NY Pub Health L § 1399-EE (2021)
2021 New York Laws PBH - Public Health Article 13-F - Regulation of Tobacco Products, Herbal Cigarettes and Smoking Paraphernalia; Distribution to Minors 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.