARAGRAPH (A), OR PURSUANT TO SUBPARAGRAPH (C) OF PARA-
GRAPH ONE OF SUBDIVISION K OF THIS SECTION.
  (B) THERE ARE  GROUNDS  FOR  REVOCATION  OF  THE  WHOLESALE  CIGARETTE
LICENSE  PURSUANT  TO SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVISION K
OF THIS SECTION.
  (C) THE LICENSEE, CONTROLLING PERSON, OR ASSOCIATE HAS ENGAGED IN  ANY
ACTIVITY FOR WHICH SANCTIONS MAY BE IMPOSED PURSUANT TO SUBDIVISION I OF
THIS  SECTION  WITH RESPECT TO THE UNLAWFUL STAMPING OF CIGARETTES, SUCH
AS THE UNAUTHORIZED STAMPING  OF  CIGARETTE  PACKAGES,  THE  PRODUCTION,
SALE,  TRANSPORT, OR USE OF COUNTERFEIT TAX STAMPS, INCLUDING THE PLACE-
MENT OF COUNTERFEIT TAX STAMPS ON PACKAGES OF CIGARETTES, OR THE  AIDING
OR ABETTING OF ANY OTHER PERSON IN ANY SUCH ACTIVITY.
  (D)  THE LICENSEE, CONTROLLING PERSON, OR ASSOCIATE HAS ENGAGED IN ANY
ACTIVITY FOR WHICH SANCTIONS MAY BE IMPOSED PURSUANT TO SUBDIVISION I OF
THIS SECTION THAT RESULTED IN TAXES ON MORE THAN TEN THOUSAND CIGARETTES
BEING UNPAID OR THAT CREATED A SUBSTANTIAL  RISK  TO  PUBLIC  HEALTH  OR
SAFETY OR PUBLIC ORDER.
  2. ALL NOTICES PROVIDED UNDER THIS SUBDIVISION SHALL ADVISE THE PERSON
SUBJECT  TO  THE  NOTICE  THAT  SUCH  SUSPENSION OR TEMPORARY BAN MAY BE
REVIEWED THROUGH A HEARING PROCESS AS DESCRIBED IN  PARAGRAPH  THREE  OF
THIS  SUBDIVISION. THE PERSON TO WHOM SUCH A NOTICE IS ISSUED SHALL HAVE
THE RIGHT TO A HEARING IF SUCH PERSON, WITHIN THIRTY DAYS FROM THE  DATE
OF SUCH NOTICE, SERVES A PETITION FOR A HEARING UPON THE COMMISSIONER OF

A. 459                              8

FINANCE  AND  FILES THE PETITION WITH THE TAX APPEALS TRIBUNAL. NOTWITH-
STANDING ANY OTHER PROVISION OF THIS CODE TO THE CONTRARY, THE PERSON TO
WHOM SUCH NOTICE IS ISSUED SHALL NOT HAVE THE RIGHT TO REQUEST A CONCIL-
IATION CONFERENCE WITH RESPECT TO SUCH NOTICE.
  3. THE TAX APPEALS TRIBUNAL SHALL PROMULGATE RULES FOR A HEARING TO BE
HELD  ON AN ACCELERATED SCHEDULE FOLLOWING THE COMMISSIONER'S SUSPENSION
OF A LICENSE OR ISSUANCE OF A TEMPORARY BAN PURSUANT TO THIS  PARAGRAPH.
SUCH  A  HEARING  SHALL  COMMENCE  WITHIN  SEVEN  BUSINESS DAYS FROM THE
RECEIPT OF A PETITION IN PROPER FORM FOR SUCH A HEARING, AND A  DETERMI-
NATION SHALL BE RENDERED WITHIN TWELVE BUSINESS DAYS FROM THE COMPLETION
OF  THE  HEARING  OR  THE  SUBMISSION  OF BRIEFS RELATED TO THE HEARING,
WHICHEVER IS LATER. THE TRIBUNAL WILL REVIEW EN BANC  THE  DETERMINATION
FROM  AN ACCELERATED HEARING UPON A REQUEST FOR REVIEW MADE BY ANY PARTY
WITHIN SEVEN BUSINESS DAYS FROM THE GIVING OF NOTICE  OF  SUCH  DETERMI-
NATION.  THE TRIBUNAL SHALL ISSUE A DECISION WITHIN TWENTY BUSINESS DAYS
FROM THE RECEIPT OF SUCH REQUEST FOR REVIEW, THE SUBMISSION OF BRIEFS OR
THE  DATE  OF THE ORAL ARGUMENT, WHICHEVER IS LATEST. ANY REQUEST BY THE
PETITIONER THAT DELAYS SUCH A HEARING OR DETERMINATION OR REVIEW OF  THE
DETERMINATION  OR  DECISION SHALL EXTEND THE TIME LIMITATIONS IMPOSED BY
THIS PARAGRAPH.
  N. AUTHORITY OF THE COMMISSIONER OF CONSUMER AFFAIRS. IN  ADDITION  TO
ANY AUTHORITY PROVIDED UNDER ANY OTHER SECTION OF THIS CODE, THE COMMIS-
SIONER  OF  CONSUMER  AFFAIRS  MAY  SUSPEND OR REVOKE A RETAIL CIGARETTE
LICENSE AND IMPOSE ANY CIVIL PENALTIES AUTHORIZED UNDER TITLE TWENTY  OF
THIS  CODE,  UPON  NOTIFICATION  THAT  A HOLDER OF SUCH LICENSE HAS BEEN
FINALLY DETERMINED PURSUANT TO THIS CHAPTER TO  HAVE  FAILED  TO  COMPLY
WITH  THE PROVISIONS OF THIS CHAPTER OR ANY RULES OF THE COMMISSIONER OF
FINANCE PROMULGATED UNDER THIS CHAPTER. THE AUTHORITY  PROVIDED  TO  THE
COMMISSIONER OF CONSUMER AFFAIRS IN THIS SUBDIVISION SHALL NOT LIMIT THE
AUTHORITY  OF  THE COMMISSIONER OF FINANCE TO IMPOSE SANCTIONS AND CIVIL
PENALTIES UNDER THIS CHAPTER.
  S 10. Section 11-1306 of the administrative code of the  city  of  New
York is amended to read as follows:
  S  11-1306  Possession  [and] OR transportation of unstamped OR UNLAW-
FULLY STAMPED cigarettes.   A. FOR THE PURPOSES  OF  THIS  CHAPTER,  ANY
PERSON  WHO  SHALL POSSESS OR TRANSPORT, AT ANY ONE TIME, MORE THAN FOUR
HUNDRED CIGARETTES IN UNSTAMPED OR UNLAWFULLY STAMPED PACKAGES, SHALL BE
PRESUMED TO BE A WHOLESALE DEALER, EXCEPT THAT  THIS  PRESUMPTION  SHALL
NOT APPLY TO:
  1.  ANY PERSON POSSESSING OR TRANSPORTING MORE THAN FOUR HUNDRED CIGA-
RETTES IN UNSTAMPED PACKAGES WHO IS  A  MANUFACTURER,  AN  AGENT,  OR  A
PERSON DELIVERING CIGARETTES IN THE REGULAR COURSE OF BUSINESS (A) FOR A
MANUFACTURER,  AN  AGENT,  OR  A  LICENSED WHOLESALE DEALER, OR (B) TO A
PLACE OUTSIDE OF THE CITY, PROVIDED SUCH PERSON IS NOT IN  VIOLATION  OF
SUBDIVISION B OF THIS SECTION; OR
  2.  ANY  PERSON POSSESSING OR TRANSPORTING ONE THOUSAND OR FEWER CIGA-
RETTES IN STAMPED PACKAGES FOR PERSONAL USE, PROVIDED  THE  COMMISSIONER
OF FINANCE DOES NOT PROVE THAT SUCH PERSON HAD KNOWLEDGE THAT SUCH CIGA-
RETTES WERE IN UNLAWFULLY STAMPED PACKAGES.
  B.  Every  person who shall possess or transport upon the public high-
ways, roads or streets of this city more than four hundred cigarettes in
unstamped packages, shall be required to  have  in  his  or  her  actual
possession  invoices  or  delivery tickets for such cigarettes. All such
invoices or delivery tickets shall show the true name and address of the
consignor or seller, the true name  and  address  of  the  consignee  or
purchaser  and  the  quantity  and brands of the cigarettes transported.

A. 459                              9

[The absence of such invoices or delivery tickets shall be  prima  facie
evidence  that  such  person  is  a dealer in cigarettes in the city and
subject to the provisions of this chapter.]
  S 11. Subdivision (f) of section 11-4012 of the administrative code of
the  city of New York, as amended by chapter 201 of the laws of 2009, is
amended to read as follows:
  (f) Any willful act or omission, other than those described in section
11-4002 of this chapter or subdivision (a), (b), (c), (d), (e) [or], (g)
OR (H) of this section, by any person which constitutes a  violation  of
any  provision  of  chapter  thirteen of this title or subchapter one of
chapter two of title twenty of the code shall constitute a misdemeanor.
  S 12. Section 11-4012 of the administrative code of the  city  of  New
York is amended by adding a new subdivision (h) to read as follows:
  (H) ANY PERSON WHO ENGAGES IN ANY ACT IN VIOLATION OF ANY TEMPORARY OR
PERMANENT  BAN  ON  HOLDING A LICENSE REQUIRED UNDER CHAPTER THIRTEEN OF
THIS TITLE OR ON ACTING AS A WHOLESALE DEALER,  CONTROLLING  PERSON,  OR
ASSOCIATE  AS IMPOSED BY THE COMMISSIONER OF FINANCE PURSUANT TO CHAPTER
THIRTEEN OF THIS TITLE, SHALL BE GUILTY OF A CLASS E FELONY. ANY  PERSON
WHO  VIOLATES THE PROVISIONS OF THIS SUBDIVISION AFTER PREVIOUSLY HAVING
BEEN CONVICTED OF A VIOLATION OF THIS SUBDIVISION SHALL BE GUILTY  OF  A
CLASS D FELONY.
  S 13. Subdivision (b) of section 11-4021 of the administrative code of
the  city of New York, as amended by chapter 556 of the laws of 2011, is
amended to read as follows:
  (b) The seized cigarettes and any vending machine or receptacle seized
therewith, but not the money contained in such vending machine or recep-
tacle shall thereupon be forfeited [to the city], unless the person from
whom the seizure is made, or the owner of such seized cigarettes,  vend-
ing  machine  or  receptacle,  or any other person having an interest in
such property, shall within [ten] THIRTY days [of] FROM  such  seizure[,
apply  to  the  commissioner  of  finance for a hearing to determine the
propriety of the seizure,] SEEK JUDICIAL REVIEW OF THE PROPRIETY OF SUCH
SEIZURE THROUGH A PROCEEDING UNDER ARTICLE SEVENTY-EIGHT  OF  THE  CIVIL
PRACTICE  LAW  AND RULES, or unless the commissioner of finance shall on
his OR HER own motion release the seized cigarettes, vending machine  or
receptacle.  [After  such hearing the commissioner of finance shall give
notice of his decision to the petitioner. The decision  of  the  commis-
sioner shall be reviewable for error, illegality, unconstitutionality or
any  other reason whatsoever by a proceeding under article seventy-eight
of the civil practice law and rules if application therefor is  made  to
the  supreme  court within thirty days after the giving of the notice of
such decision. Such proceeding shall  not  be  instituted  unless  there
shall  first  be  filed with the commissioner of finance an undertaking,
issued by a surety company authorized to transact business in  New  York
state  and approved by the superintendent of insurance of New York state
as to solvency and responsibility, in such amount as a  justice  of  the
supreme  court  shall  approve, to the effect that if such proceeding be
dismissed, or the seizure confirmed, the petitioner will pay  all  costs
and charges which may accrue in the prosecution of the proceeding.]
  S  14.  This  act  shall  take effect on the one hundred twentieth day
after it shall have become  a  law,  provided  that  the  department  of
finance  and the tax appeals tribunal may promulgate any rules necessary
for the implementation of this act prior to the effective date  of  this
act.