senate Bill S5215A

Signed By Governor
2013-2014 Legislative Session

Relates to penalties for the illegal shipment of cigarettes

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Sponsored By

Archive: Last Bill Status Via A365 - Signed by Governor


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

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Sep 27, 2013 signed chap.342
Sep 16, 2013 delivered to governor
Jun 21, 2013 returned to assembly
passed senate
3rd reading cal.1653
substituted for s5215a
Jun 21, 2013 substituted by a365b
ordered to third reading cal.1653
committee discharged and committed to rules
Jun 10, 2013 reported and committed to finance
Jun 06, 2013 print number 5215a
amend and recommit to health
May 14, 2013 referred to health

Votes

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Bill Amendments

Original
A (Active)
Original
A (Active)

S5215 - Bill Details

See Assembly Version of this Bill:
A365B
Law Section:
Public Health Law
Laws Affected:
Amd §1399-ll, Pub Health L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S2170, A1589
2009-2010: S2324, A1833

S5215 - Bill Texts

view summary

Relates to penalties for the illegal shipment of cigarettes and the authority of state and local authorities to bring actions to recover civil fines for such violations.

view sponsor memo
BILL NUMBER:S5215

TITLE OF BILL: An act to amend the public health law, in relation to
the shipment of cigarettes

PURPOSE: To strengthen enforcement of the law prohibiting the shipment
of cigarettes except under certain circumstances.

SUMMARY OF PROVISIONS:

Section 1 makes minor language changes to § 1399-11 of the public
health law which currently allows cigarettes to be shipped to
government employees acting in accordance with their official duties.
The language added provides that cigarettes shipped to a government
employee are permissible only when the government employee "presents
him or herself" as an employee acting in accordance with their
official duties. Subdivision 5 of § 1399-11 is amended to increase the
civil penalties to up to $100 for each pack of cigarettes shipped in
violation of the law or up to $5000, whichever is greater.

Section 2 adds a new subdivision to provide that the Attorney General
may bring an action to recover fines and to provide that the
Corporation Counsel may bring an action to recover civil fines for
violations within their jurisdiction. Any civil fines obtained by
these actions will be retained by the state or municipality bringing
such action and no person shall be required to pay civil penalties to
both the state and a municipality for the same violation.

JUSTIFICATION: The state's cigarette shipment law, which prohibits
the retail sale of cigarettes by common carriers, is another effective
tool to ensure that minors do not have access to purchase cigarettes.
Under the current wording of the statute, cigarettes can be legally
shipped to government employees acting in accordance with their
official duties Therefore shipping cigarettes to someone performing a
"sting" operation actually provides the violator with a valid defense
because the government employee buying the cigarettes is acting in
accordance with their official duties. Language in the bill addresses
this problem.

LEGISLATIVE HISTORY: 2011-12- A.1589- passed Assembly/S.2170-
Referred to Health 2009-10- A.1833- passed Assembly/S.2324- Referred
to Health 2008: A.7326- Passed Assembly/S.2001 - Referred to Health
2006: A.1128-B - Passed Assembly 2005: A.1128 - Codes 2004: A.11174 -
Codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.

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

                                  5215

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 14, 2013
                               ___________

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

AN  ACT  to  amend the public health law, in relation to the shipment of
  cigarettes

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

  Section  1.  Subdivisions  1, 2 and 5 of section 1399-ll of the public
health law, as added by chapter 262 of the laws of 2000, are amended  to
read as follows:
  1.  It  shall  be  unlawful  for any person engaged in the business of
selling cigarettes to ship or cause to be shipped any cigarettes to  any
person  in  this  state who is not: (a) a person licensed as a cigarette
tax agent or wholesale dealer under article twenty of  the  tax  law  or
registered  retail dealer under section four hundred eighty-a of the tax
law; (b) an export warehouse proprietor pursuant to chapter  52  of  the
internal  revenue  code  or  an  operator  of a customs bonded warehouse
pursuant to section 1311 or 1555 of title 19 of the United States  Code;
or  (c)  a  person  who  [is] PRESENTS HIMSELF OR HERSELF AS an officer,
employee or agent of the United  States  government,  this  state  or  a
department,  agency,  instrumentality  or  political  subdivision of the
United States or this state, when such person is  acting  in  accordance
with  his  or  her  official duties. For purposes of this subdivision, a
person is a licensed or registered agent or dealer  described  in  para-
graph  (a)  of  this subdivision if his or her name appears on a list of
licensed or registered agents or dealers published by the department  of
taxation  and finance, or if such person is licensed or registered as an
agent or dealer under article twenty of the tax law.
  2. It shall be unlawful for any common or contract carrier to knowing-
ly transport cigarettes to any person in this state reasonably  believed
by  such  carrier  to be other than a person described in paragraph (a),
(b) or (c) of subdivision one of  this  section.  For  purposes  of  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01177-01-3

S. 5215                             2

preceding  sentence,  if  cigarettes  are transported to a home or resi-
dence, it shall be presumed that the common  or  contract  carrier  knew
that such person was not a person described in paragraph (a), (b) or (c)
of  subdivision  one of this section. It shall be unlawful for any other
person to knowingly transport cigarettes to any person  in  this  state,
other  than to a person described in paragraph (a), (b) or (c) of subdi-
vision one of  this  section.  Nothing  in  this  subdivision  shall  be
construed  to  prohibit a person other than a common or contract carrier
OR A PERSON ENGAGED IN THE BUSINESS OF SELLING  CIGARETTES  from  trans-
porting  not  more  than eight hundred cigarettes at any one time to any
person in this state.
  5. Any person who violates the provisions of subdivision one or two of
this section shall be guilty of a class A misdemeanor and for  a  second
or subsequent violation shall be guilty of a class E felony. In addition
to  the criminal penalty, [the commissioner may impose a civil fine] ANY
PERSON WHO VIOLATES THE PROVISIONS OF SUBDIVISION ONE, TWO OR  THREE  OF
THIS  SECTION  SHALL  BE  SUBJECT  TO  A CIVIL PENALTY not to exceed THE
GREATER OF (A) five thousand dollars for each  such  violation  [on  any
person  who violates subdivision one or two of this section. The commis-
sioner may impose a civil fine not to exceed five thousand  dollars  for
each  violation  of  subdivision  three  of  this  section on any person
engaged in the business of selling cigarettes who ships or causes to  be
shipped  any  such  cigarettes  to any person in this state]; OR (B) ONE
HUNDRED DOLLARS FOR EACH  PACK  OF  CIGARETTES  SHIPPED,  CAUSED  TO  BE
SHIPPED OR TRANSPORTED IN VIOLATION OF SUCH SUBDIVISION.
  S 2. Section 1399-ll of the public health law, as added by chapter 262
of the laws of 2000, is amended by adding a new subdivision 6 to read as
follows:
  6. THE ATTORNEY GENERAL MAY BRING AN ACTION TO RECOVER THE CIVIL FINES
PROVIDED  BY  SUBDIVISION FIVE OF THIS SECTION AND FOR SUCH OTHER RELIEF
AS MAY BE DEEMED NECESSARY. IN ADDITION, THE CORPORATION COUNSEL OF  ANY
POLITICAL  SUBDIVISION  THAT  IMPOSES  A  TAX ON CIGARETTES MAY BRING AN
ACTION TO RECOVER THE CIVIL PENALTIES PROVIDED BY  SUBDIVISION  FIVE  OF
THIS  SECTION  AND FOR SUCH OTHER RELIEF AS MAY BE DEEMED NECESSARY WITH
RESPECT TO ANY CIGARETTES SHIPPED, CAUSED TO BE SHIPPED  OR  TRANSPORTED
IN VIOLATION OF THIS SECTION TO ANY PERSON LOCATED WITHIN SUCH POLITICAL
SUBDIVISION.  ALL  CIVIL  FINES  OBTAINED  IN  ANY  SUCH ACTION SHALL BE
RETAINED BY THE STATE OR MUNICIPALITY  BRINGING  SUCH  ACTION,  PROVIDED
THAT  NO  PERSON  SHALL  BE  REQUIRED TO PAY CIVIL PENALTIES TO BOTH THE
STATE AND A POLITICAL SUBDIVISION WITH RESPECT TO THE SAME VIOLATION  OF
THIS SECTION.
  S 3. This act shall take effect immediately.

Co-Sponsors

S5215A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A365B
Law Section:
Public Health Law
Laws Affected:
Amd §1399-ll, Pub Health L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S2170, A1589
2009-2010: S2324, A1833

S5215A (ACTIVE) - Bill Texts

view summary

Relates to penalties for the illegal shipment of cigarettes and the authority of state and local authorities to bring actions to recover civil fines for such violations.

view sponsor memo
BILL NUMBER:S5215A

TITLE OF BILL: An act to amend the public health law, in relation to
the shipment of cigarettes

PURPOSE OR GENERAL IDEA OF BILL: To strengthen enforcement of the law
prohibiting the shipment of cigarettes except under certain
circumstances.

SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill amends subdivision 1 of Public Health Law
1399-11, which currently allows shipping of cigarettes to government
employees acting in accordance with their official duties. The added
text provides that it is permissible to ship cigarettes to a
government employee only when such an individual "presents himself or
herself as" an employee acting in accordance with official duties;
amends subdivision 5 of section 1399-11 to provide an alternative to
the existing civil penalty of $5000 per violation. The alternative
civil penalty would be $100 per pack.

Section two adds a new subdivision 6 to section 1399-11 to provide
that the Attorney General may bring an action to recover civil
penalties and to provide that the Corporation Counsel of any political
subdivision that imposes a tax on cigarettes may bring an action to
recover civil penalties for violations within his or her jurisdiction.
Any civil penalties obtained by these actions will be retained by the
state or political subdivision bringing such action and no person
shall be required to pay civil penalties to both the state and a
political subdivision for the same violation.

JUSTIFICATION: New York State's cigarette shipment law, which
prohibits the transport and delivery of cigarettes by sellers and
common carriers to consumers, is an effective tool to ensure that
minors do not have access to purchase cigarettes. Prior to the
implementation of this law, studies found that youth had no trouble
purchasing cigarettes without proof of age via the Internet. Between
2000 and 2004, the rate of smoking among high school students in New
York State declined from 27.1% to 10.5%, due to many measures,
including tax increases and clean indoor air laws, as well as this
statute.

Pursuant to the statute's current text, cigarettes can be legally
shipped to government employees acting in accordance with their
official duties. Therefore, it is possible that a person who violates
the law by shipping cigarettes to someone performing a "sting"
operation could assert as a defense that the government employee
buying the cigarettes was acting in accordance with his or her
official duties. The proposed amendment to Public Health Law section
1399-11 (1) addresses this problem.

The addition of a new subdivision 6 to Public Health Law section
1399-11 provides for more effective enforcement of the statute by
permitting both the Attorney General and the Corporation Counsel of
any political subdivision that imposes a tax on cigarettes to bring
actions to recover civil penalties for statutory violations.


PRIOR LEGISLATIVE HISTORY: 2011-12- A.1589- passed Assembly/S.2170-
Referred to Health 2009-10- A.1833- passed Assembly/S.2324- Referred
to Health 2008: A.7326- Passed Assembly/S.2001 - Referred to Health
2006: A.1128-B - Passed Assembly 2005: A.1128 - Codes 2004: A.11174 -
Codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5215--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 14, 2013
                               ___________

Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when
  printed  to  be  committed  to  the  Committee  on Health -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the public health law, in relation to  the  shipment  of
  cigarettes

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

  Section 1. Subdivisions 1 and 5  of  section  1399-ll  of  the  public
health  law, as added by chapter 262 of the laws of 2000, are amended to
read as follows:
  1. It shall be unlawful for any person  engaged  in  the  business  of
selling  cigarettes to ship or cause to be shipped any cigarettes to any
person in this state who is not: (a) a person licensed  as  a  cigarette
tax  agent  or  wholesale  dealer under article twenty of the tax law or
registered retail dealer under section four hundred eighty-a of the  tax
law;  (b)  an  export warehouse proprietor pursuant to chapter 52 of the
internal revenue code or an  operator  of  a  customs  bonded  warehouse
pursuant  to section 1311 or 1555 of title 19 of the United States Code;
or (c) a person who is an officer,  employee  or  agent  of  the  United
States  government,  this state or a department, agency, instrumentality
or political subdivision of the United States or this state AND PRESENTS
HIMSELF OR HERSELF AS SUCH, when such person  is  acting  in  accordance
with  his  or  her  official duties. For purposes of this subdivision, a
person is a licensed or registered agent or dealer  described  in  para-
graph  (a)  of  this subdivision if his or her name appears on a list of
licensed or registered agents or dealers published by the department  of
taxation  and finance, or if such person is licensed or registered as an
agent or dealer under article twenty of the tax law.
  5. Any person who violates the provisions of subdivision one or two of
this section shall be guilty of a class A misdemeanor and for  a  second

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01177-11-3

S. 5215--A                          2

or subsequent violation shall be guilty of a class E felony. In addition
to  the criminal penalty, [the commissioner may impose a civil fine] ANY
PERSON WHO VIOLATES THE PROVISIONS OF SUBDIVISION ONE, TWO OR  THREE  OF
THIS  SECTION  SHALL  BE  SUBJECT  TO  A CIVIL PENALTY not to exceed THE
GREATER OF (A) five thousand dollars for each  such  violation  [on  any
person  who violates subdivision one or two of this section. The commis-
sioner may impose a civil fine not to exceed five thousand  dollars  for
each  violation  of  subdivision  three  of  this  section on any person
engaged in the business of selling cigarettes who ships or causes to  be
shipped  any  such  cigarettes  to any person in this state]; OR (B) ONE
HUNDRED DOLLARS FOR EACH  PACK  OF  CIGARETTES  SHIPPED,  CAUSED  TO  BE
SHIPPED OR TRANSPORTED IN VIOLATION OF SUCH SUBDIVISION.
  S 2. Section 1399-ll of the public health law, as added by chapter 262
of the laws of 2000, is amended by adding a new subdivision 6 to read as
follows:
  6.  THE  ATTORNEY  GENERAL  MAY  BRING  AN ACTION TO RECOVER THE CIVIL
PENALTIES PROVIDED BY SUBDIVISION FIVE OF  THIS  SECTION  AND  FOR  SUCH
OTHER  RELIEF  AS  MAY BE DEEMED NECESSARY. IN ADDITION, THE CORPORATION
COUNSEL OF ANY POLITICAL SUBDIVISION THAT IMPOSES A  TAX  ON  CIGARETTES
MAY  BRING AN ACTION TO RECOVER THE CIVIL PENALTIES PROVIDED BY SUBDIVI-
SION FIVE OF THIS SECTION AND FOR SUCH OTHER RELIEF  AS  MAY  BE  DEEMED
NECESSARY  WITH  RESPECT TO ANY CIGARETTES SHIPPED, CAUSED TO BE SHIPPED
OR TRANSPORTED IN VIOLATION OF THIS SECTION TO ANY PERSON LOCATED WITHIN
SUCH POLITICAL SUBDIVISION. ALL CIVIL PENALTIES  OBTAINED  IN  ANY  SUCH
ACTION  SHALL BE RETAINED BY THE STATE OR POLITICAL SUBDIVISION BRINGING
SUCH ACTION, PROVIDED THAT NO PERSON SHALL  BE  REQUIRED  TO  PAY  CIVIL
PENALTIES  TO BOTH THE STATE AND A POLITICAL SUBDIVISION WITH RESPECT TO
THE SAME VIOLATION OF THIS SECTION.
  S 3. This act shall take effect immediately.

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