senate Bill S35

2013-2014 Legislative Session

Requires employees of dealers in firearms and gunsmiths to submit to a criminal background check

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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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Senate Actions - UPPERCASE
Jan 08, 2014 referred to codes
Jan 09, 2013 referred to codes

S35 - Bill Details

Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Add ยง400.00, Pen L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1002
2009-2010: S4456A

S35 - Bill Texts

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Requires employees of dealers in firearms to submit to state and national criminal background checks and sets forth procedures for employment certificates.

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BILL NUMBER:S35

TITLE OF BILL:
An act
to amend the penal law, in relation to requiring
background checks for employees authorized to possess or transfer
firearms in the course of a licensed firearms business

PURPOSE:
This bill would require all employees of gunsmiths and dealers of
firearms, whose duties include handling, selling, or otherwise
disposing of firearms to submit to an instant background check
through the National Instant Criminal Background Check System (NICS)
required under federal law for persons to purchase guns from licensed
dealers and gunsmiths.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends section 400.00 of the penal law by adding
a new subdivision 12-b to state that no firearm dealer may hire
anyone otherwise prohibited from possessing a firearm under federal
law. Potential employees must apply for an employment certificate
through the Division of Criminal Justice Services (DCJS), who would
review the application using NICS. If DCJS receives a negative
response from NICS for any employee, the dealer will be required to
deny employment to the applicant. Current employees of dealers would
be required to be reviewed by NICS and obtain an employment
certificate within six months of passage of this bill. The employment
certificate would be invalidated upon termination of employment.

Section 2 of the bill specifies the effective date as being 90 days
after being signed into law.

JUSTIFICATION:
Under current law, licensed firearms dealers are required to conduct
criminal background checks through the DOS on prospective purchasers
of firearms. However, while the dealers themselves are required to be
licensed, their employees, who have access to the firearms on a daily
basis, are not required to undergo any type of pre-employment
examination. This legislation would correct this anomaly by requiring
the DOS to administer background checks of all new employees through
the NICS. Since dealers routinely perform these checks multiple times
a day for purchasers, the bill will not impose a meaningful new
burden. However, it will help to ensure those ineligible to purchase
firearms are not handling or selling them.

PRIOR LEGISLATIVE HISTORY:
2011-12: S.1002 2009-10 - Referred to Codes

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the 90th day after it shall have become
law.


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

                                   35

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

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

AN ACT to amend the penal  law,  in  relation  to  requiring  background
  checks for employees authorized to possess or transfer firearms in the
  course of a licensed firearms business

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

  Section 1. Section 400.00 of the penal law is amended by adding a  new
subdivision 12-b to read as follows:
  12-B. GUNSMITH OR DEALER IN FIREARMS EMPLOYEES. (A) NO PERSON SHALL BE
EMPLOYED  BY  A  GUNSMITH  OR DEALER IN FIREARMS FOR DUTIES THAT INCLUDE
HANDLING, SELLING OR OTHERWISE DISPOSING OF FIREARMS, IF SUCH PERSON  IS
PROHIBITED FROM RECEIVING OR POSSESSING FIREARMS UNDER FEDERAL LAW OR IF
SUCH  PERSON WOULD BE INELIGIBLE FOR A LICENSE TO POSSESS FIREARMS UNDER
PARAGRAPH (C) OR (E) OF SUBDIVISION ONE OF THIS SECTION.
  (B) NO GUNSMITH OR DEALER IN FIREARMS  SHALL  EMPLOY  A  PERSON  WHOSE
DUTIES  INCLUDE  HANDLING,  SELLING  OR OTHERWISE DISPOSING OF FIREARMS,
ABSENT AN EXEMPTION PURSUANT TO PARAGRAPHS ONE AND TWO OF SUBDIVISION  A
OF SECTION 265.20 OF THIS CHAPTER, UNLESS:
  (I)  SUCH PERSON IS TWENTY-ONE YEARS OF AGE OR OLDER OR IS A MEMBER OF
THE UNITED STATES ARMED FORCES OR HAS BEEN HONORABLY  DISCHARGED  THERE-
FROM,  AND  SUCH EMPLOYEE HAS BEEN ISSUED A VALID EMPLOYMENT CERTIFICATE
BY THE DIVISION OF CRIMINAL JUSTICE SERVICES;
  (II) SUCH PERSON HAS OBTAINED AND POSSESSES  A  VALID  LICENSE  ISSUED
UNDER  THE PROVISIONS OF THIS SECTION OR SECTION 400.01 OF THIS ARTICLE;
OR
  (III) SUCH PERSON WAS EMPLOYED BY THE GUNSMITH OR DEALER  IN  FIREARMS
PRIOR  TO  THE  EFFECTIVE  DATE OF THIS SUBDIVISION AND NO MORE THAN SIX
MONTHS HAVE ELAPSED AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00351-01-3

S. 35                               2

  (C) APPLICATIONS FOR EMPLOYMENT CERTIFICATES SHALL BE SUBMITTED BY THE
APPLICANT'S PROSPECTIVE EMPLOYER TO THE  DIVISION  OF  CRIMINAL  JUSTICE
SERVICES.  BLANK  APPLICATIONS SHALL CONTAIN, AT A MINIMUM, THE INFORMA-
TION REQUIRED TO CONDUCT A BACKGROUND  CHECK  IN  THE  NATIONAL  INSTANT
CRIMINAL  BACKGROUND  CHECK  SYSTEM. ALL APPLICATIONS MUST BE SIGNED AND
VERIFIED BY THE APPLICANT.
  (D) UPON RECEIPT OF AN APPLICATION FOR AN EMPLOYMENT CERTIFICATE,  THE
DIVISION  OF  CRIMINAL JUSTICE SERVICES SHALL CONDUCT A BACKGROUND CHECK
IN THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK  SYSTEM  TO  DETERMINE
WHETHER THE APPLICANT IS QUALIFIED TO RECEIVE OR POSSESS A FIREARM UNDER
STATE  AND  FEDERAL LAW. IF THE RESULTS OF THE BACKGROUND CHECK INDICATE
THAT THERE IS NO INFORMATION THAT WOULD DISQUALIFY  THE  APPLICANT  FROM
RECEIVING  OR POSSESSING A FIREARM UNDER STATE OR UNDER FEDERAL LAW, THE
DIVISION OF CRIMINAL JUSTICE SERVICES SHALL DOCUMENT SUCH RESULT  ON  AN
EMPLOYMENT  CERTIFICATE.  IF THE BACKGROUND CHECK RESULTS IN A "DELAYED"
RESPONSE AS DESCRIBED IN 28 C.F.R. S  25.6,  THE  DIVISION  OF  CRIMINAL
JUSTICE  SERVICES SHALL NOT CERTIFY THE APPLICANT FOR EMPLOYMENT PENDING
RECEIPT OF A FOLLOW-UP "PROCEED"  RESPONSE  FROM  THE  NATIONAL  INSTANT
CRIMINAL  BACKGROUND  CHECK  SYSTEM  OR THE EXPIRATION OF THREE BUSINESS
DAYS (EXCLUSIVE OF THE DAY ON WHICH THE QUERY IS MADE), WHICHEVER OCCURS
FIRST.
  (E) THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ISSUE TO  QUALIFY-
ING  EMPLOYEES  AN  EMPLOYMENT CERTIFICATE, WHICH SHALL CERTIFY THAT THE
HOLDER OF SUCH CERTIFICATE IS ELIGIBLE  TO  HANDLE,  SELL  OR  OTHERWISE
DISPOSE  OF  FIREARMS  OR WEAPONS ON BEHALF OF THE GUNSMITH OR DEALER IN
FIREARMS.  SUCH CERTIFICATE SHALL BECOME INVALID UPON THE TERMINATION OF
THE EMPLOYEE'S EMPLOYMENT. SUCH CERTIFICATE SHALL  HAVE  THE  EFFECT  OF
AUTHORIZING  SUCH EMPLOYEE TO HANDLE, SELL OR OTHERWISE DISPOSE OF THOSE
FIREARMS THAT ARE  LAWFULLY  POSSESSED,  SOLD  OR  DISPOSED  OF  BY  THE
GUNSMITH  OR  DEALER  IN  FIREARMS  ONLY WHILE SUCH EMPLOYEE IS ACTUALLY
CONDUCTING BUSINESS ON BEHALF OF THE  GUNSMITH  OR  DEALER  IN  FIREARMS
NOTWITHSTANDING  THE  FACT  THAT  SUCH  WEAPONS  MAY NOT BE THE TYPE THE
EMPLOYEE WOULD OTHERWISE BE LICENSED OR AUTHORIZED TO POSSESS UNDER  THE
LAWS  OF  THIS STATE.  WHEN AN EMPLOYEE IS CONDUCTING BUSINESS ON BEHALF
OF A GUNSMITH OR DEALER IN FIREARMS AT ANY LOCATION OTHER THAN THE PREM-
ISES WHERE SUCH EMPLOYEE WORKS, THE EMPLOYEE SHALL HAVE IN  HIS  OR  HER
POSSESSION  A COPY OF HIS OR HER EMPLOYMENT CERTIFICATE OR VALID LICENSE
ISSUED UNDER THE PROVISIONS OF THIS SECTION OR SECTION  400.01  OF  THIS
ARTICLE  OR  DOCUMENTATION  OF  THE  EMPLOYEE'S EXEMPTION BASED ON PRIOR
EMPLOYMENT. COPIES OF SUCH CERTIFICATES OR LICENSES OR DOCUMENTATION  OF
EXEMPTION  SHALL  BE MAINTAINED BY THE GUNSMITH OR DEALER IN FIREARMS ON
THE PREMISES WHERE SUCH  EMPLOYEE  WORKS.  ALL  CERTIFICATES,  LICENSES,
DOCUMENTATION AND COPIES REFERRED TO IN THIS PARAGRAPH SHALL BE PRODUCED
UPON  REQUEST  BY ANY POLICE OFFICER OR PEACE OFFICER ACTING PURSUANT TO
HIS OR HER SPECIAL DUTIES.
  (F) ANY EMPLOYMENT IN VIOLATION OF THIS SUBDIVISION SHALL CONSTITUTE A
VIOLATION ON THE PART OF BOTH THE EMPLOYEE AND THE GUNSMITH OR DEALER IN
FIREARMS.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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