2012 New York Consolidated Laws
PBH - Public Health
Article 13-F - (1399-AA - 1399-MM) 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 dollars for a first violation, and a minimum  of  five  hundred
  dollars,  but  not  to exceed one 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 six months. The three points serving as the basis for a
  suspension shall be erased upon the completion of the six month penalty.
    (f) Surcharge. A 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.