N.Y. Public Health Law § 1399-ee: Hearings; penalties

§ 1399-ee. Hearings; penalties. 1. Hearings with respect to violation

of this article shall be conducted in the same manner as hearings

conducted under article thirteen-E of this chapter.

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. 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 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

subdivision 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

hearing, 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

registration for one year. The three points serving as the basis for a

suspension 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. 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 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 retail dealer

demonstrates that the person who committed the violation of section

thirteen hundred ninety-nine-cc of this article held a valid certificate

of completion from a state certified tobacco sales training program.

(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

underage purchasers;

(6) techniques used to refuse a sale;

(7) the penalties arising out of unlawful sales to underage

individuals; 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

deviation 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

materials and other formats deemed acceptable to the department. The

department 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 period of three years at which time an entity may

reapply for certification. A non-refundable fee in the amount of three

hundred dollars shall be paid to the department with each application.