§ 1399-EE — Hearings; penalties

New York § 1399-EE

• Jurisdiction: New York
• Law PBH: Public Health
• Art. 13-F: Regulation of Tobacco Products, Herbal Cigarettes, Kratom and Smoking Paraphernalia; Distribution to Minors

Text

§ 1399-ee. Hearings; penalties. 1. Hearings with respect to violation\nof this article shall be conducted in the same manner as hearings\nconducted under article thirteen-E of this chapter.\n 2. If the enforcement officer determines after a hearing that a\nviolation of this article has occurred, he or she shall impose a civil\npenalty of a minimum of three hundred dollars, but not to exceed one\nthousand five hundred dollars for a first violation, and a minimum of\none thousand dollars, but not to exceed two thousand five hundred\ndollars for each subsequent violation, unless a different penalty is\notherwise provided in this article. The enforcement officer shall advise\nthe retail dealer that upon the accumulation of three or more points\npursuant to this section the department of taxation and finance shall\nsuspend the dealer's registration. If the enforcement officer determines\nafter a hearing that a retail dealer was selling tobacco products while\ntheir registration was suspended or permanently revoked pursuant to\nsubdivision three or four of this section, he or she shall impose a\ncivil penalty of twenty-five hundred dollars.\n 3. (a) Imposition of points. If the enforcement officer determines,\nafter a hearing, that the retail dealer violated subdivision one of\nsection thirteen hundred ninety-nine-cc of this article with respect to\na prohibited sale to a minor, he or she shall, in addition to imposing\nany other penalty required or permitted pursuant to this section, assign\ntwo points to the retail dealer's record where the individual who\ncommitted the violation did not hold a certificate of completion from a\nstate certified tobacco sales training program and one point where the\nretail dealer demonstrates that the person who committed the violation\nheld a certificate of completion from a state certified tobacco sales\ntraining program.\n (b) Revocation. If the enforcement officer determines, after a\nhearing, that a retail dealer has violated this article four times\nwithin a three year time frame he or she shall, in addition to imposing\nany other penalty required or permitted by this section, direct the\ncommissioner of taxation and finance to revoke the dealer's registration\nfor one year.\n (c) Duration of points. Points assigned to a retail dealer's record\nshall be assessed for a period of thirty-six months beginning on the\nfirst day of the month following the assignment of points.\n (d) Reinspection. Any retail dealer who is assigned points pursuant to\nparagraph (a) of this subdivision shall be reinspected at least two\ntimes a year by the enforcement officer until points assessed are\nremoved from the retail dealer's record.\n (e) Suspension. If the department determines that a retail dealer has\naccumulated three points or more, the department shall direct the\ncommissioner of taxation and finance to suspend such dealer's\nregistration for one year. The three points serving as the basis for a\nsuspension shall be erased upon the completion of the one year penalty.\n (f) Surcharge. A two hundred fifty dollar surcharge to be assessed for\nevery violation will be made available to enforcement officers and shall\nbe used solely for compliance checks to be conducted to determine\ncompliance with this section.\n 4. (a) If the enforcement officer determines, after a hearing, that a\nretail dealer has violated this article while their registration was\nsuspended pursuant to subdivision three of this section, he or she\nshall, in addition to imposing any other penalty required or permitted\nby this section, direct the commissioner of taxation and finance to\npermanently revoke the dealer's registration and not permit the dealer\nto obtain a new registration.\n (b) If the enforcement officer determines, after a hearing, that a\nvending machine operator has violated this article three times within a\ntwo year period, or four or more times cumulatively he or she shall, in\naddition to imposing any other penalty required or permitted by this\nsection, direct the commissioner of taxation and finance to suspend the\nvendor's registration for one year and not permit the vendor to obtain a\nnew registration for such period.\n 5. The department shall publish a notification of the name and address\nof any retailer violating the provisions of this section and indicate\nthe number of times the dealer has violated the provisions of this\nsection. The notification shall be published in a newspaper of general\ncirculation in the locality in which the retailer is located.\n 6. (a) In any proceeding pursuant to subdivision three of this section\nto assign points to a retail dealer's record, the retail dealer shall be\nassigned one point instead of two points where the retail dealer\ndemonstrates that the person who committed the violation of section\nthirteen hundred ninety-nine-cc of this article held a valid certificate\nof completion from a state certified tobacco sales training program.\n (b) A state certified tobacco sales training program shall include\ninstruction in the following elements:\n (1) the health effects of tobacco use, especially at a young age;\n (2) the legal purchase age and the additional requirements of section\nthirteen hundred ninety-nine-cc of this article;\n (3) legal forms of identification and the key features thereof;\n (4) reliance upon legal forms of identification and the right to\nrefuse sales when acting in good faith;\n (5) means of identifying fraudulent identification of attempted\nunderage purchasers;\n (6) techniques used to refuse a sale;\n (7) the penalties arising out of unlawful sales to underage\nindividuals; and\n (8) the significant disciplinary action or loss of employment that may\nbe imposed by the retail dealer for a violation of the law or a\ndeviation from the policies of the retail dealer in respect to\ncompliance with such law.\n (c) A tobacco sales training program may be given and administered by\na retail dealer duly registered under section four hundred eighty-a of\nthe tax law which operates five or more registered locations, by a trade\nassociation whose members are registered as retail dealers, by national\nand regional franchisors who have granted at least five franchises in\nthe state to persons who are registered as such retail dealers by a\ncooperative corporation with five or more members who are registered as\nretail dealers and are operating in this state, and by a wholesaler\nsupplying fifty or more retail dealers. A person or entity administering\nsuch training program shall issue certificates of completion to persons\nsuccessfully completing such a training program. Such certificates shall\nbe prima facie evidence of the completion of such a training program by\nthe person named therein.\n (d) A certificate of completion may be issued for a period of three\nyears, however such certificate shall be invalidated by a change in\nemployment.\n (e) Entities authorized pursuant to paragraph (c) of this subdivision\nto give and administer a tobacco sales training program may submit a\nproposed curriculum, a facsimile of any training aids and materials, and\na list of training locations to the department for review. Training aids\nmay include the use of video, computer based instruction, printed\nmaterials and other formats deemed acceptable to the department. The\ndepartment shall certify programs which provide instruction in the\nelements set forth in paragraph (b) of this subdivision in a clear and\nmeaningful fashion. Programs approved by the department shall be\ncertified for a period of three years at which time an entity may\nreapply for certification. A non-refundable fee in the amount of three\nhundred dollars shall be paid to the department with each application.\n