Bill Text: NY A00459 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to the licensing of wholesale cigarette dealers and the tax on cigarettes.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-08 - referred to cities [A00459 Detail]
Download: New_York-2013-A00459-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
459
2013-2014 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2013
___________
Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
tee on Cities
AN ACT to amend the New York city charter and the administrative code of
the city of New York, in relation to the licensing of wholesale ciga-
rette dealers and the tax on cigarettes; and to repeal subdivisions d
and f of section 11-1303 of the administrative code of the city of New
York relating to the suspension or revocation of wholesale cigarette
licenses and sanctions on retail dealers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision a of section 168 of the New York city charter,
2 as amended by local law number 59 of the city of New York for the year
3 2007, is amended to read as follows:
4 a. An independent tax appeals tribunal is hereby established. Such
5 tribunal shall be within the office of administrative tax appeals estab-
6 lished under section one hundred fifty of this charter. The tribunal
7 shall have jurisdiction to hear and determine cases initiated by the
8 filing of petitions protesting notices issued by the commissioner of
9 finance[, which] THAT give a person the right to a hearing[,] including,
10 but not limited to, any notice of determination of tax due, of a tax
11 deficiency, of a denial of a refund or credit application [or of the
12 refusal to grant, the suspension or the revocation of a license issued
13 pursuant to], AND ANY NOTICE AUTHORIZED UNDER chapter thirteen of title
14 eleven of the administrative code, which notices relate to WHOLESALE
15 CIGARETTE LICENSES OR SANCTIONS ISSUED OR IMPOSED BY THE CITY OR
16 nonproperty taxes, excise taxes and annual vault charges imposed by the
17 city, except those taxes and charges administered by the State of New
18 York on behalf of the City of New York. For purposes of the preceding
19 sentence, if the commissioner of finance fails to act with respect to a
20 refund application before the expiration of the time period after which
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03123-01-3
A. 459 2
1 the taxpayer may file a petition for refund with the tribunal pursuant
2 to subdivision (c) of section 11-529 or subdivision three of section
3 11-680 of the administrative code, such failure shall be deemed to be a
4 notice of denial of a refund issued by the commissioner of finance
5 pursuant to such subdivision. The tribunal shall review petitions and
6 other documents submitted to it, hold hearings, and render decisions as
7 provided in this chapter. In rendering its decisions on claims asserted
8 by taxpayers or the commissioner of finance, the tribunal shall have the
9 same power and authority as the commissioner of finance to impose, modi-
10 fy or waive any taxes within its jurisdiction, interest thereon, and any
11 applicable civil penalties, AND TO MAKE DECISIONS WITH RESPECT TO WHOLE-
12 SALE CIGARETTE LICENSES OR SANCTIONS UNDER CHAPTER THIRTEEN OF TITLE
13 ELEVEN OF THE ADMINISTRATIVE CODE. In appeals in which the rules of the
14 commissioner of finance are at issue, the tribunal shall have the power
15 and authority to rule on the legality of such rules.
16 S 2. Subdivision c of section 169 of the New York city charter, as
17 amended by chapter 808 of the laws of 1992, is amended to read as
18 follows:
19 c. [A procedure] PROCEDURES for promptly hearing and determining: (1)
20 any matter concerning jeopardy assessments or predecision warrants based
21 thereon, AND (2) WITH RESPECT TO WHOLESALE CIGARETTE LICENSES AND SANC-
22 TIONS, ANY MATTER CONCERNING SANCTION ACTIONS, EXCEPT FOR MATTERS
23 INVOLVING SOLELY THE IMPOSITION OF CIVIL PENALTIES;
24 S 3. Subdivision a of section 170 of the New York city charter, as
25 amended by chapter 808 of the laws of 1992, is amended to read as
26 follows:
27 a. Any taxpayer who has been issued a notice referred to in subdivi-
28 sion a of section one hundred sixty-eight of the charter by the commis-
29 sioner of finance may petition the tribunal for administrative review.
30 To commence a proceeding, such a taxpayer must, within ninety days after
31 being issued the notice at issue by the commissioner of finance or, if
32 the commissioner of finance has established a conciliation procedure
33 pursuant to section 11-124 of the administrative code and the taxpayer
34 has requested a conciliation conference in accordance therewith, within
35 ninety days from the mailing of the conciliation decision or the date of
36 the commissioner's confirmation of the discontinuance of the concil-
37 iation proceeding, both (1) serve a petition upon the commissioner of
38 finance and (2) file the petition with the tribunal. Notwithstanding
39 the time specified in the preceding sentence for filing a petition, A
40 PETITION TO SEEK REVIEW OF A NOTICE IN ANY MATTER CONCERNING WHOLESALE
41 CIGARETTE LICENSES OR SANCTIONS PURSUANT TO CHAPTER THIRTEEN OF TITLE
42 ELEVEN OF THE ADMINISTRATIVE CODE MUST BE SERVED AND FILED WITHIN THIRTY
43 DAYS FROM THE DATE OF SUCH NOTICE, AND a petition for refund filed
44 pursuant to subdivision (c) of section 11-529 of the administrative code
45 or subdivision three of section 11-680 of such code [may] MUST be SERVED
46 AND filed within the time specified in such subdivision (c) or such
47 subdivision three. The tribunal shall not extend the time limitations
48 for commencing a proceeding for any petitioner failing to comply with
49 such time limitations. The petition shall contain a plain and concise
50 statement of the facts and law on which the proceeding is based.
51 S 4. Subdivision b of section 171 of the New York city charter, as
52 amended by chapter 808 of the laws of 1992, is amended to read as
53 follows:
54 b. Except as otherwise provided in subdivisions d and e of section
55 one hundred sixty-nine of the charter, each decision of the tribunal,
56 shall finally and irrevocably decide all the issues raised in the
A. 459 3
1 proceedings before it, unless the petitioner who commenced the proceed-
2 ing seeks judicial review of any such decision in the manner provided in
3 article seventy-eight of the civil practice law and rules [within four
4 months after the giving of the notice of such decision]. JUDICIAL
5 REVIEW OF DECISIONS, OTHER THAN THOSE INVOLVING WHOLESALE CIGARETTE
6 LICENSES OR SANCTIONS UNDER CHAPTER THIRTEEN OF TITLE ELEVEN OF THE
7 ADMINISTRATIVE CODE, SHALL BE SOUGHT WITHIN FOUR MONTHS AFTER THE GIVING
8 OF THE NOTICE OF SUCH DECISION. NOTWITHSTANDING ANY LAW TO THE CONTRA-
9 RY, JUDICIAL REVIEW OF ANY DECISION INVOLVING WHOLESALE CIGARETTE
10 LICENSES OR SANCTIONS UNDER CHAPTER THIRTEEN OF TITLE ELEVEN OF THE
11 ADMINISTRATIVE CODE SHALL BE SOUGHT WITHIN THIRTY DAYS AFTER THE GIVING
12 OF THE NOTICE OF SUCH DECISION.
13 S 5. Subdivision a of section 11-124 of the administrative code of the
14 city of New York, as added by chapter 808 of the laws of 1992, is
15 amended to read as follows:
16 a. The commissioner of finance may establish a procedure for providing
17 conciliation conferences for purposes of settling contested determi-
18 nations of taxes or charges or denials of refunds or credits with
19 respect to taxes or charges imposed under chapter five, six, seven,
20 eight, nine, eleven, twelve, thirteen, fourteen, [fifteen,] twenty-one,
21 twenty-two, twenty-four, twenty-five or twenty-seven of this title[, or
22 for the purpose of settling disputes arising from the notification of
23 the refusal to grant, the suspension or the revocation of a license
24 issued pursuant to chapter thirteen of this title]. If such a procedure
25 is established, a conciliation conference shall be provided at the
26 option of any taxpayer or any other person subject to the provisions of
27 any of such chapters. For purposes of this subdivision, if the commis-
28 sioner of finance fails to act with respect to a refund application
29 before the expiration of the time period after which the taxpayer may
30 file a petition for refund with the tax appeals tribunal established by
31 section one hundred sixty-eight of the charter pursuant to subdivision
32 (c) of section 11-529 or subdivision three of section 11-680 of the
33 code, such failure shall be deemed to be the denial of a refund.
34 S 6. Section 11-1301 of the administrative code of the city of New
35 York is amended by adding three new subdivisions 14, 15 and 16 to read
36 as follows:
37 14. "CONTROLLING PERSON." ANY PERSON WHO IS:
38 (A) AN OFFICER, DIRECTOR, PARTNER, OR IN THE CASE OF A LIMITED LIABIL-
39 ITY COMPANY, A MEMBER OR A PERSON HAVING AUTHORITY, WITH RESPECT TO SUCH
40 LIMITED LIABILITY COMPANY, ANALOGOUS TO THE AUTHORITY OF AN OFFICER OR
41 DIRECTOR WITH RESPECT TO A CORPORATION, OF A WHOLESALE DEALER OR OF AN
42 APPLICANT FOR A WHOLESALE CIGARETTE LICENSE (WHETHER OR NOT A WHOLESALE
43 DEALER);
44 (B) A SHAREHOLDER, DIRECTLY OR INDIRECTLY OWNING MORE THAN TEN PERCENT
45 OF THE NUMBER OF SHARES OF STOCK OF SUCH WHOLESALE DEALER OR APPLICANT
46 ENTITLING THE HOLDER THEREOF TO VOTE FOR THE ELECTION OF DIRECTORS OR
47 TRUSTEES. FOR PURPOSES OF THIS PARAGRAPH, WHERE REFERENCE IS MADE TO
48 DIRECT OR INDIRECT OWNERSHIP OF MORE THAN TEN PERCENT OF THE NUMBER OF
49 SHARES OF STOCK OF THE APPLICANT OR ANOTHER PERSON ENTITLING THE HOLDER
50 THEREOF TO VOTE FOR THE ELECTION OF DIRECTORS OR TRUSTEES, IN THE CASE
51 OF AN APPLICANT OR ANOTHER PERSON WHICH AT THE RELEVANT TIME HAS FOUR OR
52 FEWER SHAREHOLDERS HOLDING SHARES ENTITLING THE HOLDERS THEREOF TO VOTE
53 FOR THE ELECTION OF DIRECTORS OR TRUSTEES, TWENTY-FIVE PERCENT OR MORE
54 SHALL BE SUBSTITUTED AS THE APPLICABLE PERCENTAGE IN SUCH REFERENCES TO
55 OWNERSHIP, DIRECTLY OR INDIRECTLY, OF VOTING STOCK; OR
A. 459 4
1 (C) ANY PERSON WHO IS A MEMBER OF THE FAMILY, AS DEFINED IN PARAGRAPH
2 FOUR OF SUBSECTION (C) OF SECTION TWO HUNDRED SIXTY-SEVEN OF THE INTER-
3 NAL REVENUE CODE, OF A WHOLESALE DEALER, AN APPLICANT FOR A WHOLESALE
4 CIGARETTE LICENSE, OR A PERSON DESCRIBED IN PARAGRAPH (A) OR (B) OF THIS
5 SUBDIVISION.
6 15. "RELATED STATUTE." THE TERM "RELATED STATUTE" SHALL HAVE THE SAME
7 MEANING AS SET FORTH IN SUBDIVISION (D) OF SECTION EIGHTEEN HUNDRED OF
8 THE TAX LAW.
9 16. "ASSOCIATE." ANY PERSON, OTHER THAN A CONTROLLING PERSON, WHO IS
10 AN EMPLOYEE, SHAREHOLDER OR OTHER PERSON ACTING ON BEHALF OF OR AS A
11 REPRESENTATIVE OF A WHOLESALE DEALER, AN APPLICANT FOR A WHOLESALE CIGA-
12 RETTE LICENSE, OR A CONTROLLING PERSON.
13 S 7. Subdivisions d and f of section 11-1303 of the administrative
14 code of the city of New York are REPEALED.
15 S 8. Paragraph 1 of subdivision b of section 11-1303 of the adminis-
16 trative code of the city of New York, as amended by local law number 2
17 of the city of New York for the year 2000, is amended to read as
18 follows:
19 1. Wholesale cigarette license. In order to obtain a license to engage
20 in business as a wholesale dealer, a person shall file AN application
21 with the commissioner of finance for one license for each place of busi-
22 ness that he or she desires to have for the sale of cigarettes in the
23 city. Every application for a wholesale cigarette license shall be made
24 upon a form prescribed and prepared by the commissioner of finance and
25 shall set forth such information as the commissioner shall require. [The
26 commissioner of finance may, for cause, refuse to issue a wholesale
27 cigarette license.] Upon approval of the application, the commissioner
28 of finance shall grant and issue to the applicant a wholesale cigarette
29 license for each place of business [within the city] set forth in the
30 application. Cigarette licenses shall not be assignable and shall be
31 valid only for the persons in whose names such licenses have been issued
32 and for the transaction of business in the places designated therein and
33 shall at all times be conspicuously displayed at the places for which
34 issued.
35 S 9. Section 11-1303 of the administrative code of the city of New
36 York is amended by adding seven new subdivisions h, i, j, k, l, m and n
37 to read as follows:
38 H. REFUSAL TO ISSUE A NEW LICENSE. THE COMMISSIONER OF FINANCE MAY
39 REFUSE TO ISSUE A WHOLESALE CIGARETTE LICENSE UPON DETERMINING THAT, AT
40 THE TIME OF THE WHOLESALE LICENSE APPLICATION, THERE IS ONE OR MORE
41 GROUNDS PURSUANT TO SUBDIVISION K OF THIS SECTION TO IMPOSE SANCTIONS ON
42 THE APPLICANT OR ON ANY CONTROLLING PERSON OF THE APPLICANT.
43 I. SANCTIONS OF WHOLESALE DEALERS, CONTROLLING PERSONS, AND ASSOCI-
44 ATES. BASED ON THE GROUNDS DESCRIBED IN SUBDIVISION K OF THIS SECTION,
45 THE COMMISSIONER OF FINANCE MAY, SUBJECT TO THE RIGHT TO SEEK A HEARING
46 AND REVIEW AS PROVIDED IN SUBDIVISION L OF THIS SECTION, TAKE ONE OR
47 MORE OF THE FOLLOWING ACTIONS:
48 1. REFUSE TO RENEW ANY WHOLESALE LICENSE REQUIRED UNDER THIS CHAPTER;
49 2. SUSPEND OR REVOKE ANY SUCH LICENSE;
50 3. TEMPORARILY OR PERMANENTLY BAN ANY WHOLESALE LICENSEE, CONTROLLING
51 PERSON, OR ASSOCIATE FROM HOLDING ANY LICENSE REQUIRED UNDER THIS CHAP-
52 TER, OR FROM ACTING AS A WHOLESALE DEALER, OR A CONTROLLING PERSON OR
53 ASSOCIATE OF ANY WHOLESALE DEALER IN THE CITY; OR
54 4. IMPOSE CIVIL PENALTIES AS PROVIDED IN SUBDIVISION J OF THIS
55 SECTION.
56 J. CIVIL PENALTIES.
A. 459 5
1 1. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CODE OR ANY OTHER LAW,
2 THE COMMISSIONER OF FINANCE MAY IMPOSE CIVIL PENALTIES AGAINST A WHOLE-
3 SALE DEALER (WHETHER OR NOT LICENSED UNDER THIS SECTION), CONTROLLING
4 PERSON, OR ASSOCIATE FOR ANY OF THE ACTS OR OMISSIONS THAT WOULD CONSTI-
5 TUTE GROUNDS FOR SANCTIONS OF A LICENSEE, CONTROLLING PERSON, OR ASSOCI-
6 ATE SET FORTH IN SUBDIVISION K OF THIS SECTION PURSUANT TO RULES PROMUL-
7 GATED BY THE COMMISSIONER OF FINANCE.
8 2. A WHOLESALE DEALER, CONTROLLING PERSON, OR ASSOCIATE MAY BE SUBJECT
9 TO CIVIL PENALTIES OF UP TO TEN THOUSAND DOLLARS FOR EACH ACT OR OMIS-
10 SION THAT CONSTITUTES GROUNDS FOR SANCTIONS UNDER SUBDIVISION K OF THIS
11 SECTION. ANY CONTROLLING PERSON OF A WHOLESALE DEALER SHALL BE JOINTLY
12 AND SEVERALLY LIABLE WITH THE WHOLESALE DEALER WITH RESPECT TO ANY CIVIL
13 PENALTIES IMPOSED PURSUANT TO THIS SUBDIVISION ON THE WHOLESALE DEALER
14 OR ANY OTHER CONTROLLING PERSON.
15 K. GROUNDS FOR SANCTIONS.
16 1. THE FOLLOWING ARE THE GROUNDS FOR THE ACTION DESCRIBED IN SUBDIVI-
17 SION H OF THIS SECTION AND, WITH RESPECT TO WHOLESALE LICENSEES AND
18 CONTROLLING PERSONS, FOR THE ACTIONS DESCRIBED IN SUBDIVISION I OF THIS
19 SECTION:
20 (A) THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON HAS:
21 (I) FAILED TO COMPLY WITH ANY OF THE PROVISIONS OF THIS CHAPTER OR ANY
22 OF THE RULES PROMULGATED THEREUNDER;
23 (II) KNOWINGLY AIDED AND ABETTED ANOTHER PERSON IN VIOLATING ANY OF
24 THE PROVISIONS OF THIS CHAPTER OR ANY OF THE RULES PROMULGATED THERE-
25 UNDER;
26 (III) FAILED TO COMPLY WITH ANY OF THE PROVISIONS OF ARTICLE TWENTY OR
27 ARTICLE TWENTY-A OF THE TAX LAW OR THE REGULATIONS PROVIDED THEREUNDER
28 AS FINALLY DETERMINED IN A PROCEEDING COMMENCED BY THE NEW YORK STATE
29 DEPARTMENT OF TAXATION AND FINANCE OR OTHER COMPETENT STATE AGENCY OR
30 AUTHORITY;
31 (IV) BEEN CONVICTED IN A COURT OF COMPETENT JURISDICTION OF A CRIME
32 PROVIDED FOR IN THIS TITLE OR IN THE TAX LAW, OR OF ANY OTHER CRIME
33 THAT, IN ACCORDANCE WITH SECTION SEVEN HUNDRED FIFTY-THREE OF THE
34 CORRECTION LAW, HAS A DIRECT BEARING ON THE APPLICANT'S ABILITY TO
35 PERFORM THE DUTIES AND RESPONSIBILITIES OF A WHOLESALE LICENSEE UNDER
36 THIS CHAPTER;
37 (V) COMMITTED FRAUD OR DECEIT DURING OPERATIONS AS A WHOLESALE DEALER
38 OR HAS COMMITTED FRAUD OR DECEIT IN PROCURING A LICENSE, OR IN ATTEMPT-
39 ING TO PROCURE A LICENSE;
40 (VI) AIDED AND ABETTED OR OTHERWISE ASSISTED ANOTHER PERSON IN VIOLAT-
41 ING ANY SANCTION IMPOSED UNDER THIS CHAPTER;
42 (VII) IMPERSONATED ANY OTHER PERSON LICENSED UNDER THIS CHAPTER, OR
43 ANY CONTROLLING PERSON OR ASSOCIATE OF SUCH A PERSON; OR
44 (VIII) IMPERSONATED ANY PERSON REPRESENTED TO BE LICENSED UNDER THIS
45 CHAPTER, OR A CONTROLLING PERSON OR ASSOCIATE OF SUCH A PERSON, WHO IS
46 NOT IN FACT LICENSED UNDER THIS CHAPTER.
47 (B) ANY ASSOCIATE OF THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON
48 HAS:
49 (I) SOLD, TRANSPORTED, OR POSSESSED ANY UNSTAMPED OR UNLAWFULLY
50 STAMPED CIGARETTES IN VIOLATION OF ANY PROVISION OF THIS CHAPTER OR ANY
51 RULES PROMULGATED THEREUNDER;
52 (II) ENGAGED IN THE UNLAWFUL STAMPING OF CIGARETTES; OR
53 (III) AIDED AND ABETTED ANY OTHER PERSON IN ENGAGING IN THE CONDUCT
54 DESCRIBED IN THIS SUBPARAGRAPH.
55 (C) ANY SANCTION AUTHORIZED BY THIS SECTION HAS BEEN FINALLY DETER-
56 MINED PURSUANT TO THIS CHAPTER AGAINST ANY WHOLESALE LICENSEE OR
A. 459 6
1 CONTROLLING PERSON, AND THE SUBJECT WHOLESALE LICENSEE OR CONTROLLING
2 PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE SUCH SANCTION, OR HAS NOT
3 PAID IN FULL ANY CIVIL PENALTY IMPOSED.
4 (D) ANY TAX (INCLUDING ANY RELATED TAX PENALTY) IMPOSED UNDER THIS
5 TITLE, THE TAX LAW, OR ANY RELATED STATUTE HAS BEEN FINALLY DETERMINED
6 TO BE DUE FROM THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON, AND
7 SUCH TAX HAS NOT BEEN PAID IN FULL.
8 (E) THE WHOLESALE LICENSEE OR ANY CONTROLLING PERSON IS THE CONTROL-
9 LING PERSON IN A WHOLESALE DEALER THAT THE COMMISSIONER HAS DETERMINED
10 IS RESPONSIBLE FOR ANY ACTS OR OMISSIONS THAT WOULD CONSTITUTE GROUNDS
11 FOR SANCTIONS UNDER THIS SUBDIVISION.
12 (F) THE WHOLESALE LICENSEE DOES NOT HAVE A VALID LICENSE TO ENGAGE IN
13 THE BUSINESS OF A WHOLESALE CIGARETTE DEALER IN THE STATE OF NEW YORK
14 PURSUANT TO SECTION FOUR HUNDRED EIGHTY OF THE TAX LAW. IF THE GROUNDS
15 FOR SANCTIONS ARE ON THE BASIS SPECIFIED IN THIS SUBPARAGRAPH, THE SANC-
16 TIONS MUST INCLUDE THE REVOCATION OF THE WHOLESALE LICENSE.
17 2. A TEMPORARY OR PERMANENT BAN ON HOLDING ANY LICENSE REQUIRED UNDER
18 THIS CHAPTER OR ON ACTING AS A WHOLESALE DEALER, CONTROLLING PERSON, OR
19 ASSOCIATE, OR THE IMPOSITION OF A CIVIL PENALTY, PURSUANT TO PARAGRAPHS
20 THREE AND FOUR OF SUBDIVISION I OF THIS SECTION, MAY BE IMPOSED ON ANY
21 ASSOCIATE OF A WHOLESALE LICENSEE OR OF A CONTROLLING PERSON FOR ANY OF
22 THE GROUNDS SET FORTH IN SUBPARAGRAPH (B) OF PARAGRAPH ONE OF THIS
23 SUBDIVISION. SUCH SANCTIONS MAY ALSO BE IMPOSED ON ANY ASSOCIATE OF A
24 WHOLESALE LICENSEE OR OF A CONTROLLING PERSON FOR ANY OF THE GROUNDS SET
25 FORTH IN SUBPARAGRAPH (A), (C), (D), OR (E) OF PARAGRAPH ONE OF THIS
26 SUBDIVISION, AS IF THE ACTIONS OF SUCH AN ASSOCIATE WERE THE ACTIONS OF
27 A WHOLESALE LICENSEE OR CONTROLLING PERSON ACTING UNDER THOSE SUBPARA-
28 GRAPHS.
29 3. A TEMPORARY OR PERMANENT BAN ON HOLDING ANY LICENSE REQUIRED UNDER
30 THIS CHAPTER OR ON ACTING AS A WHOLESALE DEALER, CONTROLLING PERSON, OR
31 ASSOCIATE, OR THE IMPOSITION OF A CIVIL PENALTY, PURSUANT TO PARAGRAPHS
32 THREE AND FOUR OF SUBDIVISION I OF THIS SECTION, MAY BE IMPOSED ON ANY
33 UNLICENSED WHOLESALE DEALER, OR ANY CONTROLLING PERSON OR ASSOCIATE OF
34 SUCH AN UNLICENSED WHOLESALE DEALER, FOR ANY OF THE GROUNDS SET FORTH IN
35 THIS SUBDIVISION.
36 L. NOTICES, AND HEARING AND REVIEW PROCEDURE.
37 1. REQUIREMENTS FOR NOTICES.
38 (A) ANY NOTICE PROVIDED UNDER THIS SUBDIVISION, OTHER THAN A NOTICE OF
39 DETERMINATION OF REFUSAL TO APPROVE OR RENEW A LICENSE ISSUED PURSUANT
40 TO PARAGRAPH TWO OF THIS SUBDIVISION, SHALL BE ISSUED TO THE PERSON
41 SUBJECT TO THE NOTICE WITHIN FIVE YEARS OF THE ACT OR OMISSION OR OTHER
42 GROUNDS PROVIDING THE BASIS FOR THE NOTICE AS DESCRIBED IN SUBDIVISION K
43 OF THIS SECTION, IF SUCH NOTICE IS BASED ON THE GROUNDS SET FORTH IN
44 CLAUSE (I), (II), (III), OR (IV) OF SUBPARAGRAPH (A), OR IN SUBPARAGRAPH
45 (B) OR (E) OF PARAGRAPH ONE OF SUBDIVISION K OF THIS SECTION. ANY NOTICE
46 BASED ON GROUNDS SET FORTH IN CLAUSE (V), (VI), (VII), OR (VIII) OF
47 SUBPARAGRAPH (A), OR IN SUBPARAGRAPH (C), (D), OR (F) OF PARAGRAPH ONE
48 OF SUBDIVISION K OF THIS SECTION, MAY BE ISSUED AT ANY TIME.
49 (B) ALL NOTICES PROVIDED UNDER THIS SUBDIVISION SHALL ADVISE THE
50 PERSON SUBJECT TO THE NOTICE THAT THE PROPOSED SANCTIONS OR REFUSAL TO
51 LICENSE MAY BE REVIEWED THROUGH A HEARING PROCESS AS DESCRIBED IN PARA-
52 GRAPH FOUR OF THIS SUBDIVISION.
53 2. A NOTICE OF DETERMINATION OF REFUSAL TO APPROVE OR RENEW A LICENSE
54 SHALL BE ISSUED WITHIN THIRTY DAYS AFTER A COMPLETE APPLICATION FOR THE
55 LICENSE IS RECEIVED BY THE COMMISSIONER OF FINANCE. SUCH NOTICE MAY BE
56 COMBINED WITH A NOTICE OF DETERMINATION OF PROPOSED SANCTIONS.
A. 459 7
1 3. A PROCEEDING TO CHALLENGE A REFUSAL TO APPROVE A LICENSE OR TO
2 CHALLENGE SANCTIONS AUTHORIZED BY THIS SECTION SHALL BE COMMENCED BY THE
3 FILING OF A PETITION PROTESTING THE NOTICE OF REFUSAL ISSUED TO AN
4 APPLICANT OR THE NOTICE OF DETERMINATION OF PROPOSED SANCTIONS ISSUED TO
5 A WHOLESALE DEALER, CONTROLLING PERSON, OR ASSOCIATE, AS PROVIDED IN
6 PARAGRAPH FOUR OF THIS SUBDIVISION.
7 4. THE PERSON TO WHOM A NOTICE DESCRIBED IN PARAGRAPH ONE OR TWO OF
8 THIS SUBDIVISION IS ISSUED SHALL HAVE THE RIGHT TO A HEARING IF SUCH
9 PERSON, WITHIN THIRTY DAYS FROM THE DATE OF SUCH NOTICE, BOTH:
10 (A) SERVES A PETITION FOR A HEARING UPON THE COMMISSIONER OF FINANCE;
11 AND
12 (B) FILES THE PETITION WITH THE TAX APPEALS TRIBUNAL.
13 NOTWITHSTANDING ANY OTHER PROVISION OF THIS CODE TO THE CONTRARY, THE
14 PERSON TO WHOM SUCH NOTICE IS ISSUED SHALL NOT HAVE THE RIGHT TO REQUEST
15 A CONCILIATION CONFERENCE WITH RESPECT TO SUCH NOTICE.
16 5. SUCH HEARING SHALL BE HELD PURSUANT TO THE RULES OF THE TAX APPEALS
17 TRIBUNAL FOR EXPEDITED PROCEEDINGS, EXCEPT THAT THIS PARAGRAPH SHALL NOT
18 APPLY TO A HEARING TO REVIEW SOLELY THE IMPOSITION OF CIVIL PENALTIES
19 PURSUANT TO SUBDIVISION J OF THIS SECTION.
20 6. THE COMMISSIONER MAY ONLY IMPOSE SANCTIONS PURSUANT TO SUBDIVISION
21 I OF THIS SECTION SUBSEQUENT TO THE HEARING DESCRIBED IN PARAGRAPH FOUR
22 OF THIS SUBDIVISION.
23 M. SUSPENSION OF LICENSE AND IMPOSITION OF TEMPORARY BAN BEFORE A
24 HEARING.
25 1. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION TO THE CONTRA-
26 RY, THE COMMISSIONER MAY ISSUE A NOTICE SUSPENDING A LICENSE OR IMPOSING
27 A TEMPORARY BAN ON HOLDING ANY LICENSE REQUIRED UNDER THIS CHAPTER OR ON
28 ACTING AS A WHOLESALE DEALER, CONTROLLING PERSON, OR ASSOCIATE AS
29 AUTHORIZED BY PARAGRAPHS TWO AND THREE OF SUBDIVISION I OF THIS SECTION,
30 PRIOR TO A HEARING UPON FINDING ANY OF THE FOLLOWING EXIGENT CIRCUM-
31 STANCES:
32 (A) THERE ARE GROUNDS FOR SANCTIONS AGAINST ANY LICENSEE, CONTROLLING
33 PERSON, OR ASSOCIATE PURSUANT TO CLAUSE (III), (IV), (V), (VI), (VII),
34 OR (VIII) OF SUBPARAGRAPH (A), OR PURSUANT TO SUBPARAGRAPH (C) OF PARA-
35 GRAPH ONE OF SUBDIVISION K OF THIS SECTION.
36 (B) THERE ARE GROUNDS FOR REVOCATION OF THE WHOLESALE CIGARETTE
37 LICENSE PURSUANT TO SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVISION K
38 OF THIS SECTION.
39 (C) THE LICENSEE, CONTROLLING PERSON, OR ASSOCIATE HAS ENGAGED IN ANY
40 ACTIVITY FOR WHICH SANCTIONS MAY BE IMPOSED PURSUANT TO SUBDIVISION I OF
41 THIS SECTION WITH RESPECT TO THE UNLAWFUL STAMPING OF CIGARETTES, SUCH
42 AS THE UNAUTHORIZED STAMPING OF CIGARETTE PACKAGES, THE PRODUCTION,
43 SALE, TRANSPORT, OR USE OF COUNTERFEIT TAX STAMPS, INCLUDING THE PLACE-
44 MENT OF COUNTERFEIT TAX STAMPS ON PACKAGES OF CIGARETTES, OR THE AIDING
45 OR ABETTING OF ANY OTHER PERSON IN ANY SUCH ACTIVITY.
46 (D) THE LICENSEE, CONTROLLING PERSON, OR ASSOCIATE HAS ENGAGED IN ANY
47 ACTIVITY FOR WHICH SANCTIONS MAY BE IMPOSED PURSUANT TO SUBDIVISION I OF
48 THIS SECTION THAT RESULTED IN TAXES ON MORE THAN TEN THOUSAND CIGARETTES
49 BEING UNPAID OR THAT CREATED A SUBSTANTIAL RISK TO PUBLIC HEALTH OR
50 SAFETY OR PUBLIC ORDER.
51 2. ALL NOTICES PROVIDED UNDER THIS SUBDIVISION SHALL ADVISE THE PERSON
52 SUBJECT TO THE NOTICE THAT SUCH SUSPENSION OR TEMPORARY BAN MAY BE
53 REVIEWED THROUGH A HEARING PROCESS AS DESCRIBED IN PARAGRAPH THREE OF
54 THIS SUBDIVISION. THE PERSON TO WHOM SUCH A NOTICE IS ISSUED SHALL HAVE
55 THE RIGHT TO A HEARING IF SUCH PERSON, WITHIN THIRTY DAYS FROM THE DATE
56 OF SUCH NOTICE, SERVES A PETITION FOR A HEARING UPON THE COMMISSIONER OF
A. 459 8
1 FINANCE AND FILES THE PETITION WITH THE TAX APPEALS TRIBUNAL. NOTWITH-
2 STANDING ANY OTHER PROVISION OF THIS CODE TO THE CONTRARY, THE PERSON TO
3 WHOM SUCH NOTICE IS ISSUED SHALL NOT HAVE THE RIGHT TO REQUEST A CONCIL-
4 IATION CONFERENCE WITH RESPECT TO SUCH NOTICE.
5 3. THE TAX APPEALS TRIBUNAL SHALL PROMULGATE RULES FOR A HEARING TO BE
6 HELD ON AN ACCELERATED SCHEDULE FOLLOWING THE COMMISSIONER'S SUSPENSION
7 OF A LICENSE OR ISSUANCE OF A TEMPORARY BAN PURSUANT TO THIS PARAGRAPH.
8 SUCH A HEARING SHALL COMMENCE WITHIN SEVEN BUSINESS DAYS FROM THE
9 RECEIPT OF A PETITION IN PROPER FORM FOR SUCH A HEARING, AND A DETERMI-
10 NATION SHALL BE RENDERED WITHIN TWELVE BUSINESS DAYS FROM THE COMPLETION
11 OF THE HEARING OR THE SUBMISSION OF BRIEFS RELATED TO THE HEARING,
12 WHICHEVER IS LATER. THE TRIBUNAL WILL REVIEW EN BANC THE DETERMINATION
13 FROM AN ACCELERATED HEARING UPON A REQUEST FOR REVIEW MADE BY ANY PARTY
14 WITHIN SEVEN BUSINESS DAYS FROM THE GIVING OF NOTICE OF SUCH DETERMI-
15 NATION. THE TRIBUNAL SHALL ISSUE A DECISION WITHIN TWENTY BUSINESS DAYS
16 FROM THE RECEIPT OF SUCH REQUEST FOR REVIEW, THE SUBMISSION OF BRIEFS OR
17 THE DATE OF THE ORAL ARGUMENT, WHICHEVER IS LATEST. ANY REQUEST BY THE
18 PETITIONER THAT DELAYS SUCH A HEARING OR DETERMINATION OR REVIEW OF THE
19 DETERMINATION OR DECISION SHALL EXTEND THE TIME LIMITATIONS IMPOSED BY
20 THIS PARAGRAPH.
21 N. AUTHORITY OF THE COMMISSIONER OF CONSUMER AFFAIRS. IN ADDITION TO
22 ANY AUTHORITY PROVIDED UNDER ANY OTHER SECTION OF THIS CODE, THE COMMIS-
23 SIONER OF CONSUMER AFFAIRS MAY SUSPEND OR REVOKE A RETAIL CIGARETTE
24 LICENSE AND IMPOSE ANY CIVIL PENALTIES AUTHORIZED UNDER TITLE TWENTY OF
25 THIS CODE, UPON NOTIFICATION THAT A HOLDER OF SUCH LICENSE HAS BEEN
26 FINALLY DETERMINED PURSUANT TO THIS CHAPTER TO HAVE FAILED TO COMPLY
27 WITH THE PROVISIONS OF THIS CHAPTER OR ANY RULES OF THE COMMISSIONER OF
28 FINANCE PROMULGATED UNDER THIS CHAPTER. THE AUTHORITY PROVIDED TO THE
29 COMMISSIONER OF CONSUMER AFFAIRS IN THIS SUBDIVISION SHALL NOT LIMIT THE
30 AUTHORITY OF THE COMMISSIONER OF FINANCE TO IMPOSE SANCTIONS AND CIVIL
31 PENALTIES UNDER THIS CHAPTER.
32 S 10. Section 11-1306 of the administrative code of the city of New
33 York is amended to read as follows:
34 S 11-1306 Possession [and] OR transportation of unstamped OR UNLAW-
35 FULLY STAMPED cigarettes. A. FOR THE PURPOSES OF THIS CHAPTER, ANY
36 PERSON WHO SHALL POSSESS OR TRANSPORT, AT ANY ONE TIME, MORE THAN FOUR
37 HUNDRED CIGARETTES IN UNSTAMPED OR UNLAWFULLY STAMPED PACKAGES, SHALL BE
38 PRESUMED TO BE A WHOLESALE DEALER, EXCEPT THAT THIS PRESUMPTION SHALL
39 NOT APPLY TO:
40 1. ANY PERSON POSSESSING OR TRANSPORTING MORE THAN FOUR HUNDRED CIGA-
41 RETTES IN UNSTAMPED PACKAGES WHO IS A MANUFACTURER, AN AGENT, OR A
42 PERSON DELIVERING CIGARETTES IN THE REGULAR COURSE OF BUSINESS (A) FOR A
43 MANUFACTURER, AN AGENT, OR A LICENSED WHOLESALE DEALER, OR (B) TO A
44 PLACE OUTSIDE OF THE CITY, PROVIDED SUCH PERSON IS NOT IN VIOLATION OF
45 SUBDIVISION B OF THIS SECTION; OR
46 2. ANY PERSON POSSESSING OR TRANSPORTING ONE THOUSAND OR FEWER CIGA-
47 RETTES IN STAMPED PACKAGES FOR PERSONAL USE, PROVIDED THE COMMISSIONER
48 OF FINANCE DOES NOT PROVE THAT SUCH PERSON HAD KNOWLEDGE THAT SUCH CIGA-
49 RETTES WERE IN UNLAWFULLY STAMPED PACKAGES.
50 B. Every person who shall possess or transport upon the public high-
51 ways, roads or streets of this city more than four hundred cigarettes in
52 unstamped packages, shall be required to have in his or her actual
53 possession invoices or delivery tickets for such cigarettes. All such
54 invoices or delivery tickets shall show the true name and address of the
55 consignor or seller, the true name and address of the consignee or
56 purchaser and the quantity and brands of the cigarettes transported.
A. 459 9
1 [The absence of such invoices or delivery tickets shall be prima facie
2 evidence that such person is a dealer in cigarettes in the city and
3 subject to the provisions of this chapter.]
4 S 11. Subdivision (f) of section 11-4012 of the administrative code of
5 the city of New York, as amended by chapter 201 of the laws of 2009, is
6 amended to read as follows:
7 (f) Any willful act or omission, other than those described in section
8 11-4002 of this chapter or subdivision (a), (b), (c), (d), (e) [or], (g)
9 OR (H) of this section, by any person which constitutes a violation of
10 any provision of chapter thirteen of this title or subchapter one of
11 chapter two of title twenty of the code shall constitute a misdemeanor.
12 S 12. Section 11-4012 of the administrative code of the city of New
13 York is amended by adding a new subdivision (h) to read as follows:
14 (H) ANY PERSON WHO ENGAGES IN ANY ACT IN VIOLATION OF ANY TEMPORARY OR
15 PERMANENT BAN ON HOLDING A LICENSE REQUIRED UNDER CHAPTER THIRTEEN OF
16 THIS TITLE OR ON ACTING AS A WHOLESALE DEALER, CONTROLLING PERSON, OR
17 ASSOCIATE AS IMPOSED BY THE COMMISSIONER OF FINANCE PURSUANT TO CHAPTER
18 THIRTEEN OF THIS TITLE, SHALL BE GUILTY OF A CLASS E FELONY. ANY PERSON
19 WHO VIOLATES THE PROVISIONS OF THIS SUBDIVISION AFTER PREVIOUSLY HAVING
20 BEEN CONVICTED OF A VIOLATION OF THIS SUBDIVISION SHALL BE GUILTY OF A
21 CLASS D FELONY.
22 S 13. Subdivision (b) of section 11-4021 of the administrative code of
23 the city of New York, as amended by chapter 556 of the laws of 2011, is
24 amended to read as follows:
25 (b) The seized cigarettes and any vending machine or receptacle seized
26 therewith, but not the money contained in such vending machine or recep-
27 tacle shall thereupon be forfeited [to the city], unless the person from
28 whom the seizure is made, or the owner of such seized cigarettes, vend-
29 ing machine or receptacle, or any other person having an interest in
30 such property, shall within [ten] THIRTY days [of] FROM such seizure[,
31 apply to the commissioner of finance for a hearing to determine the
32 propriety of the seizure,] SEEK JUDICIAL REVIEW OF THE PROPRIETY OF SUCH
33 SEIZURE THROUGH A PROCEEDING UNDER ARTICLE SEVENTY-EIGHT OF THE CIVIL
34 PRACTICE LAW AND RULES, or unless the commissioner of finance shall on
35 his OR HER own motion release the seized cigarettes, vending machine or
36 receptacle. [After such hearing the commissioner of finance shall give
37 notice of his decision to the petitioner. The decision of the commis-
38 sioner shall be reviewable for error, illegality, unconstitutionality or
39 any other reason whatsoever by a proceeding under article seventy-eight
40 of the civil practice law and rules if application therefor is made to
41 the supreme court within thirty days after the giving of the notice of
42 such decision. Such proceeding shall not be instituted unless there
43 shall first be filed with the commissioner of finance an undertaking,
44 issued by a surety company authorized to transact business in New York
45 state and approved by the superintendent of insurance of New York state
46 as to solvency and responsibility, in such amount as a justice of the
47 supreme court shall approve, to the effect that if such proceeding be
48 dismissed, or the seizure confirmed, the petitioner will pay all costs
49 and charges which may accrue in the prosecution of the proceeding.]
50 S 14. This act shall take effect on the one hundred twentieth day
51 after it shall have become a law, provided that the department of
52 finance and the tax appeals tribunal may promulgate any rules necessary
53 for the implementation of this act prior to the effective date of this
54 act.
