senate Bill S220

2013-2014 Legislative Session

Relates to licensing of gun dealer employees, recertification of gun licensees and reporting of misdemeanor crimes of domestic violence

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Jan 08, 2014 referred to codes
Jan 09, 2013 referred to codes

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S220 - Bill Details

Current Committee:
Senate Codes
Law Section:
General Business Law
Laws Affected:
Ren Art 40 §§900 & 901 to be Art 50 §§1001 & 1002, add Art 40 §§900 - 904, Gen Bus L; amd §400.00, Pen L; amd §212, Judy L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1509
2009-2010: S5917

S220 - Bill Texts

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Relates to licensing of gun dealer employees, recertification of gun licensees and reporting of misdemeanor crimes of domestic violence; requires employee certification and certificates of employment.

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BILL NUMBER:S220

TITLE OF BILL:

An act
to amend the general business law, the penal law and the
judiciary law, in
relation to licensing of gun dealer employees, recertification of gun
licensees and
reporting of misdemeanor crimes of domestic violence

PURPOSE OF THE BILL:

This bill would enhance New York's ability to ensure that individuals
in possession of firearms licenses and who sell guns at gun stores
are legally entitled to possess these weapons. The bill would require
that:
(1) employees of gunsmiths and gun dealers undergo a National Instant
Criminal Background Check System (NICS) check; (2) any person holding
a New York firearm, gunsmith or firearm dealer license undergo a NICS
check every three or five years; and (3) the administrator of the
courts establish a procedure for transmission of information about
persons convicted of misdemeanor crimes of domestic violence to the
NICS index.
In order to help prevent thefts of weapons, it also would remove the
street addresses of firearm licensees from the category of public
records.

SUMMARY OF PROVISIONS:

Section 1 of the bill would re-number the existing Article 40 of the
General Business Law and add a new Article 40 entitled "Employees of
Gunsmiths and Dealers in Firearms, Rifles and Shotguns." Under this
article, it would be unlawful for a gun dealer - defined as a person
or entity licensed as a dealer in firearms under Penal Law § 400 or
pursuant to 18 U.S.C. § 923 - to employ a person who would in any
way handle firearms, rifles or shotguns, unless the dealer had
conducted a NICS check which demonstrated that the employee's
possession of such weapons would not violate federal law. Upon
receipt of a favorable NICS result, the dealer would complete and
file a certificate of employment with the State Police, and retain a
copy of the certificate on the dealer's premises A dealer who
employed someone without obtaining a favorable NICS check would be
guilty of a misdemeanor.

Section 2 of the bill would add a new Penal Law § 400.00(10-a) to
require that any person holding a license issued pursuant to section
400.00 must be "recertified" by the licensing official upon renewal
of the license or every five years, by having a NICS check conducted
which demonstrates that possession of a firearm by the licensee would
not violate federal law Licensing officials would have until December
1, 2014 to conduct these checks on all persons who hold licenses on the
effective date of this act, pursuant to a schedule promulgated by the
superintendent of state police, who would also have the authority to
promulgate rules to effectuate the implementation of this new
requirement.


Section 3 of the bill would require the Administrator of the Courts
to adopt rules to provide a procedure for transmission of information
about persons convicted of misdemeanor crimes of domestic violence to
the NICS index.

Section 4 of the bill would remove a provision that makes the address
of a gun licensee a public record.

Section 5 of the bill contains the effective date.

EXISTING LAW:

The NICS index contains records concerning convictions, mental health
adjudications and other events that may disqualify a person from
purchasing a firearm, which under federal law is broadly defined to
include any type of weapon which will, is designed to, or may be
converted to expel a projectile by the action of an explosive.
Federal Firearms Licensees (FFLs) must check the NICS index before
transferring a firearm to a customer.

Under Chapter 491 of the laws of 2008, the Offices of Mental Health
(OMH) and Mental Retardation and Developmental Disabilities (OMRDD)
are authorized to transmit records of mental health disqualifying
events, such as involuntary commitments, to NICS. Since the effective
date of this legislation, OMH has transmitted to NICS approximately
150,000 records involving involuntary commitments of approximately
75,000 people to OMH facilities between 1989 and March 31, 2009.

Possession of a pistol or revolver is generally illegal in New York
unless the person has obtained a license under Penal Law § 400.00.
Except in Westchester, Nassau and Suffolk counties, and in New York
City, licensing officials issue permanent licenses that remain valid
until revoked, Licenses must be renewed every five years in
Westchester, Nassau and Suffolk Counties, and every three years in
New York City, Gunsmiths and dealers in firearms also must obtain
licenses, which must be renewed every three years.

A licensee's conviction of a felony or other serious offense operates
as a revocation of the license. The Division of Criminal Justice
services (DCJS) alerts a licensing official when it receives
notification from a police agency or court that a licensee has been
fingerprinted for a criminal offense in New York State.

Under Penal Law § 400.00(5), the names and addresses of gun licensees
are public records.

STATEMENT IN SUPPORT:

1. Use of NICS to Ensure that Licenses Issued to Persons Disqualified
from Possessing Handguns under Federal Law are Revoked.

In New York State, there are over 940,000 active pistol and revolver
licenses on file with the Division of State Police (DSP), not
including licenses issued by New York City. Except in those few
counties in which licenses are issued only for limited terms and must
be periodically renewed, there is no existing statutory mechanism for
a licensing official to know whether a holder of a license has become


disqualified from possessing a weapon as a result of a mental health
commitment or an out-of-state conviction. Moreover, some of the
active licenses in the DSP database were issued as "permanent"
licenses as early as 1936, and it is reasonable to assume that a
number of the license holders are no longer alive.

This bill would help to address these issues in a manner that will not
unduly burden law-abiding gun owners or local licensing officials, by
requiring gun licensees to have their licenses "recertified" every
five years by a NICS check. This approach is advantageous for several
reasons. First, it would not change existing law that permits
licensing officials in most jurisdictions to issue permanent
licenses, nor would it make existing permanent licenses subject to
expiration. Instead, it would allow a permanent license to remain
valid unless a NICS check demonstrates that the licensee's
continued possession of a pistol or revolver would violate federal
law.

Second, a NICS check, rather than a full background check, can be
accomplished promptly and without imposing an undue burden on local
licensing officials. Indeed, in the vast majority of cases, it is
expected that the NICS check will be "clean," and the licensing
official will merely have to report that fact to DSP. In cases in
which the NICS check reveals a disqualification, the licensing
official will have to determine whether the NICS information is
accurate and may have to revoke a license and notify DSP of the
revocation, just as he or she is currently required to do when
notified that the license holder has been convicted of a felony
offense. The limited burden imposed by this process is greatly
outweighed by the benefits to public safety.

Third, under this bill, localities will have the ability to offset any
expense created by this legislation. The bill authorizes a county to
impose a small fee on licensees of no more than $20.00, to help
defray any new costs that may result from the recertification
process. In addition, licensing officials will have five years to
complete recertifications for existing license holders, pursuant to a
schedule promulgated by the Superintendent of State Police.

Fourth, a NICS check - rather than a more burdensome full background
check will be sufficient in the vast majority of cases to identify
licensees whose possession of a handgun is not longer lawful. The
NICS index has been significantly enhanced by the addition of over
150,000 disqualifying mental health records, and would be further
enhanced by provisions of this bill that will result in information
being included in the index concerning convictions for misdemeanor
crimes of domestic violence. A NICS check every five years will
ensure that the official is notified of two events that may affect
the licensee's continued eligibility to possess a handgun: (a) an
involuntary commitment to a mental health facility; and (b) a
conviction, in any state, of a disqualifying offense that has been
reported to the NICS index.

Finally, an additional benefit of the NICS recertification process is
that it will allow county clerks and DSP to update their records of
active gun licensees. Any licensee who does not obtain a five-year
recertification will have his or her license revoked. This will


purge the existing state and local license databases of deceased gun
licensees, and provide a means by which law enforcement officials can
begin to investigate the whereabouts of any handguns that are
unaccounted for.

2. Requiring NICS Checks for Gun Dealer Employees

The NICS index also can provide a valuable tool to enhance the safety
of gun dealerships. The majority of gun dealerships in New York
are run safely and responsibly. Nonetheless, criminals seeking to
obtain weapons illegally will continue to fuel an underground market
for illegal weapons, some of which may be obtained through thefts of
guns from licensed gun dealers.

New York can take the simple step of requiring that employees who
handle, possess and sell handguns and rifles at a gun shop have a
NICS check in order to ensure that felons and others who
are-disqualified from possessing weapons do not have access to these
guns. Under the bill, a state-licensed firearm dealer or a FFL would
be required to run a NICS background check on a prospective
employee. The dealer would be required to complete a certificate of
employment that records the favorable result of that check, and to
tile a copy of the certificate with the DSP. Failure to comply with
the statute, or employing a person who did not pass the NICS check
would be a misdemeanor.

This system would help to fill a gap in existing law. Under current
law, a person who is disqualified from personally purchasing or
possessing these weapons nonetheless may handle, possess and sell
them as an employee of a gun dealer. Indeed, Wal-Mart, the nation's
largest gun dealer, recently voluntarily agreed to conduct background
checks on its employees who handle guns. This bill would remove this
loophole for all gun dealers.

3. Reporting Misdemeanor Crimes of Domestic Violence to the NICS index

New York can take another step to enhance its reporting of
disqualifying information to the NICS index. Under federal law, it is
illegal to sell a firearm to any person who has been convicted of a
misdemeanor crime of domestic violence 18 U S.C. § 922(d) (9)
Pursuant to 18 U.S.C. § 921(33), a misdemeanor crime of domestic
violence includes any state law misdemeanor offense that has as an
element "the use or attempted use of physical force, or the
threatened use of a deadly weapon committed by a current or former
spouse, parent or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is cohabitating with
or has cohabitated with the victim as a spouse, parent, or guardian,
or by a person similarly situated to a spouse, parent, or guardian of
the victim."

In New York, there is no statute defining a misdemeanor offense that
includes both the "force" and "relationship" elements contained in
the federal definition. As a result, there is currently no meaningful
way for the State to identify particular convictions that meet the
federal definition and transmit that information to NICS.


This bill would require the Administrator of the Courts to develop
such a mechanism, which could include sending the conviction
information directly to NICS or to DCJS. Because there are only a
limited number of misdemeanor crimes that contain the required
"force" element, and only certain types of relationships that satisfy
the federal definition, judges should have no great difficulty
identifying reportable convictions at the time of sentencing, so that
they could be transmitted for inclusion in NICS.

4. Address Confidentiality

Finally, county and law enforcement officials have raised concerns
about Penal Law § 400.00(5), which now provides that names and
addresses of license holders are. public records. Making information
public about where would-be thieves could find firearms to steal, or
which houses they could safely target because no licensee resides at
that address, is inconsistent with public safety.

Under this bill, names of licensees would remain public records, but
their addresses would not. As a result, and as with other law
enforcement records, a licensee's address would only become public if
it did not fall within one of the exclusions set forth in Public
Officers Law § 87 (2).

BUDGET IMPLICATIONS:

This bill would have no State fiscal impact. Any costs to counties as
a result of requiring NICS checks for gun licensees would be offset
by their ability to charge a nominal fee to licensees.

EFFECTIVE DATE:

This bill would take effect on November 1, 2013, except that the
requirement that gun dealers conduct NICS checks of their employees
would not become effective until 60 days after the Superintendent of
State Police approved a form for a certificate of employment to be
completed and filed by gun dealers.

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

                                   220

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

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

AN ACT to amend the general business law, the penal law and the  judici-
  ary  law,  in relation to licensing of gun dealer employees, recertif-
  ication of gun licensees and reporting of misdemeanor crimes of domes-
  tic violence

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

  Section 1. Article 40 and sections 900 and 901 of the general business
law,  as  renumbered  by chapter 407 of the laws of 1973, are renumbered
article 50 and sections 1001 and 1002 and a new article 40 is  added  to
read as follows:
                               ARTICLE 40
                  EMPLOYEES OF GUNSMITHS AND DEALERS IN
                      FIREARMS, RIFLES AND SHOTGUNS
SECTION 900. DEFINITIONS.
        901. EMPLOYEE CERTIFICATION.
        902. CERTIFICATE OF EMPLOYMENT.
        903. RULES AND REGULATIONS.
        904. VIOLATIONS.
  S 900. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
  1. "DEALER" MEANS ANY PERSON, FIRM, PARTNERSHIP, CORPORATION OR COMPA-
NY  LICENSED  AS  A DEALER IN FIREARMS PURSUANT TO SECTION 400.00 OF THE
PENAL LAW OR PURSUANT TO 18 U.S.C.  923.
  2. "GUNSMITH" MEANS ANY  PERSON,  FIRM,  PARTNERSHIP,  CORPORATION  OR
COMPANY  LICENSED  AS A GUNSMITH PURSUANT TO SECTION 400.00 OF THE PENAL
LAW.
  3. "EMPLOYEE" MEANS A PERSON EMPLOYED BY  A  DEALER  OR  GUNSMITH  AND
WHOSE  DUTIES  INCLUDE  THE  HANDLING, SELLING OR OTHERWISE DISPOSING OF
FIREARMS, RIFLES OR SHOTGUNS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00272-01-3

S. 220                              2

  4. "FIREARM" HAS THE SAME MEANING AS THAT TERM IS DEFINED IN  SUBDIVI-
SION THREE OF SECTION 265.00 OF THE PENAL LAW.
  5. "RIFLE" HAS THE SAME MEANING AS THAT TERM IS DEFINED IN SUBDIVISION
ELEVEN OF SECTION 265.00 OF THE PENAL LAW.
  6.  "SHOTGUN" HAS THE SAME MEANING AS THAT TERM IS DEFINED IN SUBDIVI-
SION TWELVE OF SECTION 265.00 OF THE PENAL LAW.
  7. "SUPERINTENDENT" MEANS THE SUPERINTENDENT OF STATE POLICE.
  S 901. EMPLOYEE CERTIFICATION. NO DEALER  SHALL  EMPLOY  ANY  EMPLOYEE
UNLESS:
  1.  SUCH  EMPLOYEE  IS TWENTY-ONE YEARS OR OLDER OR IS A MEMBER OF THE
UNITED STATES ARMED FORCES OR HAS BEEN HONORABLY  DISCHARGED  THEREFROM;
AND
  2. THE DEALER EMPLOYING SUCH EMPLOYEE HAS CONDUCTED A NATIONAL INSTANT
CRIMINAL  BACKGROUND  CHECK  OF  SUCH  EMPLOYEE AND IS NOTIFIED THAT THE
INFORMATION AVAILABLE IN  THE  SYSTEM  DOES  NOT  DEMONSTRATE  THAT  THE
POSSESSION  OF  A FIREARM, RIFLE OR SHOTGUN BY SUCH PERSON WOULD VIOLATE
18 U.S.C. 922(G) OR ANY OTHER APPLICABLE LAW.
  S 902. CERTIFICATE OF  EMPLOYMENT.  A  DEALER  EMPLOYING  AN  EMPLOYEE
SHALL,  SUBSEQUENT  TO CONDUCTING A NATIONAL INSTANT CRIMINAL BACKGROUND
CHECK, COMPLETE A CERTIFICATE OF  EMPLOYMENT  IN  DUPLICATE  ON  A  FORM
APPROVED BY THE SUPERINTENDENT. ONE COPY OF THE FORM SHALL BE FILED WITH
THE  SUPERINTENDENT  IMMEDIATELY UPON EMPLOYMENT OF THE EMPLOYEE AND ONE
COPY OF SUCH CERTIFICATE SHALL BE RETAINED BY THE DEALER  AND  AVAILABLE
ON PREMISES FOR INSPECTION BY ANY POLICE OFFICER. SUCH CERTIFICATE SHALL
REMAIN  VALID FOR A PERIOD NOT TO EXCEED THREE YEARS FROM THE DATE FILED
WITH THE SUPERINTENDENT PROVIDED THAT DURING THAT PERIOD POSSESSION OF A
FIREARM, RIFLE OR SHOTGUN BY THE EMPLOYEE WOULD NOT  VIOLATE  18  U.S.C.
922(G)  OR ANY OTHER APPLICABLE LAW. SUCH CERTIFICATE SHALL BE RENEWABLE
BY THE DEALER.
  S 903. RULES AND REGULATIONS. THE SUPERINTENDENT MAY PROMULGATE  RULES
AND REGULATIONS TO EFFECTUATE THE PROVISIONS OF THIS ARTICLE.
  S 904. VIOLATIONS. ANY DEALER WHO:
  1.  EMPLOYS AN EMPLOYEE WITHOUT CONDUCTING A NATIONAL INSTANT CRIMINAL
BACKGROUND CHECK OF THE EMPLOYEE IN  WHICH  THE  RESULTS  INDICATE  THAT
POSSESSION  OF  A  FIREARM,  RIFLE  OR SHOTGUN BY THE EMPLOYEE WOULD NOT
VIOLATE 18 U.S.C.  922(G) OR ANY OTHER APPLICABLE LAW, OR
  2. EMPLOYS AN EMPLOYEE WITHOUT  COMPLETING,  FILING  OR  DISPLAYING  A
CERTIFICATE OF EMPLOYMENT, OR
  3. CONTINUES TO EMPLOY AN EMPLOYEE WHEN THE DEALER HAS RECEIVED ACTUAL
NOTICE  THAT  POSSESSION  OF A FIREARM, RIFLE OR SHOTGUN BY THE EMPLOYEE
WOULD VIOLATE 18 U.S.C. 922(G) OR ANY  OTHER  APPLICABLE  LAW  SHALL  BE
GUILTY OF A MISDEMEANOR.
  S 2. Section 400.00 of the penal law is amended by adding a new subdi-
vision 10-a to read as follows:
  10-A.  LICENSE:  NATIONAL  INSTANT CRIMINAL BACKGROUND CHECK RECERTIF-
ICATION. ANY LICENSEE APPLYING FOR A LICENSE PURSUANT TO  THIS  ARTICLE,
AND IN THE CITY OF NEW YORK OR IN THE COUNTIES OF WESTCHESTER, NASSAU OR
SUFFOLK,  UPON  RENEWAL  OR RECERTIFICATION OF THE LICENSE, SHALL BE THE
SUBJECT OF A NATIONAL INSTANT CRIMINAL BACKGROUND CHECK PERFORMED BY THE
LICENSING OFFICIAL. NO LICENSE SHALL BE ISSUED, RENEWED  OR  RECERTIFIED
BY  THE  LICENSING  OFFICIAL  UNLESS THE RESULTS OF THE NATIONAL INSTANT
CRIMINAL BACKGROUND CHECK DEMONSTRATES THAT POSSESSION OF A  FIREARM  BY
THE  LICENSEE WOULD NOT VIOLATE 18 U.S.C. 922(G) OR ANY OTHER APPLICABLE
LAW. ELSEWHERE THAN IN THE CITY OF NEW YORK OR THE COUNTIES OF WESTCHES-
TER, NASSAU OR SUFFOLK, A LICENSEE  WHO  HAS  BEEN  ISSUED  ANY  LICENSE
PURSUANT  TO  THIS  ARTICLE PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-

S. 220                              3

SION, SHALL HAVE A NATIONAL INSTANT CRIMINAL BACKGROUND CHECK  PERFORMED
BY  THE LICENSING OFFICIAL PRIOR TO THE FIRST DAY OF DECEMBER, TWO THOU-
SAND EIGHTEEN, IN ACCORDANCE WITH A SCHEDULE TO BE  CONTAINED  IN  RULES
PROMULGATED  BY  THE SUPERINTENDENT OF STATE POLICE AND EVERY FIVE YEARS
THEREAFTER. NO SUCH LICENSE SHALL REMAIN VALID UNLESS THE RESULTS OF THE
NATIONAL INSTANT CRIMINAL BACKGROUND CHECK DEMONSTRATES THAT  POSSESSION
OF  A  FIREARM BY THE LICENSEE WOULD NOT VIOLATE 18 U.S.C. 922(G) OR ANY
OTHER APPLICABLE LAW.   A COUNTY OR THE  CITY  OF  NEW  YORK  MAY,  UPON
ACTION  OF  ITS  LEGISLATIVE BODY, AUTHORIZE A FEE, NOT TO EXCEED TWENTY
DOLLARS, TO BE COLLECTED AND PAID INTO THE COUNTY OR CITY  TREASURY,  TO
PAY  FOR  ADMINISTRATIVE  COSTS  INCURRED  FOR  RECERTIFICATION OF A GUN
LICENSE PURSUANT TO THIS  SUBDIVISION.    THE  SUPERINTENDENT  OF  STATE
POLICE MAY PROMULGATE RULES AND REGULATIONS TO EFFECTUATE THE PROVISIONS
OF THIS SUBDIVISION.
  S  3.  Subdivision 5 of section 400.00 of the penal law, as amended by
chapter 332 of the laws of 1994, is amended to read as follows:
  5. Filing of approved applications. The application for  any  license,
if  granted,  shall  be filed by the licensing officer with the clerk of
the county of issuance, except that in the city of New York and, in  the
counties  of  Nassau  and Suffolk, the licensing officer shall designate
the place of filing in the appropriate division, bureau or unit  of  the
police department thereof, and in the county of Suffolk the county clerk
is hereby authorized to transfer all records or applications relating to
firearms  to  the  licensing  authority  of that county.   The name [and
address] of any person to whom an application for any license  has  been
granted shall be a public record. Upon application by a licensee who has
changed  his  place  of  residence such records or applications shall be
transferred to the appropriate officer at the licensee's  new  place  of
residence.  A  duplicate  copy of such application shall be filed by the
licensing officer in the executive department, division of state police,
Albany, within ten days after issuance of the license. Nothing  in  this
subdivision  shall be construed to change the expiration date or term of
such licenses if otherwise provided for in law.
  S 4. Subdivision 2 of section 212 of the judiciary law is  amended  by
adding a new paragraph (s) to read as follows:
  (S) ADOPT RULES TO REQUIRE TRANSMISSION TO THE CRIMINAL JUSTICE INFOR-
MATION  SERVICES  DIVISION  OF THE FEDERAL BUREAU OF INVESTIGATION OR TO
THE DIVISION OF CRIMINAL JUSTICE SERVICES, OF THE NAME AND OTHER IDENTI-
FYING INFORMATION OF EACH PERSON CONVICTED OF A MISDEMEANOR IN THE STATE
WHICH CONSTITUTES A "MISDEMEANOR CRIME OF DOMESTIC VIOLENCE" AS  DEFINED
IN 18 USC 921(A)(33)(A).
  S  5.  This act shall take effect November 1, 2013; provided, however,
that section one of this act shall not take effect  until  the  sixtieth
day after it shall have become a law.

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