§ 480-A — Retail dealer and vending machine registration

§ 480-a. Retail dealer and vending machine registration. 1. (a) On and\nafter January first, nineteen hundred ninety-one, every retail dealer\nshall publicly display a certificate of registration from the department\nin each place of business in this state through which it sells\ncigarettes or tobacco products at retail. A retail dealer who has no\nregular place of business shall publicly display such certificate on\neach of its carts, stands, trucks or other merchandising devices through\nwhich it sells cigarettes or tobacco products in this state.\n (b) Every person who owns or, if the owner is not the operator, then\nany person who operates one or more vending machines through which\ncigarettes or tobacco products are sold in this state, regardless of\nwhether located on the premises of the vending machine owner or, if the\nowner is not the operator, then the premises of the operator or the\npremises of any other person, must register each such vending machine\nwith the department. On and after January first, nineteen hundred\nninety-one, a vending machine registration certificate, in such form as\nmay be prescribed by the commissioner of taxation and finance, shall be\naffixed to each vending machine through which cigarettes or tobacco\nproducts are sold in this state.\n (c) Registrations of retail dealers and vending machines shall be\nvalid for a calendar year period upon payment of the fee prescribed in\nsubdivision two of this section and must be renewed each year upon\npayment of such fee. A registration shall not be assignable or\ntransferable. In the case of retail dealers a registration certificate\nshall be surrendered to the department immediately upon the retail\ndealer's ceasing to do business as specified in the registration\ncertificate, or in the event that such business never commenced.\n (d) (i) The commissioner shall not register retail dealers or such\nregistration may be cancelled or suspended by the commissioner upon\nnotification that the applicant or retail dealer has been convicted in a\ncriminal proceeding of a violation of subdivision five of section 260.20\nof the penal law or as directed by an enforcement officer pursuant to\narticle thirteen-F of the public health law. The clerk of the court\nshall promptly report all criminal convictions under subdivision five of\nsection 260.20 of the penal law to the commissioner, together with a\ndirection to the commissioner to cancel such registration or to suspend\nit for a specified period of time. Anything to the contrary in any law\nnotwithstanding, retail dealers shall have no right to a hearing under\nthis chapter and shall have no right to commence a court action or\nproceeding or to any other legal recourse against the commissioner with\nrespect to any action taken by the commissioner under this paragraph,\nprovided nothing herein shall be construed to deny retail dealers a\nhearing under article thirteen-F of the public health law or to prohibit\nretail dealers from commencing a court action or proceeding against an\nenforcement officer as defined in section thirteen hundred\nninety-nine-aa of the public health law.\n (ii) Anything to the contrary in any law notwithstanding, the\ncommissioner shall provide upon request to an enforcement officer as\ndefined in section thirteen hundred ninety-nine-aa of the public health\nlaw such registration information as is relevant and necessary for the\nimplementation of article thirteen-F of the public health law.\n (e) The commissioner may refuse to register as a retail dealer or may\nrevoke the registration of a retail dealer where the applicant's or\nretail dealer's place of business is at the same premises as that of a\nretail dealer whose retail dealer registration has been revoked and\nwhere such revocation is still in effect, unless the applicant or retail\ndealer provides the commissioner with adequate documentation\ndemonstrating that such applicant or retail dealer acquired the premises\nor business through an arm's length transaction as defined in this\nparagraph and that the sale or lease was not conducted, in whole or in\npart, for the purpose of permitting the original registrant to avoid the\neffect of the previous revocation for the same premises. For purposes of\nthis paragraph, "arm's length transaction" means a sale of a fee or all\nundivided interests in real property, or lease of any part thereof, or a\nsale of a business, in good faith and for valuable consideration, that\nreflects the fair market value of such real property or lease, or\nbusiness, in the open market, between two informed and willing parties,\nwhere neither is under any compulsion to participate in the transaction,\nunaffected by any unusual conditions indicating a reasonable possibility\nthat the sale or lease was made for the purpose of permitting the\noriginal registrant to avoid the effect of the previous revocation for\nthe same premises. The following sales or leases shall be presumed not\nto be arm's length transactions unless adequate documentation is\nprovided demonstrating that the sale or lease was not conducted, in\nwhole or in part, for the purpose of permitting the original registrant\nto avoid the effect of the previous revocation for the same premises:\n (i) a sale between relatives; or\n (ii) a sale between related companies or partners in a business; or\n (iii) a sale or lease affected by other facts or circumstances that\nwould indicate that the sale or lease is entered into for the primary\npurpose of permitting the original registrant to avoid the effect of the\nprevious revocation for the same premises.\n (f) In addition to the grounds for refusal of a registration specified\nin section eleven hundred thirty-four of this chapter, the commissioner\nmay refuse to register any person as a retail dealer where any tax under\nthis chapter, or a tax or fee administered by the commissioner under any\nother law, has been finally determined to be due from such person, or\nfrom a person required to collect tax with respect to such person or\nanother person, and has not been paid.\n 2. (a) (i) Every retail dealer and every person owning or, if the\nowner is not the operator, then any person operating one or more vending\nmachines through which cigarettes or tobacco products are sold in this\nstate, who is required under section eleven hundred thirty-six of this\nchapter to file a return for the quarterly period ending on the last day\nof August, nineteen hundred ninety or for the quarterly period ending on\nthe last day of August in any year thereafter, must file an application\nfor registration under this section with that quarterly return, in such\nform as shall be prescribed by the commissioner.\n (ii) Each retail dealer must pay an application fee with the quarterly\nreturn of three hundred dollars for each retail place of business in\nthis state through which it sells cigarettes or tobacco products.\n (iii) Every person who owns or, if the owner is not the operator, then\nany person who operates one or more vending machines through which\ncigarettes or tobacco products are sold in this state, regardless of\nwhether located on the premises of the vending machine owner or, if the\nowner is not the operator, then the premises of the operator or the\npremises of any other person, must pay an application fee with the\nquarterly return of one hundred dollars for each vending machine. The\ndepartment will issue a registration certificate, as prescribed by the\ncommissioner, after receipt of a registration application and the\nappropriate registration fee, prior to the next succeeding January\nfirst.\n (b) Every retail dealer and every person who owns or, if the owner is\nnot the operator, then any person who operates one or more vending\nmachines through which cigarettes or tobacco products are sold in this\nstate who commences business after the last day of August, nineteen\nhundred ninety, or who commences selling cigarettes or tobacco products\nat retail through a new or different place of business in this state\nafter such date, or who commences selling cigarettes or tobacco products\nthrough new or different vending machines after such date, must file\nwith the commissioner an application for registration, in a form\nprescribed by him or her, at least thirty days prior to commencing\nbusiness or commencing sales. Each application must be accompanied by an\napplication fee of three hundred dollars for each retail place of\nbusiness and one hundred dollars for each vending machine to be\nregistered. The department, within ten days after receipt of an\napplication for registration under this paragraph and payment of the\nproper fee for application for registration, will issue a registration\ncertificate, as prescribed by the commissioner, for each retail place of\nbusiness or cigarette or tobacco products vending machine registered.\n (c) In addition to the powers granted to the commissioner of taxation\nand finance in this chapter, the commissioner is hereby authorized to\nmake provisions for the joint administration, in whole or in part, of\nthe state and local taxes imposed by article twenty-eight and authorized\nto be imposed by article twenty-nine of this chapter and the\nregistrations and fees for application for registration required by this\nsection, including the joint reporting, assessment, collection and\ndetermination of such taxes and the registration and fees provided for\nin this section, and for that purpose, to prescribe that any of the\ncommissioner's functions under such articles or this section, and any\nreturns, forms, statements, documents or information to be submitted to\nthe commissioner under such articles or this section, any books and\nrecords to be kept for purposes of the taxes imposed or authorized to be\nimposed by such articles or for purposes of this section, any schedules\nof amounts to be collected under such articles or this section, any\nregistration required under such articles or this section, and the\npayment of taxes under such articles, or of fees under this section\nshall be on a joint basis.\n (d) Except as otherwise provided in this section, all the provisions\nof article twenty-eight of this chapter relating to the personal\nliability for the tax, administration, collection and determination of\ntax, and deposit and disposition of revenue, including section eleven\nhundred thirty-eight of this chapter relating to determination of tax\nand section eleven hundred forty-five of this chapter (but only\nparagraphs one and two of subdivision (a) of such section) relating to\npenalties and interest for failure to file a return or pay tax within\nthe time required, shall apply to the applications for registration and\nthe fees for filing such applications required by this section and the\npenalty imposed pursuant to subdivision three of this section, as if\nsuch applications were returns required under section eleven hundred\nthirty-six of this chapter and such filing fees, penalties and interest\nwere taxes required to be paid pursuant to such article twenty-eight, in\nthe same manner and with the same force and effect as if the language of\nsuch provisions of such article twenty-eight had been incorporated in\nfull into this article, except to the extent that any such provision is\neither inconsistent with a provision of this section or is not relevant\nthereto and with such other modifications as may be necessary to adapt\nthe language of such provisions to the provisions of this section.\nProvided, however, that the commissioner of taxation and finance shall\nrefund or credit an application fee paid with respect to the\nregistration of a vending machine or a retail place of business in this\nstate through which cigarettes or tobacco products were to be sold if,\nprior to the beginning of the calendar year with respect to which such\nregistration relates, the certificate of registration described in\nparagraph (a) of this subdivision is returned to the department of\ntaxation and finance, or if such certificate has been destroyed, the\nretail dealer or vending machine operator satisfactorily accounts to the\ncommissioner for the missing certificate, but such vending machine or\nretail place of business may not be used to sell cigarettes or tobacco\nproducts in this state during such calendar year, unless it is\nre-registered. The provisions of section eleven hundred thirty-nine of\nthis chapter shall apply to the refund or credit authorized by the\npreceding sentence and for such purposes, such refund or credit shall be\ndeemed a refund of tax paid in error provided, however, no interest\nshall be allowed or paid on any such refund.\n 3. In addition to any other penalty imposed by this chapter: (a) Any\nretail dealer who violates the provisions of this section, after due\nnotice and an opportunity for a hearing, for a first violation is liable\nfor a civil fine not less than five thousand dollars but not to exceed\ntwenty-five thousand dollars and for a second or subsequent violation\nwithin three years following a prior finding of violation is liable for\na civil fine not less than ten thousand dollars but not to exceed\nthirty-five thousand dollars; or\n (b) Any person who owns or, if the owner is not the operator, then any\nperson who operates one or more vending machines through which\ncigarettes or tobacco products are sold in this state and who violates\nthe provisions of this section, after due notice and an opportunity for\na hearing, for a first violation is liable for a civil fine not less\nthan seven hundred fifty dollars but not to exceed two thousand dollars\nand for a second or subsequent violation within three years following a\nprior finding of violation be liable for a civil fine not less than two\nthousand dollars but not to exceed six thousand dollars.\n (c) If a retail dealer does not possess a valid registration, either\nbecause it failed to obtain a registration or its registration is\nsuspended or revoked and the commissioner or their designee, pursuant to\ntheir authority under this article, attempts to inspect such premises\nfor a violation of this section and such retail dealer, including an\nagent thereof, is found, after notice and opportunity to be heard, to\nhave refused such inspection, such retail dealer shall be subject to a\npenalty of up to four thousand dollars for a first refusal and up to\neight thousand dollars for a second or subsequent refusal within three\nyears of a prior refusal.\n 4. (a) If a retail dealer possesses or sells unstamped or unlawfully\nstamped packages of cigarettes, or if a retail dealer is also licensed\nas an agent pursuant to section four hundred seventy-two and it\npossesses unlawfully stamped packages of cigarettes or sells unstamped\nor unlawfully stamped packages of cigarettes at retail, (i) its\nregistration shall be revoked for a period of one year, or (ii) for a\nsecond such possession or sale within a period of five years by a retail\ndealer or any affiliated person of such retail dealer, the registration\nof such retail dealer and the registration of any retail dealer that is\nan affiliated person of such retail dealer shall be revoked for a period\nof three years, or (iii) for a third such possession or sale within a\nperiod of five years by a retail dealer or any affiliated person of such\nretail dealer, the registration of such retail dealer and the\nregistration of any retail dealer that is an affiliated person of such\nretail dealer shall be revoked for a period of five years. A retail\ndealer registration shall be revoked pursuant to this subdivision\nimmediately upon such dealer's receipt of written notice of revocation\nfrom the commissioner. If unstamped or unlawfully stamped cigarettes are\nfound in a retail dealer's warehouse or a warehouse of any affiliated\nperson of such retail dealer, the revocation of the retail dealer's\nregistration pursuant to this subdivision shall be applicable to each\nretail place of business in this state through which such retail dealer\nand any affiliated person of such retail dealer sells cigarettes.\n (a-1) If a retail dealer, including an agent thereof, refuses to\ncomply with the requirements of subdivision four of section four hundred\nseventy-four of this article its registration may be revoked (i) for a\nperiod of one year, or (ii) for a second such violation within a period\nof five years for up to three years, or (iii) for a third or subsequent\nviolation within a period of seven years for a period up to ten years. A\nretail dealer registration shall be considered to be revoked pursuant to\nthis subdivision immediately upon such dealer's receipt of written\nnotice of revocation from the commissioner.\n (b) A retail dealer who is notified of a revocation of its\nregistration pursuant to this subdivision shall have the right to have\nthe revocation reviewed by the commissioner or his or her designee by\ncontacting the department at a telephone number or an address to be\ndisclosed in the notice of revocation within ten days of such dealer's\nreceipt of such notification. The retail dealer may present written\nevidence or argument in support of its defense to the revocation, or may\nappear at a scheduled conference with the commissioner or his or her\ndesignee to present oral arguments and written and oral evidence in\nsupport of such defense. The commissioner or his or her designee is\nauthorized to delay the effective date of the revocation to enable the\nretail dealer to present further evidence or arguments in connection\nwith the revocation. The commissioner or his or her designee shall\ncancel the revocation of registration if the commissioner or his or her\ndesignee is not satisfied by a preponderance of the evidence that the\nretail dealer violated paragraph (a) or (a-1) of this subdivision, as\nmay be applicable.\n (c) An order of revocation of a retail dealer registration shall not\nbe reviewable by the division of tax appeals, but may be reviewed\npursuant to article seventy-eight of the civil practice law and rules by\na proceeding commenced in the supreme court within four months of the\nrevocation of registration petitioning that the order of revocation be\nenjoined or set aside. Such proceeding shall be instituted in the county\nwhere the commissioner has his or her principal office. Upon the filing\nof such petition the court shall have jurisdiction to set aside such\norder of revocation, in whole or in part, or to dismiss the petition.\nThe jurisdiction of the supreme court shall be exclusive and its order\ndismissing the petition or enjoining or setting aside such order, in\nwhole or in part, shall be final, subject to review by the appellate\ndivision of the supreme court and the court of appeals in the same\nmanner and form and with the same effect as provided by law for appeals\nfrom a judgment in a special proceeding. All such proceedings shall be\nheard and determined by the court and by any appellate court as\nexpeditiously as possible and with lawful precedence over other civil\nmatters. All such proceedings for review shall be heard on the petition,\ntranscript and other papers, and on appeal shall be heard on the record,\nwithout requirement of printing.\n (d) After review of the revocation of registration by the commissioner\nor his or her designee is complete, or the time within which a retail\ndealer may request such review has expired without such a request having\nbeen made, notice of the revocation of a retail dealer registration\npursuant to paragraph (a) of this subdivision shall be given by the\ncommissioner to the head of the division of the lottery for the purpose\nof enforcement of section sixteen hundred seven of this chapter and such\ndivision may suspend or revoke any license issued with respect to a\nlottery agent's specific location pursuant to article thirty-four of\nthis chapter if such lottery agent is a retail dealer of cigarettes\nwhose registration for such location is suspended or revoked pursuant to\nthis section. In addition, notice of such revocation shall also be given\nto the state liquor authority and such revocation shall constitute\ncause, for purposes of section one hundred eighteen of the alcoholic\nbeverage control law, for revocation, cancellation or suspension of any\nlicense or permit issued pursuant to such law.\n 5. Except for subdivision (i) of section eighteen hundred fourteen of\nthis chapter, the criminal penalties set forth in article thirty-seven\nof this chapter shall not apply to a violation of this section.\n 6. (a) No retail dealer who has its retail dealer registration\ncancelled, suspended or revoked pursuant to this section or has been\nforbidden from selling cigarettes or tobacco products pursuant to\nparagraph (j) of subdivision one of section four hundred eighty of this\narticle shall possess cigarettes or tobacco products in any place of\nbusiness, cart, stand, truck or other merchandising device in this state\nbeginning on the tenth day after such cancellation, suspension,\nrevocation, or forbiddance and continuing for the duration of the same;\nprovided however, such retail dealer shall not be prohibited before the\ntenth day after such cancellation, suspension, revocation, or\nforbiddance from selling or transferring its inventory of lawfully\nstamped cigarettes or tobacco products on which the taxes imposed by\nthis article have been assumed or paid to a properly registered retail\ndealer whose registration is not cancelled, suspended, or revoked or who\nhas not been forbidden from selling cigarettes or tobacco products.\n (b) No retail dealer shall possess cigarettes or tobacco products in\nany place of business, cart, stand, truck or other merchandising device\nin this state unless it has obtained a valid retail dealer registration\nfrom the commissioner.\n (c) The possession of cigarettes or tobacco products by an unlicensed\nretail dealer in violation of paragraph (a) or (b) of this subdivision\nshall be subject to the penalties authorized by subdivision three of\nthis section.\n