§ 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 premises
or 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.

(f) In addition to the grounds for refusal of a registration specified
in section eleven hundred thirty-four of this chapter, the commissioner
may refuse to register any person as a retail dealer where any tax under
this chapter, or a tax or fee administered by the commissioner under any
other law, has been finally determined to be due from such person, or
from a person required to collect tax with respect to such person or
another person, and has not been paid.

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 of three hundred dollars for each retail place of business in
this state through which it sells cigarettes or tobacco products.

(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 of one hundred dollars for each vending machine. 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 of three hundred dollars for each retail place of
business and one hundred dollars for each vending machine to be
registered. 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, in
the 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.
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.

(c) If a retail dealer does not possess a valid registration, either
because it failed to obtain a registration or its registration is
suspended or revoked and the commissioner or their designee, pursuant to
their authority under this article, attempts to inspect such premises
for a violation of this section and such retail dealer, including an
agent thereof, is found, after notice and opportunity to be heard, to
have refused such inspection, such retail dealer shall be subject to a
penalty of up to four thousand dollars for a first refusal and up to
eight thousand dollars for a second or subsequent refusal within three
years of a prior refusal.

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 revoked for a period of one year, or (ii) for a
second such possession or sale within a period of five years by a retail
dealer or any affiliated person of such retail dealer, the registration
of such retail dealer and the registration of any retail dealer that is
an affiliated person of such retail dealer shall be revoked for a period
of three years, or (iii) for a third such possession or sale within a
period of five years by a retail dealer or any affiliated person of such
retail dealer, the registration of such retail dealer and the
registration of any retail dealer that is an affiliated person of such
retail dealer shall be revoked for a period of five years. A retail
dealer registration shall be revoked pursuant to this subdivision
immediately upon such dealer's receipt of written notice of revocation
from the commissioner. If unstamped or unlawfully stamped cigarettes are
found in a retail dealer's warehouse or a warehouse of any affiliated
person of such retail dealer, the 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
and any affiliated person of such retail dealer sells cigarettes.

(a-1) If a retail dealer, including an agent thereof, refuses to
comply with the requirements of subdivision four of section four hundred
seventy-four of this article its registration may be revoked (i) for a
period of one year, or (ii) for a second such violation within a period
of five years for up to three years, or (iii) for a third or subsequent
violation within a period of seven years for a period up to ten years. A
retail dealer registration shall be considered to be revoked pursuant to
this subdivision immediately upon such dealer's receipt of written
notice of revocation from the commissioner.

(b) A retail dealer who is notified of a revocation of its
registration pursuant to this subdivision shall have the right to have
the revocation reviewed by the commissioner or his or her designee by
contacting the department at a telephone number or an address to be
disclosed in the notice of 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 revocation, or may
appear at a scheduled conference with the commissioner or his or her
designee to present oral arguments and written and oral evidence in
support of such defense. The commissioner or his or her designee is
authorized to delay the effective date of the revocation to enable the
retail dealer to present further evidence or arguments in connection
with the revocation. The commissioner or his or her designee shall
cancel the revocation of registration if the commissioner or his or her
designee is not satisfied by a preponderance of the evidence that the
retail dealer violated paragraph (a) or (a-1) of this subdivision, as
may be applicable.

(c) An order of 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
revocation of registration petitioning that the order of revocation be
enjoined or set aside. Such proceeding shall be instituted in the county
where the commissioner has his or her principal office. Upon the filing
of such petition the court shall have jurisdiction to set aside such
order of 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 revocation of registration by the commissioner
or his or her 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 revocation of a retail dealer registration
pursuant to paragraph (a) of 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 of
this 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 revocation shall also be given
to the state liquor authority and such 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.

6. (a) No retail dealer who has its retail dealer registration
cancelled, suspended or revoked pursuant to this section or has been
forbidden from selling cigarettes or tobacco products pursuant to
paragraph (j) of subdivision one of section four hundred eighty of this
article shall possess cigarettes or tobacco products in any place of
business, cart, stand, truck or other merchandising device in this state
beginning on the tenth day after such cancellation, suspension,
revocation, or forbiddance and continuing for the duration of the same;
provided however, such retail dealer shall not be prohibited before the
tenth day after such cancellation, suspension, revocation, or
forbiddance from selling or transferring its inventory of lawfully
stamped cigarettes or tobacco products on which the taxes imposed by
this article have been assumed or paid to a properly registered retail
dealer whose registration is not cancelled, suspended, or revoked or who
has not been forbidden from selling cigarettes or tobacco products.

(b) No retail dealer shall possess cigarettes or tobacco products in
any place of business, cart, stand, truck or other merchandising device
in this state unless it has obtained a valid retail dealer registration
from the commissioner.

(c) The possession of cigarettes or tobacco products by an unlicensed
retail dealer in violation of paragraph (a) or (b) of this subdivision
shall be subject to the penalties authorized by subdivision three of
this section.