480-A - Retail dealer and vending machine registration.

§ 480-a. Retail dealer and vending machine registration. 1. (a) On and  after  January  first,  nineteen hundred ninety-one, every retail dealer  shall publicly display a certificate of registration from the department  in each  place  of  business  in  this  state  through  which  it  sells  cigarettes  or  tobacco  products  at retail. A retail dealer who has no  regular place of business shall publicly  display  such  certificate  on  each of its carts, stands, trucks or other merchandising devices through  which it sells cigarettes or tobacco products in this state.    (b)  Every  person who owns or, if the owner is not the operator, then  any person who operates one  or  more  vending  machines  through  which  cigarettes  or  tobacco  products  are sold in this state, regardless of  whether located on the premises of the vending machine owner or, if  the  owner  is  not  the  operator,  then the premises of the operator or the  premises of any other person, must register each  such  vending  machine  with  the  department.  On  and  after  January  first, nineteen hundred  ninety-one, a vending machine registration certificate, in such form  as  may  be prescribed by the commissioner of taxation and finance, shall be  affixed to each vending machine  through  which  cigarettes  or  tobacco  products are sold in this state.    (c)  Registrations  of  retail  dealers  and vending machines shall be  valid for a calendar year period upon payment of the fee  prescribed  in  subdivision  two  of  this  section  and  must be renewed each year upon  payment  of  such  fee.  A  registration  shall  not  be  assignable  or  transferable.  In  the case of retail dealers a registration certificate  shall be surrendered to  the  department  immediately  upon  the  retail  dealer's  ceasing  to  do  business  as  specified  in  the registration  certificate, or in the event that such business never commenced.    (d) (i) The commissioner shall not register  retail  dealers  or  such  registration  may  be  cancelled  or  suspended by the commissioner upon  notification that the applicant or retail dealer has been convicted in a  criminal proceeding of a violation of subdivision five of section 260.20  of the penal law or as directed by an enforcement  officer  pursuant  to  article  thirteen-F  of  the  public  health law. The clerk of the court  shall promptly report all criminal convictions under subdivision five of  section 260.20 of the penal law to the  commissioner,  together  with  a  direction  to the commissioner to cancel such registration or to suspend  it for a specified period of time. Anything to the contrary in  any  law  notwithstanding,  retail  dealers shall have no right to a hearing under  this chapter and shall have no right  to  commence  a  court  action  or  proceeding  or to any other legal recourse against the commissioner with  respect to any action taken by the commissioner  under  this  paragraph,  provided  nothing  herein  shall  be  construed to deny retail dealers a  hearing under article thirteen-F of the public health law or to prohibit  retail dealers from commencing a court action or proceeding  against  an  enforcement   officer   as   defined   in   section   thirteen   hundred  ninety-nine-aa of the public health law.    (ii)  Anything  to  the  contrary  in  any  law  notwithstanding,  the  commissioner  shall  provide  upon  request to an enforcement officer as  defined in section thirteen hundred ninety-nine-aa of the public  health  law  such  registration information as is relevant and necessary for the  implementation of article thirteen-F of the public health law.    (e) The commissioner may refuse to register as a retail dealer or  may  revoke  the  registration  of  a  retail dealer where the applicant's or  retail dealer's place of business is at the same premises as that  of  a  retail  dealer  whose  retail  dealer  registration has been revoked and  where such revocation is still in effect, unless the applicant or retail  dealer   provides   the   commissioner   with   adequate   documentation  demonstrating that such applicant or retail dealer acquired the premisesor  business  through  an  arm's  length  transaction as defined in this  paragraph and that the sale or lease was not conducted, in whole  or  in  part, for the purpose of permitting the original registrant to avoid the  effect of the previous revocation for the same premises. For purposes of  this  paragraph, "arm's length transaction" means a sale of a fee or all  undivided interests in real property, or lease of any part thereof, or a  sale of a business, in good faith and for valuable  consideration,  that  reflects  the  fair  market  value  of  such  real property or lease, or  business, in the open market, between two informed and willing  parties,  where neither is under any compulsion to participate in the transaction,  unaffected by any unusual conditions indicating a reasonable possibility  that  the  sale  or  lease  was  made  for the purpose of permitting the  original registrant to avoid the effect of the previous  revocation  for  the  same  premises. The following sales or leases shall be presumed not  to  be  arm's  length  transactions  unless  adequate  documentation  is  provided  demonstrating  that  the  sale  or lease was not conducted, in  whole or in part, for the purpose of permitting the original  registrant  to avoid the effect of the previous revocation for the same premises:    (i) a sale between relatives; or    (ii) a sale between related companies or partners in a business; or    (iii)  a  sale  or lease affected by other facts or circumstances that  would indicate that the sale or lease is entered into  for  the  primary  purpose of permitting the original registrant to avoid the effect of the  previous revocation for the same premises.    2.  (a)  (i)  Every  retail  dealer and every person owning or, if the  owner is not the operator, then any person operating one or more vending  machines through which cigarettes or tobacco products are sold  in  this  state,  who  is required under section eleven hundred thirty-six of this  chapter to file a return for the quarterly period ending on the last day  of August, nineteen hundred ninety or for the quarterly period ending on  the last day of August in any year thereafter, must file an  application  for  registration under this section with that quarterly return, in such  form as shall be prescribed by the commissioner.    (ii) Each retail dealer must pay an application fee with the quarterly  return described by subparagraph (i) of this paragraph for  each  retail  place  of  business  in  this state through which it sells cigarettes or  tobacco products, which is  based  on  gross  sales  of  that  place  of  business  during the previous calendar year. The application fee is: one  thousand dollars for each retail place  of  business  with  gross  sales  totaling  less  than  one  million  dollars;  two  thousand five hundred  dollars for each retail place of business with gross sales  totaling  at  least  one  million  dollars but less than ten million dollars; and five  thousand dollars for each retail place  of  business  with  gross  sales  totaling at least ten million dollars.    (iii) Every person who owns or, if the owner is not the operator, then  any  person  who  operates  one  or  more vending machines through which  cigarettes or tobacco products are sold in  this  state,  regardless  of  whether  located on the premises of the vending machine owner or, if the  owner is not the operator, then the premises  of  the  operator  or  the  premises  of  any  other  person,  must  pay an application fee with the  quarterly return described by subparagraph (i)  of  this  paragraph  for  each  vending  machine,  which  is  based on gross sales of that vending  machine during the previous calendar year. The application fee  is:  two  hundred fifty dollars for each vending machine with gross sales totaling  less  than one hundred thousand dollars; six hundred twenty-five dollars  for each vending machine with gross sales totaling at least one  hundred  thousand dollars but less than one million dollars; and one thousand two  hundred fifty dollars for each vending machine with gross sales totalingat  least  one million dollars. The department will issue a registration  certificate, as prescribed by  the  commissioner,  after  receipt  of  a  registration  application and the appropriate registration fee, prior to  the next succeeding January first.    (b)  Every retail dealer and every person who owns or, if the owner is  not the operator, then any person  who  operates  one  or  more  vending  machines  through  which cigarettes or tobacco products are sold in this  state who commences business after the  last  day  of  August,  nineteen  hundred  ninety, or who commences selling cigarettes or tobacco products  at retail through a new or different place of  business  in  this  state  after such date, or who commences selling cigarettes or tobacco products  through  new  or  different  vending machines after such date, must file  with the  commissioner  an  application  for  registration,  in  a  form  prescribed  by  him  or  her,  at  least thirty days prior to commencing  business or commencing sales. Each application must be accompanied by an  application fee for each retail  place  of  business  and  each  vending  machine  to  be  registered.  The  amount  of  the  application  fee  is  determined by subparagraphs (ii) and (iii)  of  paragraph  (a)  of  this  subdivision, except that any retail place of business or vending machine  with  zero  dollars  in gross sales during the previous calendar year is  subject to the lowest application fee required  by  such  subparagraphs.  The  department,  within  ten  days  after receipt of an application for  registration under this paragraph and payment  of  the  proper  fee  for  application  for registration, will issue a registration certificate, as  prescribed by the commissioner, for each retail  place  of  business  or  cigarette or tobacco products vending machine registered.    (c)  In addition to the powers granted to the commissioner of taxation  and finance in this chapter, the commissioner is  hereby  authorized  to  make  provisions  for  the joint administration, in whole or in part, of  the state and local taxes imposed by article twenty-eight and authorized  to  be  imposed  by  article  twenty-nine  of  this  chapter   and   the  registrations and fees for application for registration required by this  section,  including  the  joint  reporting,  assessment,  collection and  determination of such taxes and the registration and fees  provided  for  in  this  section,  and  for  that purpose, to prescribe that any of the  commissioner's functions under such articles or this  section,  and  any  returns,  forms, statements, documents or information to be submitted to  the commissioner under such articles or  this  section,  any  books  and  records to be kept for purposes of the taxes imposed or authorized to be  imposed  by such articles or for purposes of this section, any schedules  of amounts to be collected under such  articles  or  this  section,  any  registration  required  under  such  articles  or  this section, and the  payment of taxes under such articles, or  of  fees  under  this  section  shall be on a joint basis.    (d)  Except  as otherwise provided in this section, all the provisions  of article  twenty-eight  of  this  chapter  relating  to  the  personal  liability  for  the tax, administration, collection and determination of  tax, and deposit and disposition of revenue,  including  section  eleven  hundred  thirty-eight  of  this chapter relating to determination of tax  and  section  eleven  hundred  forty-five  of  this  chapter  (but  only  paragraphs  one  and two of subdivision (a) of such section) relating to  penalties and interest for failure to file a return or  pay  tax  within  the  time required, shall apply to the applications for registration and  the fees for filing such applications required by this section  and  the  penalty  imposed  pursuant  to  subdivision three of this section, as if  such applications were returns required  under  section  eleven  hundred  thirty-six  of this chapter and such filing fees, penalties and interest  were taxes required to be paid pursuant to such article twenty-eight, inthe same manner and with the same force and effect as if the language of  such provisions of such article twenty-eight had  been  incorporated  in  full  into this article, except to the extent that any such provision is  either  inconsistent with a provision of this section or is not relevant  thereto and with such other modifications as may be necessary  to  adapt  the  language  of  such  provisions  to  the provisions of this section.  Section eleven hundred thirty-four of such  article  twenty-eight  shall  not  apply  to this section. Provided, however, that the commissioner of  taxation and finance shall refund or credit an application fee paid with  respect to the registration of a vending machine or a  retail  place  of  business in this state through which cigarettes or tobacco products were  to  be sold if, prior to the beginning of the calendar year with respect  to which such registration  relates,  the  certificate  of  registration  described  in  paragraph  (a)  of  this  subdivision  is returned to the  department of taxation and finance, or  if  such  certificate  has  been  destroyed,  the retail dealer or vending machine operator satisfactorily  accounts to the commissioner  for  the  missing  certificate,  but  such  vending  machine  or  retail  place  of business may not be used to sell  cigarettes or tobacco products in this state during such calendar  year,  unless  it  is  re-registered.  The provisions of section eleven hundred  thirty-nine of  this  chapter  shall  apply  to  the  refund  or  credit  authorized  by the preceding sentence and for such purposes, such refund  or credit shall be deemed a  refund  of  tax  paid  in  error  provided,  however, no interest shall be allowed or paid on any such refund.    3.  In  addition to any other penalty imposed by this chapter: (a) Any  retail dealer who violates the provisions of  this  section,  after  due  notice and an opportunity for a hearing, for a first violation is liable  for  a  civil fine not less than five thousand dollars but not to exceed  twenty-five thousand dollars and for a second  or  subsequent  violation  within  three years following a prior finding of violation is liable for  a civil fine not less than  ten  thousand  dollars  but  not  to  exceed  thirty-five thousand dollars; or    (b) Any person who owns or, if the owner is not the operator, then any  person   who  operates  one  or  more  vending  machines  through  which  cigarettes or tobacco products are sold in this state and  who  violates  the  provisions of this section, after due notice and an opportunity for  a hearing, for a first violation is liable for a  civil  fine  not  less  than  seven hundred fifty dollars but not to exceed two thousand dollars  and for a second or subsequent violation within three years following  a  prior  finding of violation be liable for a civil fine not less than two  thousand dollars but not to exceed six thousand dollars.    4. (a) If a retail dealer possesses or sells unstamped  or  unlawfully  stamped  packages  of cigarettes, or if a retail dealer is also licensed  as an  agent  pursuant  to  section  four  hundred  seventy-two  and  it  possesses  unlawfully  stamped packages of cigarettes or sells unstamped  or  unlawfully  stamped  packages  of  cigarettes  at  retail,  (i)  its  registration  shall  be  suspended  for  a  period  of not more than six  months, or (ii) for a second such possession or sale within a period  of  five  years,  its  registration shall be suspended for a period of up to  thirty-six months, or (iii) for a third such possession or sale within a  period of five years, its registration may be revoked for a period of up  to five years. A  retail  dealer  registration  shall  be  suspended  or  revoked  pursuant  to  this  subdivision  immediately upon such dealer's  receipt  of  written  notice  of  suspension  or  revocation  from   the  commissioner.  If a retail dealer sells cigarettes through more than one  place of business in this state, the retail  dealer  registration  shall  not  be  suspended  or  revoked  pursuant  to  this subdivision, but the  certificate of registration issued  to  the  place  of  business,  cart,stand, truck or other merchandising device where unstamped or unlawfully  stamped  cigarettes  were  found  shall  be  suspended  or cancelled for  possession or sale  of  unstamped  or  unlawfully  stamped  packages  of  cigarettes,  as if such certificate of registration were a retail dealer  registration.  A  suspension  or  cancellation  of  a   certificate   of  registration  shall  be treated as if it were a suspension or revocation  of a registration. If unstamped or  unlawfully  stamped  cigarettes  are  found  in  a  retail dealer's warehouse, the suspension or revocation of  the retail dealer's registration pursuant to this subdivision  shall  be  applicable  to each retail place of business in this state through which  such retail dealer sells cigarettes.    (b) A retail dealer who is notified of a suspension or  revocation  of  its  registration  pursuant  to this subdivision shall have the right to  have the suspension or revocation reviewed by the  commissioner  or  his  designee  by  contacting  the  department  at  a  telephone number or an  address to be disclosed in the notice of suspension or revocation within  ten days of such dealer's  receipt  of  such  notification.  The  retail  dealer  may  present  written  evidence  or  argument  in support of its  defense to the suspension or revocation, or may appear  at  a  scheduled  conference  with  the  commissioner  or  his  designee  to  present oral  arguments and written and oral evidence in support of such defense.  The  commissioner  or  his designee is authorized to delay the effective date  of the suspension or revocation to enable the retail dealer  to  present  further  evidence  or  arguments  in  connection  with the suspension or  revocation. The commissioner or his designee shall cancel the suspension  or revocation of registration if the commissioner or his designee is not  satisfied by a preponderance of the  evidence  that  the  retail  dealer  possessed   or   sold   unstamped  or  unlawfully  stamped  packages  of  cigarettes.    (c)  An  order  of  suspension  or  revocation  of  a  retail   dealer  registration shall not be reviewable by the division of tax appeals, but  may  be reviewed pursuant to article seventy-eight of the civil practice  law and rules by a proceeding commenced in the supreme court within four  months of the suspension or revocation of registration petitioning  that  the  order  of  suspension  or revocation be enjoined or set aside. Such  proceeding shall be instituted in the county where the commissioner  has  his  principal  office. Upon the filing of such petition the court shall  have jurisdiction to set aside such order of suspension  or  revocation,  in whole or in part, or to dismiss the petition. The jurisdiction of the  supreme  court  shall be exclusive and its order dismissing the petition  or enjoining or setting aside such order, in whole or in part, shall  be  final,  subject to review by the appellate division of the supreme court  and the court of appeals in the same manner and form and with  the  same  effect  as  provided  by  law  for  appeals from a judgment in a special  proceeding. All such proceedings shall be heard and  determined  by  the  court  and  by any appellate court as expeditiously as possible and with  lawful precedence over other civil matters.  All  such  proceedings  for  review  shall be heard on the petition, transcript and other papers, and  on appeal shall be heard on the record, without requirement of printing.    (d) After review of the suspension or revocation  of  registration  by  the commissioner or his designee is complete, or the time within which a  retail dealer may request such review has expired without such a request  having  been  made,  notice  of the suspension or revocation of a retail  dealer registration pursuant to this subdivision shall be given  by  the  commissioner  to the head of the division of the lottery for the purpose  of enforcement of section sixteen hundred seven of this chapter and such  division may suspend or revoke any license  issued  with  respect  to  a  lottery  agent's  specific  location  pursuant to article thirty-four ofthis chapter if such lottery agent is  a  retail  dealer  of  cigarettes  whose registration for such location is suspended or revoked pursuant to  this section. In addition, notice of such suspension or revocation shall  also  be  given  to  the division of alcoholic beverage control and such  suspension or revocation shall constitute cause, for purposes of section  one  hundred  eighteen  of  the  alcoholic  beverage  control  law,  for  revocation,  cancellation  or suspension of any license or permit issued  pursuant to such law.    5. Except for subdivision (i) of section eighteen hundred fourteen  of  this  chapter,  the criminal penalties set forth in article thirty-seven  of this chapter shall not apply to a violation of this section.