Senate Bill S3872

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3872
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 1, 2021
                                ___________
 
 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, subdivision 2 and paragraphs (e) and (f) of subdivision 3 as
 amended  by  section 6 of part EE of chapter 56 of the laws of 2020, and
 subdivisions 3, 4, and 5 as amended and subdivision 6 as added by  chap-
 ter 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 five hundred dollars for a first violation, and  a  minimum  of
 one  thousand  dollars,  but  not  to  exceed  two thousand five hundred
 dollars for each subsequent violation, unless  a  different  penalty  is
 otherwise  provided in this article AND DIRECT THE COMMISSIONER OF TAXA-
 TION 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

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

                                                            LBD07991-01-1

 S. 3872                             2

 dealer's registration.] 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  subdivi-
 sion  three  or  four  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  one year. The three points serving as the basis for a suspen-
 sion shall be erased upon the completion of the one year penalty.
   (f) Surcharge.  A two hundred 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
 compliance 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

 S. 3872                             3
 
 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
 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

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 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.
   §  3.  Paragraph 1 of subdivision h of section 1607 of the tax law, as
 amended by section 7 of part EE of chapter 56 of the laws  of  2020,  is
 amended to read as follows:
   1.  A license shall be suspended for a period of one year upon notifi-
 cation 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.