§ 283-B — Licensing of terminal operators

§ 283-b. Licensing of terminal operators. 1. The department of\ntaxation and finance, upon the application of a person who operates a\nfacility where motor fuel is deposited, shall license such person as a\nterminal operator under this article except as otherwise provided in\nthis section. The application shall be in a form and contain such\ninformation as the department of taxation and finance shall prescribe.\nNo person, unless so licensed, shall operate a terminal, except that a\nperson may operate a terminal without a license if all of the motor fuel\nstored in such facility is solely for such person's own use and\nconsumption.\n 2. Where a person files an application for a license under this\nsection and in considering such application the commissioner ascertains\nthat (a) any tax imposed under this chapter or any related statute as\ndefined in section eighteen hundred of this chapter has been finally\ndetermined to be due from such applicant or from any officer, director\nor partner of such applicant, shareholder directly or indirectly owning\nmore than ten percent of the number of shares of stock of such applicant\n(where such applicant is a corporation) entitling the holder thereof to\nvote for the election of directors or trustees, or any shareholder or\nemployee of such applicant under a duty to act for such applicant in\ncomplying with any requirement of this article, and has not been paid in\nfull, (b) a liability for the penalty provided for under subdivision two\nof section two hundred eighty-nine-b of this article has been finally\ndetermined to be due from an officer, director, shareholder directly or\nindirectly owning more than ten percent of the number of shares of stock\nof such applicant (where such applicant is a corporation) entitling the\nholder thereof to vote for the election of directors or trustees,\nemployee or partner of such applicant or a shareholder of such applicant\nunder a duty to act for such applicant in complying with any requirement\nof this article, and has not been paid in full, (c) such applicant has\nbeen convicted of a crime provided for in this chapter or has been\nconvicted under the tax laws or penal laws of any other state, or a\npolitical subdivision of this state or such other state, or of the\nUnited States of a criminal offense which, if committed and prosecuted\nin this state, would constitute a similar crime under this chapter,\nwithin the preceding five years, (d) an officer, director or partner of\nsuch applicant, a shareholder directly or indirectly owning more than\nten percent of the number of shares of stock of such applicant (where\nsuch applicant is a corporation) entitling the holder thereof to vote\nfor the election of directors or trustees, or an employee or shareholder\nof such applicant who, as such employee or shareholder, is under a duty\nto act for such applicant in complying with any requirement of this\narticle, has been convicted of a crime provided for in this chapter or\nhas been convicted under the tax laws or penal laws of any other state,\nor a political subdivision of this state or such other state, or of the\nUnited States of a criminal offense which, if committed and prosecuted\nin this state, would constitute a similar crime under this chapter,\nwithin the preceding five years, (e) such applicant, or an officer,\ndirector or partner of such applicant, shareholder directly or\nindirectly owning more than ten percent of the number of shares of stock\nof such applicant (where such applicant is a corporation) entitling the\nholder thereof to vote for the election of directors or trustees, or\nemployee or shareholder of such applicant under a duty to act for such\napplicant in complying with any requirement of this article, who was an\nofficer, director or partner of another person, or who directly or\nindirectly owned more than ten percent of the number of shares of stock\nof another person (where such other person is a corporation) entitling\nthe holder thereof to vote for the election of directors or trustees, or\nwho was an employee or shareholder of another person under a duty to act\nfor such other person in complying with any requirement of this article\nat the time any tax imposed under this chapter or any related statute as\ndefined in section eighteen hundred of this chapter was finally\ndetermined to be due with respect from such other person and where such\ntax has not been paid in full, or at the time such other person was\nconvicted of a crime provided for in this chapter or has been convicted\nunder the tax laws or penal laws of any other state, or a political\nsubdivision of this state or such other state, or of the United States\nof a criminal offense which, if committed and prosecuted in this state,\nwould constitute a similar crime under this chapter, within the\npreceding five years, or at the time the registration of such other\nperson was cancelled or suspended pursuant to subdivision four of this\nsection within the preceding five years, or at the time such other\nperson committed any of the acts or omissions which are, or was\nconvicted as, specified in subdivision four of this section within the\npreceding five years, provided, however, where an applicant or such\nofficer, director, partner, shareholder or employee of such applicant\nwas only an employee of another person, the applicable examination of\ntax payment history of such other person shall be limited to the taxes\nimposed by this article or by or pursuant to article twenty-eight or\ntwenty-nine of this chapter with respect to motor fuel and the\napplicable examination of prior criminal convictions shall be limited to\nthose which relate to motor fuel, (f) the license of such applicant or\nof an officer, director or partner of such applicant, shareholder\ndirectly or indirectly owning more than ten percent of the number of\nshares of stock of such applicant (where such applicant is a\ncorporation) entitling the holder thereof to vote for the election of\ndirectors or trustees, or employee or shareholder of such applicant\nunder a duty to act for such applicant in complying with any requirement\nof this article has been cancelled or suspended pursuant to subdivision\nfour of this section within the preceding five years, or (g) the\napplicant, an officer, director or partner of the applicant, a\nshareholder directly or indirectly owning more than ten percent of the\nnumber of shares of stock of such applicant (where such applicant is a\ncorporation) entitling the holder thereof to vote for the election of\ndirectors or trustees, or an employee or shareholder of such applicant\nunder a duty to act for such applicant in complying with any requirement\nof this article, has committed any of the acts or omissions which are,\nor was convicted as, specified in subdivision four of this section\nwithin the preceding five years, the commissioner may refuse to grant\nsuch applicant a license.\n 3. The tax commission may require a terminal operator to file with the\ndepartment of taxation and finance a bond issued by a surety company\napproved by the superintendent of financial services as to solvency and\nresponsibility and authorized to transact business in this state or\nother security acceptable to the tax commission, in such amount as the\ntax commission may fix, in an amount determined in accordance with rules\nand regulations prescribed by it, to secure the performance by such\nterminal operator of the duties and responsibilities required (i)\npursuant to this article and (ii) pursuant to articles twenty-eight and\ntwenty-nine of this chapter with respect to motor fuel. The tax\ncommission may require that such a bond or other security be filed\nbefore a terminal operator is licensed, and the amount thereof may be\nincreased at any time when in its judgment the same is necessary. If\nsecurities are deposited as security under this subdivision, such\nsecurities shall be kept in the joint custody of the comptroller and the\ncommissioner of taxation and finance and may be sold by the tax\ncommission if it becomes necessary so to do in order to recover against\nsuch terminal operator but no such sale shall be had until after such\nterminal operator shall have had opportunity to litigate the validity of\nthe liability if it elects so to do. Upon any such sale the surplus, if\nany, above the sums due shall be returned to such terminal operator. The\ndepartment, when authorized by the terminal operator, shall furnish\ninformation regarding the terminal operator's license and any other\ninformation which the terminal operator authorizes it to disclose.\n 4. The license of any terminal operator may be cancelled or suspended\nby the commissioner where a licensee, or an officer, director,\nshareholder, employee or partner of the registrant who as such officer,\ndirector, shareholder, employee or partner is under a duty to act for\nsuch licensee or any shareholder directly or indirectly owning more than\nten percent of the number of shares of stock of the licensee (where such\nlicensee is a corporation) entitling the holder thereof to vote for the\nelection of directors or trustees of such licensee, fails to file a bond\nor other security when required or when the amount thereof is increased,\nor fails to comply with any of the provisions of this article or article\ntwenty-eight of this chapter with respect to motor fuel or any rule or\nregulation with respect to motor fuel adopted pursuant to such articles\nby the department of taxation and finance or by the commissioner or,\nknowingly aids and abets another person in violating any of the\nprovisions of such articles or of any such rule or regulation with\nrespect to motor fuel, or transfers its license as a terminal operator.\nA license may also be cancelled or suspended if the commissioner\ndetermines that a licensee or an officer, director, shareholder,\nemployee or partner of the licensee who as such officer, director,\nshareholder, employee or partner is under a duty to act for such\nlicensee or any shareholder directly or indirectly owning more than ten\npercent of the number of shares of stock of the licensee (where such\nlicensee is a corporation) entitling the holder thereof to vote for the\nelection of directors or trustees of such licensee:\n (i) commits fraud or deceit in his operations as a terminal operator\nor has committed fraud or deceit in procuring his license;\n (ii) has been convicted in a court of competent jurisdiction, either\nwithin or without the state, of a felony, within the meaning of\nsubdivision eight of section two hundred eighty-three of this article,\nbearing on such terminal operator's duties and obligations under this\nchapter;\n (iii) has knowingly aided and abetted a person who is not registered\nas a distributor in the importation, production, refining, manufacture\nor compounding of motor fuel; or\n (iv) has knowingly aided and abetted the distribution of motor fuel\nwhich he has knowledge of as being imported, caused to be imported,\nproduced, refined, manufactured or compounded by a distributor who is\nnot registered by the department of taxation and finance.\n A license may also be cancelled or suspended if the commissioner\ndetermines that a licensee or an officer, director, shareholder,\nemployee or partner of the licensee who as such officer, director,\nshareholder, employee or partner is under a duty to act for such\nlicensee or any shareholder directly or indirectly owning more than ten\npercent of the number of shares of stock of the licensee (where such\nlicensee is a corporation) entitling the holder thereof to vote for the\nelection of directors or trustees of such licensee, was an officer,\ndirector, shareholder, employee or partner of another person who as such\nofficer, director, shareholder, employee or partner was under a duty to\nact for such other person or was a shareholder directly or indirectly\nowning more than ten percent of the number of shares of stock of such\nother person (where such other person is a corporation) entitling the\nholder thereof to vote for the election of directors or trustees of such\nother person at the time such other person committed any of the acts or\nomissions which are, or was convicted as, specified in this subdivision\nwithin the preceding five years.\n 5. A license shall not be cancelled or suspended nor shall an\napplication for a license be refused unless the licensee or applicant\nfor a license has had an opportunity for a hearing, provided, however,\nthat an application for a license may be denied without a prior hearing.\nProvided, further, a license may be cancelled or suspended without a\nprior hearing, for failure to file a return or report within ten days of\nthe date prescribed for filing under this article or nonpayment of any\nsums due pursuant to this article or article twenty-eight or twenty-nine\nof this chapter with respect to motor fuel if the licensee shall have\nfailed to file such return or report or pay taxes within ten days after\nthe date the demand therefor is sent by registered or certified mail to\nthe address of the terminal operator given in his application for a\nlicense, or an address substituted therefor as in this subdivision. A\nlicense may be cancelled or suspended prior to a hearing for the failure\nto continue to maintain in full force and effect at all times the\nrequired bond or other security filed with the tax commission. Provided,\nhowever, if a surety bond is cancelled prior to expiration, the tax\ncommission, after considering all the relevant circumstances, may make\nsuch other arrangements and require the filing of such other bond or\nother security as it deems appropriate. Provided, further, a license may\nbe cancelled or suspended prior to a hearing for the transfer of such\nlicense. A terminal operator shall immediately inform the department, in\nwriting, of any change in its address and, if the terminal operator is a\ncorporation or partnership, the terminal operator shall immediately\ninform the department, in writing, of any change in its officers,\ndirectors or partners or their residence addresses as shown in its\napplication for a license.\n 6. The provisions of subdivisions six, eight, nine and ten of section\ntwo hundred eighty-three of this article shall apply to the provisions\nof this section in the same manner and with the same force and effect as\nif the language of these subdivisions had been incorporated in full into\nthis section and had expressly referred to the terminal operator's\nlicense under this section, except to the extent that any such provision\nis either inconsistent with a provision of this section or is not\nrelevant to this section.\n