S T A T E   O F   N E W   Y O R K
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                                  1833

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 12, 2009
                               ___________

Introduced  by  M.  of  A.  DINOWITZ,  MAGEE, GOTTFRIED, GALEF, MILLMAN,
  PAULIN, MAISEL, REILLY, FIELDS, PHEFFER -- Multi-Sponsored by -- M. of
  A.   ALFANO, BACALLES, BARRA,  BOYLAND,  CALHOUN,  CLARK,  CYMBROWITZ,
  GLICK,  JAFFEE,  JOHN, McDONOUGH, McENENY, McKEVITT, P. RIVERA, SPANO,
  SWEENEY, WEISENBERG -- read once and  referred  to  the  Committee  on
  Health

AN  ACT  to  amend the public health law, in relation to the shipment of
  cigarettes

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivisions  1, 2 and 5 of section 1399-ll of the public
health law, as added by chapter 262 of the laws of 2000, are amended  to
read as follows:
  1.  It  shall  be  unlawful  for any person engaged in the business of
selling cigarettes to ship or cause to be shipped any cigarettes to  any
person  in  this  state who is not: (a) a person licensed as a cigarette
tax agent or wholesale dealer under article twenty of  the  tax  law  or
registered  retail dealer under section four hundred eighty-a of the tax
law; (b) an export warehouse proprietor pursuant to chapter  52  of  the
internal  revenue  code  or  an  operator  of a customs bonded warehouse
pursuant to section 1311 or 1555 of title 19 of the United States  Code;
or  (c)  a  person  who  [is] PRESENTS HIMSELF OR HERSELF AS an officer,
employee or agent of the United  States  government,  this  state  or  a
department,  agency,  instrumentality  or  political  subdivision of the
United States or this state, when such person is  acting  in  accordance
with  his  or  her  official duties. For purposes of this subdivision, a
person is a licensed or registered agent or dealer  described  in  para-
graph  (a)  of  this subdivision if his or her name appears on a list of
licensed or registered agents or dealers published by the department  of
taxation  and finance, or if such person is licensed or registered as an
agent or dealer under article twenty of the tax law.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD03159-01-9
              

A. 1833                             2

  2. It shall be unlawful for any common or contract carrier to knowing-
ly transport cigarettes to any person in this state reasonably  believed
by  such  carrier  to be other than a person described in paragraph (a),
(b) or (c) of subdivision one of  this  section.  For  purposes  of  the
preceding  sentence,  if  cigarettes  are transported to a home or resi-
dence, it shall be presumed that the common  or  contract  carrier  knew
that such person was not a person described in paragraph (a), (b) or (c)
of  subdivision  one of this section. It shall be unlawful for any other
person to knowingly transport cigarettes to any person  in  this  state,
other  than to a person described in paragraph (a), (b) or (c) of subdi-
vision one of  this  section.  Nothing  in  this  subdivision  shall  be
construed  to  prohibit a person other than a common or contract carrier
OR A PERSON ENGAGED IN THE BUSINESS OF SELLING  CIGARETTES  from  trans-
porting  not  more  than eight hundred cigarettes at any one time to any
person in this state.
  5. Any person who violates the provisions of subdivision one or two of
this section shall be guilty of a class A misdemeanor and for  a  second
or subsequent violation shall be guilty of a class E felony. In addition
to  the criminal penalty, [the commissioner may impose a civil fine] ANY
PERSON WHO VIOLATES THE PROVISIONS OF SUBDIVISION ONE, TWO OR  THREE  OF
THIS  SECTION  SHALL  BE  SUBJECT  TO  A CIVIL PENALTY not to exceed THE
GREATER OF (A) five thousand dollars for each  such  violation  [on  any
person  who violates subdivision one or two of this section. The commis-
sioner may impose a civil fine not to exceed five thousand  dollars  for
each  violation  of  subdivision  three  of  this  section on any person
engaged in the business of selling cigarettes who ships or causes to  be
shipped  any  such  cigarettes  to any person in this state]; OR (B) ONE
HUNDRED DOLLARS FOR EACH  PACK  OF  CIGARETTES  SHIPPED,  CAUSED  TO  BE
SHIPPED OR TRANSPORTED IN VIOLATION OF SUCH SUBDIVISION.
  S 2. Section 1399-ll of the public health law, as added by chapter 262
of the laws of 2000, is amended by adding a new subdivision 6 to read as
follows:
  6.  THE  ATTORNEY  GENERAL,  MAY  BRING AN ACTION TO RECOVER THE CIVIL
FINES PROVIDED BY SUBDIVISION FIVE OF THIS SECTION AND  FOR  SUCH  OTHER
RELIEF  AS MAY BE DEEMED NECESSARY. IN ADDITION, THE CORPORATION COUNSEL
OF ANY POLITICAL SUBDIVISION THAT IMPOSES A TAX ON CIGARETTES MAY  BRING
AN ACTION TO RECOVER THE CIVIL PENALTIES PROVIDED BY SUBDIVISION FIVE OF
THIS  SECTION  AND FOR SUCH OTHER RELIEF AS MAY BE DEEMED NECESSARY WITH
RESPECT TO ANY CIGARETTES SHIPPED, CAUSED TO BE SHIPPED  OR  TRANSPORTED
IN VIOLATION OF THIS SECTION TO ANY PERSON LOCATED WITHIN SUCH POLITICAL
SUBDIVISION.  ALL  CIVIL  FINES  OBTAINED  IN  ANY  SUCH ACTION SHALL BE
RETAINED BY THE STATE OR MUNICIPALITY  BRINGING  SUCH  ACTION,  PROVIDED
THAT  NO  PERSON  SHALL  BE  REQUIRED TO PAY CIVIL PENALTIES TO BOTH THE
STATE AND A POLITICAL SUBDIVISION WITH RESPECT TO THE SAME VIOLATION  OF
THIS SECTION.
  S 3. This act shall take effect immediately.