2012 New York Consolidated Laws
TAX - Tax
Article 20-A - (483 - 489) CIGARETTE MARKETING STANDARDS
484 - Unlawful acts; violations of article.

 
    §  484.  Unlawful acts; violations of article. (a) Notwithstanding any
  other provision of law, it shall be unlawful and  a  violation  of  this
  article:
    1.  For  any  agent, wholesale dealer or retail dealer, with intent to
  injure competitors or destroy or substantially  lessen  competition,  or
  with  intent to avoid the collection or paying over of such taxes as may
  be required by law, to advertise, offer to sell, or sell  cigarettes  at
  less  than  cost of such agent wholesale dealer or retail dealer, as the
  case may be.
    2. For any wholesale dealer:
    (A) to induce or attempt to induce or to procure or attempt to procure
  the purchase of cigarettes at a price less than the cost  of  the  agent
  with respect to sales to wholesale dealers; or
    (B) to induce or attempt to induce or to procure or attempt to procure
  any  rebate or concession of any kind or nature whatsoever in connection
  with the purchase of cigarettes.
    3. For any chain store:
    (A) to induce or attempt to induce or to procure or attempt to procure
  the purchase of cigarettes at a price less than the cost  of  the  agent
  with respect to sales to chain stores; or
    (B) to induce or attempt to induce or to procure or attempt to procure
  any  rebate or concession of any kind or nature whatsoever in connection
  with the purchase of cigarettes.
    4. For any retail dealer:
    (A) to induce or attempt to induce or to procure or attempt to procure
  the purchase of cigarettes at a price less than the cost  of  the  agent
  for  sales  to retail dealers, if purchased from an agent, or at a price
  less than the cost of the wholesale dealer; or
    (B) to induce or attempt to induce or to procure or attempt to procure
  any rebate or concession of any kind or nature whatsoever in  connection
  with the purchase of cigarettes.
    5.  (A)  Upon  a  first  violation  of  any  of the provisions of this
  article,  after  due  notice  and  opportunity  for   a   hearing,   the
  commissioner  may  suspend  the license of any agent or wholesale dealer
  for a period of not more than thirty days or impose a civil fine not  to
  exceed twenty thousand dollars or both such suspension and fine.
    (B) Upon a second or subsequent violation committed within three years
  following a prior finding of violation, after due notice and opportunity
  for a hearing, the commissioner shall revoke the license of any agent or
  wholesale  dealer unless (i) the penalty imposed for the first violation
  was a fine only; or (ii) the commissioner determines, on  a  showing  by
  the  agent  or wholesale dealer, that the second or subsequent violation
  is due to reasonable cause or that such agent or wholesale dealer  acted
  in  good  faith, in which case the commissioner may suspend such license
  for a period of not more than sixty days or impose a civil fine  not  to
  exceed fifty thousand dollars or both such suspension and fine.
    (C)  In  determining  whether to suspend or revoke or in assessing the
  amount of any fine under this paragraph the commissioner shall give  due
  consideration  to  the gravity of the violation, the size of the agent's
  or wholesale dealer's business, the amount of the sale in  violation  of
  this  article  below  the  minimum  markup  and  the history of previous
  violations. The penalties  provided  for  in  this  paragraph  shall  be
  determined,  assessed,  collected  and  paid  in  the manner provided in
  section four hundred seventy-eight of this chapter, as if such penalties
  were taxes imposed pursuant to this article.
    6. Evidence of advertisement, offering to sell or sale  of  cigarettes
  by  any  agent,  wholesale  dealer, chain store or retail dealer at less
  than cost, or evidence of any offer of a rebate in price, or giving of a

  rebate in price, or an offer  of  a  concession,  or  the  giving  of  a
  concession  of any kind or nature whatsoever in connection with the sale
  of cigarettes, or the inducing or attempt to induce or to the  procuring
  or  the  attempt  to  procure the purchase of cigarettes at a price less
  than cost of the agent, wholesale dealer,  chain  store  or  the  retail
  dealer,  shall  be  prima facie evidence of intent to injure competitors
  and to destroy or substantially lessen  competition,  or  of  intent  to
  avoid  the collection or paying over of such taxes as may be required by
  law.
    (b) 1. An action may be maintained in the supreme  court  to  prevent,
  restrain  or  enjoin a violation, or threatened violation, of any of the
  provisions of this article. Such an action  may  be  instituted  by  any
  person injured by any violation or threatened violation of this article,
  or  by  the  tax commission. If in such action a violation or threatened
  violation of this article shall be established, the court  shall  enjoin
  and  restrain,  or  otherwise  prohibit,  such  violation  or threatened
  violation. In such action it shall not be necessary that actual  damages
  to the plaintiff be alleged or proved, but where alleged and proved, the
  plaintiff  in  said  action,  in  addition to such injunctive relief and
  costs of suit, including reasonable attorney's fees, shall  be  entitled
  to  recover  from  the  defendant  the  actual damages sustained by such
  plaintiff.
    2. In the event that no injunctive relief is sought or  required,  any
  person injured by a violation of this article may maintain an action for
  damages  and  costs  of suit in the supreme court as provided for in the
  civil practice law and rules.
    (c) Any  contract,  expressed  or  implied,  made  by  any  person  in
  violation  of any of the provisions of this article is declared to be an
  illegal and void contract, and no recovery thereon shall be had.
    (d) The provisions of this article shall not be applicable to any sale
  as to which the tax imposed by section four hundred seventy-one of  this
  chapter  is not applicable or to a sale to the department of corrections
  and community supervision of this state for sale to or use by inmates in
  institutions under the jurisdiction of such department.