§ 484 — Unlawful acts; violations of article

New York § 484

• Jurisdiction: New York
• Law TAX: Tax
• Art. 20-A: Cigarette Marketing Standards

Text

§ 484. Unlawful acts; violations of article. (a) Notwithstanding any\nother provision of law, it shall be unlawful and a violation of this\narticle:\n 1. For any agent, wholesale dealer or retail dealer, with intent to\ninjure competitors or destroy or substantially lessen competition, or\nwith intent to avoid the collection or paying over of such taxes as may\nbe required by law, to advertise, offer to sell, or sell cigarettes at\nless than cost of such agent wholesale dealer or retail dealer, as the\ncase may be.\n 2. For any wholesale dealer:\n (A) to induce or attempt to induce or to procure or attempt to procure\nthe purchase of cigarettes at a price less than the cost of the agent\nwith respect to sales to wholesale dealers; or\n (B) to induce or attempt to induce or to procure or attempt to procure\nany rebate or concession of any kind or nature whatsoever in connection\nwith the purchase of cigarettes.\n 3. For any chain store:\n (A) to induce or attempt to induce or to procure or attempt to procure\nthe purchase of cigarettes at a price less than the cost of the agent\nwith respect to sales to chain stores; or\n (B) to induce or attempt to induce or to procure or attempt to procure\nany rebate or concession of any kind or nature whatsoever in connection\nwith the purchase of cigarettes.\n 4. For any retail dealer:\n (A) to induce or attempt to induce or to procure or attempt to procure\nthe purchase of cigarettes at a price less than the cost of the agent\nfor sales to retail dealers, if purchased from an agent, or at a price\nless than the cost of the wholesale dealer; or\n (B) to induce or attempt to induce or to procure or attempt to procure\nany rebate or concession of any kind or nature whatsoever in connection\nwith the purchase of cigarettes.\n 5. (A) Upon a first violation of any of the provisions of this\narticle, after due notice and opportunity for a hearing, the\ncommissioner may suspend the license of any agent or wholesale dealer\nfor a period of not more than thirty days or impose a civil fine not to\nexceed twenty thousand dollars or both such suspension and fine.\n (B) Upon a second or subsequent violation committed within three years\nfollowing a prior finding of violation, after due notice and opportunity\nfor a hearing, the commissioner shall revoke the license of any agent or\nwholesale dealer unless (i) the penalty imposed for the first violation\nwas a fine only; or (ii) the commissioner determines, on a showing by\nthe agent or wholesale dealer, that the second or subsequent violation\nis due to reasonable cause or that such agent or wholesale dealer acted\nin good faith, in which case the commissioner may suspend such license\nfor a period of not more than sixty days or impose a civil fine not to\nexceed fifty thousand dollars or both such suspension and fine.\n (C) In determining whether to suspend or revoke or in assessing the\namount of any fine under this paragraph the commissioner shall give due\nconsideration to the gravity of the violation, the size of the agent's\nor wholesale dealer's business, the amount of the sale in violation of\nthis article below the minimum markup and the history of previous\nviolations. The penalties provided for in this paragraph shall be\ndetermined, assessed, collected and paid in the manner provided in\nsection four hundred seventy-eight of this chapter, as if such penalties\nwere taxes imposed pursuant to this article.\n 6. Evidence of advertisement, offering to sell or sale of cigarettes\nby any agent, wholesale dealer, chain store or retail dealer at less\nthan cost, or evidence of any offer of a rebate in price, or giving of a\nrebate in price, or an offer of a concession, or the giving of a\nconcession of any kind or nature whatsoever in connection with the sale\nof cigarettes, or the inducing or attempt to induce or to the procuring\nor the attempt to procure the purchase of cigarettes at a price less\nthan cost of the agent, wholesale dealer, chain store or the retail\ndealer, shall be prima facie evidence of intent to injure competitors\nand to destroy or substantially lessen competition, or of intent to\navoid the collection or paying over of such taxes as may be required by\nlaw.\n (b) 1. An action may be maintained in the supreme court to prevent,\nrestrain or enjoin a violation, or threatened violation, of any of the\nprovisions of this article. Such an action may be instituted by any\nperson injured by any violation or threatened violation of this article,\nor by the tax commission. If in such action a violation or threatened\nviolation of this article shall be established, the court shall enjoin\nand restrain, or otherwise prohibit, such violation or threatened\nviolation. In such action it shall not be necessary that actual damages\nto the plaintiff be alleged or proved, but where alleged and proved, the\nplaintiff in said action, in addition to such injunctive relief and\ncosts of suit, including reasonable attorney's fees, shall be entitled\nto recover from the defendant the actual damages sustained by such\nplaintiff.\n 2. In the event that no injunctive relief is sought or required, any\nperson injured by a violation of this article may maintain an action for\ndamages and costs of suit in the supreme court as provided for in the\ncivil practice law and rules.\n (c) Any contract, expressed or implied, made by any person in\nviolation of any of the provisions of this article is declared to be an\nillegal and void contract, and no recovery thereon shall be had.\n (d) The provisions of this article shall not be applicable to any sale\nas to which the tax imposed by section four hundred seventy-one of this\nchapter is not applicable or to a sale to the department of corrections\nand community supervision of this state for sale to or use by\nincarcerated individuals in institutions under the jurisdiction of such\ndepartment.\n