Senate Bill S8135

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8135
 
                             I N  S E N A T E
 
                              March 26, 2020
                                ___________
 
 Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN ACT to amend the public health law and the tax law,  in  relation  to
   requiring a business that is shown to have sold a tobacco product to a
   minor to close pending the completion of an investigation
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 1399-cc of the public  health  law  is  amended  by
 adding a new subdivision 8 to read as follows:
   8.  ANY PERSON OPERATING A PLACE OF BUSINESS WHEREIN TOBACCO PRODUCTS,
 HERBAL CIGARETTES, LIQUID NICOTINE, SHISHA OR ELECTRONIC CIGARETTES  ARE
 SOLD  OR  OFFERED  FOR  SALE,  WHO IS FOUND IN VIOLATION OF THIS SECTION
 SHALL IMMEDIATELY CLOSE SUCH PLACE OF BUSINESS PENDING THE COMPLETION OF
 THE ENFORCEMENT ACTION OR HEARING BY AN ENFORCEMENT OFFICER, PURSUANT TO
 SECTION THIRTEEN HUNDRED NINETY-NINE-FF OF THIS ARTICLE.
   § 2. Subdivisions 2, 3, 4, 5 and 6 of section 1399-ee  of  the  public
 health  law, subdivisions 2, 3, 4, and 5 as amended and subdivision 6 as
 added by chapter 162 of the  laws  of  2002,  are  amended  to  read  as
 follows:
   2.  If  the  enforcement  officer  determines  after  a hearing that a
 violation of this article has occurred, he or she shall impose  a  civil
 penalty  of  a  minimum  of three hundred dollars, but not to exceed one
 thousand dollars for a first violation, and a minimum  of  five  hundred
 dollars,  but  not  to exceed one thousand five hundred dollars for each
 subsequent violation, unless a different penalty is  otherwise  provided
 in  this  article AND DIRECT THE COMMISSIONER OF TAXATION AND FINANCE TO
 SUSPEND THE DEALER'S REGISTRATION FOR A PERIOD NOT LESS THAN FIVE YEARS.
 [The enforcement officer shall advise the retail dealer  that  upon  the
 accumulation  of  three  or  more  points  pursuant  to this section the
 department of taxation and finance shall suspend the dealer's  registra-
 tion.]  If  the  enforcement  officer  determines after a hearing that a
 retail dealer was selling tobacco products while their registration  was
 suspended  or permanently revoked pursuant to [subdivision three or four

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

                                                            LBD15400-01-0

 S. 8135                             2

 of] this section, he or she shall impose a civil penalty of  twenty-five
 hundred dollars.
   3.  [(a)  Imposition of points. If the enforcement officer determines,
 after a hearing, that the retail  dealer  violated  subdivision  one  of
 section  thirteen hundred ninety-nine-cc of this article with respect to
 a prohibited sale to a minor, he or she shall, in addition  to  imposing
 any other penalty required or permitted pursuant to this section, assign
 two  points  to  the  retail  dealer's  record  where the individual who
 committed the violation did not hold a certificate of completion from  a
 state  certified  tobacco sales training program and one point where the
 retail dealer demonstrates that the person who committed  the  violation
 held  a  certificate  of completion from a state certified tobacco sales
 training program.
   (b) Revocation. If the enforcement officer determines, after  a  hear-
 ing,  that a retail dealer has violated this article four times within a
 three year time frame he or she shall, in addition to imposing any other
 penalty required or permitted by this section, direct  the  commissioner
 of  taxation  and  finance  to  revoke the dealer's registration for one
 year.
   (c) Duration of points. Points assigned to a  retail  dealer's  record
 shall  be  assessed  for  a period of thirty-six months beginning on the
 first day of the month following the assignment of points.
   (d) Reinspection. Any retail dealer who is assigned points pursuant to
 paragraph (a) of this subdivision shall  be  reinspected  at  least  two
 times  a  year  by  the  enforcement  officer  until points assessed are
 removed from the retail dealer's record.
   (e) Suspension. If the department determines that a retail dealer  has
 accumulated  three  points  or  more,  the  department  shall direct the
 commissioner of taxation and finance to suspend such dealer's  registra-
 tion for six months. The three points serving as the basis for a suspen-
 sion shall be erased upon the completion of the six month penalty.
   (f)  Surcharge.  A  fifty  dollar  surcharge  to be assessed for every
 violation will be made available to enforcement officers  and  shall  be
 used  solely  for compliance checks to be conducted to determine compli-
 ance with this section.
   4.] (a) If the enforcement officer determines, after a hearing, that a
 retail dealer has violated this article  while  their  registration  was
 suspended  pursuant  to  subdivision  three  of  this section, he or she
 shall, in addition to imposing any other penalty required  or  permitted
 by  this  section,  direct  the  commissioner of taxation and finance to
 permanently revoke the dealer's registration and not permit  the  dealer
 to obtain a new registration.
   (b)  If  the  enforcement  officer determines, after a hearing, that a
 vending machine operator has violated this article three times within  a
 two  year period, or four or more times cumulatively he or she shall, in
 addition to imposing any other penalty required  or  permitted  by  this
 section,  direct the commissioner of taxation and finance to suspend the
 vendor's registration for one year and not permit the vendor to obtain a
 new registration for such period.
   [5.] 4. The department shall publish a notification of  the  name  and
 address  of  any  retailer  violating the provisions of this section and
 indicate the number of times the dealer has violated the  provisions  of
 this  section.  The  notification  shall  be published in a newspaper of
 general circulation in the locality in which the retailer is located.
   [6. (a) In any  proceeding  pursuant  to  subdivision  three  of  this
 section  to assign points to a retail dealer's record, the retail dealer

 S. 8135                             3

 shall be assigned one point instead of two points where the] 5. (A)  THE
 retail  dealer  [demonstrates  that  the  person]  who committed [the] A
 violation [of] PURSUANT TO section thirteen  hundred  ninety-nine-cc  of
 this  article  [held]  MAY  COMPLETE  AND RECEIVE a valid certificate of
 completion from a state certified  tobacco  sales  training  program  TO
 REDUCE  THE  NUMBER OF YEARS SUCH RETAIL LICENSE IS SUSPENDED. AFTER THE
 COMPLETION OF SUCH PROGRAM, THE RETAIL DEALER SHALL SUBMIT SUCH  CERTIF-
 ICATE  OF  COMPLETION  TO  THE  COMMISSIONER OF TAXATION AND FINANCE WHO
 SHALL DETERMINE WHETHER TO REDUCE SUCH RETAIL DEALER'S TIME  OF  SUSPEN-
 SION.
   (b)  A  state  certified  tobacco sales training program shall include
 instruction in the following elements:
   (1) the health effects of tobacco use, especially at a young age;
   (2) the legal purchase age and the additional requirements of  section
 thirteen hundred ninety-nine-cc of this article;
   (3) legal forms of identification and the key features thereof;
   (4)  reliance  upon  legal  forms  of  identification and the right to
 refuse sales when acting in good faith;
   (5) means of identifying fraudulent identification of attempted under-
 age purchasers;
   (6) techniques used to refuse a sale;
   (7) the penalties arising out of unlawful sales to  underage  individ-
 uals; and
   (8) the significant disciplinary action or loss of employment that may
 be  imposed  by  the retail dealer for a violation of the law or a devi-
 ation from the policies of the retail dealer in  respect  to  compliance
 with such law.
   (c)  A tobacco sales training program may be given and administered by
 a retail dealer duly registered under section four hundred  eighty-a  of
 the tax law which operates five or more registered locations, by a trade
 association  whose members are registered as retail dealers, by national
 and regional franchisors who have granted at least  five  franchises  in
 the  state  to  persons  who  are registered as such retail dealers by a
 cooperative corporation with five or more members who are registered  as
 retail  dealers  and  are  operating  in this state, and by a wholesaler
 supplying fifty or more retail dealers. A person or entity administering
 such training program shall issue certificates of completion to  persons
 successfully completing such a training program. Such certificates shall
 be  prima facie evidence of the completion of such a training program by
 the person named therein.
   (d) A certificate of completion may be issued for a  period  of  three
 years,  however  such  certificate  shall  be invalidated by a change in
 employment.
   (e) Entities authorized pursuant to paragraph (c) of this  subdivision
 to  give  and  administer  a tobacco sales training program may submit a
 proposed curriculum, a facsimile of any training aids and materials, and
 a list of training locations to the department for review. Training aids
 may include the use of video, computer based instruction, printed  mate-
 rials and other formats deemed acceptable to the department. The depart-
 ment  shall  certify  programs which provide instruction in the elements
 set forth in paragraph (b) of this subdivision in a clear and meaningful
 fashion. Programs approved by the department shall be  certified  for  a
 period  of  three  years at which time an entity may reapply for certif-
 ication. A non-refundable fee in the amount  of  three  hundred  dollars
 shall be paid to the department with each application.

 S. 8135                             4
 
   §  3.  Paragraph 1 of subdivision h of section 1607 of the tax law, as
 amended by chapter 162 of the laws  of  2002,  is  amended  to  read  as
 follows:
   1.  A  license  shall  be  suspended  for  a period of six months upon
 notification to the division by the commissioner of health of a  lottery
 sales  agent's  [accumulation  of  three  or more points] RETAIL LICENSE
 BEING REVOKED  pursuant  to  [subdivision  three  of]  section  thirteen
 hundred ninety-nine-ee of the public health law.
   §  4.  This  act shall take effect on the ninetieth day after it shall
 have become a law.