Bill S220-2013

Relates to licensing of gun dealer employees, recertification of gun licensees and reporting of misdemeanor crimes of domestic violence

Relates to licensing of gun dealer employees, recertification of gun licensees and reporting of misdemeanor crimes of domestic violence; requires employee certification and certificates of employment.

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  • Jan 8, 2014: REFERRED TO CODES
  • Jan 9, 2013: REFERRED TO CODES

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BILL NUMBER:S220

TITLE OF BILL:

An act to amend the general business law, the penal law and the judiciary law, in relation to licensing of gun dealer employees, recertification of gun licensees and reporting of misdemeanor crimes of domestic violence

PURPOSE OF THE BILL:

This bill would enhance New York's ability to ensure that individuals in possession of firearms licenses and who sell guns at gun stores are legally entitled to possess these weapons. The bill would require that: (1) employees of gunsmiths and gun dealers undergo a National Instant Criminal Background Check System (NICS) check; (2) any person holding a New York firearm, gunsmith or firearm dealer license undergo a NICS check every three or five years; and (3) the administrator of the courts establish a procedure for transmission of information about persons convicted of misdemeanor crimes of domestic violence to the NICS index. In order to help prevent thefts of weapons, it also would remove the street addresses of firearm licensees from the category of public records.

SUMMARY OF PROVISIONS:

Section 1 of the bill would re-number the existing Article 40 of the General Business Law and add a new Article 40 entitled "Employees of Gunsmiths and Dealers in Firearms, Rifles and Shotguns." Under this article, it would be unlawful for a gun dealer - defined as a person or entity licensed as a dealer in firearms under Penal Law § 400 or pursuant to 18 U.S.C. § 923 - to employ a person who would in any way handle firearms, rifles or shotguns, unless the dealer had conducted a NICS check which demonstrated that the employee's possession of such weapons would not violate federal law. Upon receipt of a favorable NICS result, the dealer would complete and file a certificate of employment with the State Police, and retain a copy of the certificate on the dealer's premises A dealer who employed someone without obtaining a favorable NICS check would be guilty of a misdemeanor.

Section 2 of the bill would add a new Penal Law § 400.00(10-a) to require that any person holding a license issued pursuant to section 400.00 must be "recertified" by the licensing official upon renewal of the license or every five years, by having a NICS check conducted which demonstrates that possession of a firearm by the licensee would not violate federal law Licensing officials would have until December 1, 2014 to conduct these checks on all persons who hold licenses on the effective date of this act, pursuant to a schedule promulgated by the superintendent of state police, who would also have the authority to promulgate rules to effectuate the implementation of this new requirement.

Section 3 of the bill would require the Administrator of the Courts to adopt rules to provide a procedure for transmission of information about persons convicted of misdemeanor crimes of domestic violence to the NICS index.

Section 4 of the bill would remove a provision that makes the address of a gun licensee a public record.

Section 5 of the bill contains the effective date.

EXISTING LAW:

The NICS index contains records concerning convictions, mental health adjudications and other events that may disqualify a person from purchasing a firearm, which under federal law is broadly defined to include any type of weapon which will, is designed to, or may be converted to expel a projectile by the action of an explosive. Federal Firearms Licensees (FFLs) must check the NICS index before transferring a firearm to a customer.

Under Chapter 491 of the laws of 2008, the Offices of Mental Health (OMH) and Mental Retardation and Developmental Disabilities (OMRDD) are authorized to transmit records of mental health disqualifying events, such as involuntary commitments, to NICS. Since the effective date of this legislation, OMH has transmitted to NICS approximately 150,000 records involving involuntary commitments of approximately 75,000 people to OMH facilities between 1989 and March 31, 2009.

Possession of a pistol or revolver is generally illegal in New York unless the person has obtained a license under Penal Law § 400.00. Except in Westchester, Nassau and Suffolk counties, and in New York City, licensing officials issue permanent licenses that remain valid until revoked, Licenses must be renewed every five years in Westchester, Nassau and Suffolk Counties, and every three years in New York City, Gunsmiths and dealers in firearms also must obtain licenses, which must be renewed every three years.

A licensee's conviction of a felony or other serious offense operates as a revocation of the license. The Division of Criminal Justice services (DCJS) alerts a licensing official when it receives notification from a police agency or court that a licensee has been fingerprinted for a criminal offense in New York State.

Under Penal Law § 400.00(5), the names and addresses of gun licensees are public records.

STATEMENT IN SUPPORT:

1. Use of NICS to Ensure that Licenses Issued to Persons Disqualified from Possessing Handguns under Federal Law are Revoked.

In New York State, there are over 940,000 active pistol and revolver licenses on file with the Division of State Police (DSP), not including licenses issued by New York City. Except in those few counties in which licenses are issued only for limited terms and must be periodically renewed, there is no existing statutory mechanism for a licensing official to know whether a holder of a license has become

disqualified from possessing a weapon as a result of a mental health commitment or an out-of-state conviction. Moreover, some of the active licenses in the DSP database were issued as "permanent" licenses as early as 1936, and it is reasonable to assume that a number of the license holders are no longer alive.

This bill would help to address these issues in a manner that will not unduly burden law-abiding gun owners or local licensing officials, by requiring gun licensees to have their licenses "recertified" every five years by a NICS check. This approach is advantageous for several reasons. First, it would not change existing law that permits licensing officials in most jurisdictions to issue permanent licenses, nor would it make existing permanent licenses subject to expiration. Instead, it would allow a permanent license to remain valid unless a NICS check demonstrates that the licensee's continued possession of a pistol or revolver would violate federal law.

Second, a NICS check, rather than a full background check, can be accomplished promptly and without imposing an undue burden on local licensing officials. Indeed, in the vast majority of cases, it is expected that the NICS check will be "clean," and the licensing official will merely have to report that fact to DSP. In cases in which the NICS check reveals a disqualification, the licensing official will have to determine whether the NICS information is accurate and may have to revoke a license and notify DSP of the revocation, just as he or she is currently required to do when notified that the license holder has been convicted of a felony offense. The limited burden imposed by this process is greatly outweighed by the benefits to public safety.

Third, under this bill, localities will have the ability to offset any expense created by this legislation. The bill authorizes a county to impose a small fee on licensees of no more than $20.00, to help defray any new costs that may result from the recertification process. In addition, licensing officials will have five years to complete recertifications for existing license holders, pursuant to a schedule promulgated by the Superintendent of State Police.

Fourth, a NICS check - rather than a more burdensome full background check will be sufficient in the vast majority of cases to identify licensees whose possession of a handgun is not longer lawful. The NICS index has been significantly enhanced by the addition of over 150,000 disqualifying mental health records, and would be further enhanced by provisions of this bill that will result in information being included in the index concerning convictions for misdemeanor crimes of domestic violence. A NICS check every five years will ensure that the official is notified of two events that may affect the licensee's continued eligibility to possess a handgun: (a) an involuntary commitment to a mental health facility; and (b) a conviction, in any state, of a disqualifying offense that has been reported to the NICS index.

Finally, an additional benefit of the NICS recertification process is that it will allow county clerks and DSP to update their records of active gun licensees. Any licensee who does not obtain a five-year recertification will have his or her license revoked. This will

purge the existing state and local license databases of deceased gun licensees, and provide a means by which law enforcement officials can begin to investigate the whereabouts of any handguns that are unaccounted for.

2. Requiring NICS Checks for Gun Dealer Employees

The NICS index also can provide a valuable tool to enhance the safety of gun dealerships. The majority of gun dealerships in New York are run safely and responsibly. Nonetheless, criminals seeking to obtain weapons illegally will continue to fuel an underground market for illegal weapons, some of which may be obtained through thefts of guns from licensed gun dealers.

New York can take the simple step of requiring that employees who handle, possess and sell handguns and rifles at a gun shop have a NICS check in order to ensure that felons and others who are-disqualified from possessing weapons do not have access to these guns. Under the bill, a state-licensed firearm dealer or a FFL would be required to run a NICS background check on a prospective employee. The dealer would be required to complete a certificate of employment that records the favorable result of that check, and to tile a copy of the certificate with the DSP. Failure to comply with the statute, or employing a person who did not pass the NICS check would be a misdemeanor.

This system would help to fill a gap in existing law. Under current law, a person who is disqualified from personally purchasing or possessing these weapons nonetheless may handle, possess and sell them as an employee of a gun dealer. Indeed, Wal-Mart, the nation's largest gun dealer, recently voluntarily agreed to conduct background checks on its employees who handle guns. This bill would remove this loophole for all gun dealers.

3. Reporting Misdemeanor Crimes of Domestic Violence to the NICS index

New York can take another step to enhance its reporting of disqualifying information to the NICS index. Under federal law, it is illegal to sell a firearm to any person who has been convicted of a misdemeanor crime of domestic violence 18 U S.C. § 922(d) (9) Pursuant to 18 U.S.C. § 921(33), a misdemeanor crime of domestic violence includes any state law misdemeanor offense that has as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."

In New York, there is no statute defining a misdemeanor offense that includes both the "force" and "relationship" elements contained in the federal definition. As a result, there is currently no meaningful way for the State to identify particular convictions that meet the federal definition and transmit that information to NICS.

This bill would require the Administrator of the Courts to develop such a mechanism, which could include sending the conviction information directly to NICS or to DCJS. Because there are only a limited number of misdemeanor crimes that contain the required "force" element, and only certain types of relationships that satisfy the federal definition, judges should have no great difficulty identifying reportable convictions at the time of sentencing, so that they could be transmitted for inclusion in NICS.

4. Address Confidentiality

Finally, county and law enforcement officials have raised concerns about Penal Law § 400.00(5), which now provides that names and addresses of license holders are. public records. Making information public about where would-be thieves could find firearms to steal, or which houses they could safely target because no licensee resides at that address, is inconsistent with public safety.

Under this bill, names of licensees would remain public records, but their addresses would not. As a result, and as with other law enforcement records, a licensee's address would only become public if it did not fall within one of the exclusions set forth in Public Officers Law § 87 (2).

BUDGET IMPLICATIONS:

This bill would have no State fiscal impact. Any costs to counties as a result of requiring NICS checks for gun licensees would be offset by their ability to charge a nominal fee to licensees.

EFFECTIVE DATE:

This bill would take effect on November 1, 2013, except that the requirement that gun dealers conduct NICS checks of their employees would not become effective until 60 days after the Superintendent of State Police approved a form for a certificate of employment to be completed and filed by gun dealers.


Text

STATE OF NEW YORK ________________________________________________________________________ 220 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sen. SQUADRON -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the general business law, the penal law and the judici- ary law, in relation to licensing of gun dealer employees, recertif- ication of gun licensees and reporting of misdemeanor crimes of domes- tic violence THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Article 40 and sections 900 and 901 of the general business law, as renumbered by chapter 407 of the laws of 1973, are renumbered article 50 and sections 1001 and 1002 and a new article 40 is added to read as follows: ARTICLE 40 EMPLOYEES OF GUNSMITHS AND DEALERS IN FIREARMS, RIFLES AND SHOTGUNS SECTION 900. DEFINITIONS. 901. EMPLOYEE CERTIFICATION. 902. CERTIFICATE OF EMPLOYMENT. 903. RULES AND REGULATIONS. 904. VIOLATIONS. S 900. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE: 1. "DEALER" MEANS ANY PERSON, FIRM, PARTNERSHIP, CORPORATION OR COMPA- NY LICENSED AS A DEALER IN FIREARMS PURSUANT TO SECTION 400.00 OF THE PENAL LAW OR PURSUANT TO 18 U.S.C. 923. 2. "GUNSMITH" MEANS ANY PERSON, FIRM, PARTNERSHIP, CORPORATION OR COMPANY LICENSED AS A GUNSMITH PURSUANT TO SECTION 400.00 OF THE PENAL LAW. 3. "EMPLOYEE" MEANS A PERSON EMPLOYED BY A DEALER OR GUNSMITH AND WHOSE DUTIES INCLUDE THE HANDLING, SELLING OR OTHERWISE DISPOSING OF FIREARMS, RIFLES OR SHOTGUNS.
4. "FIREARM" HAS THE SAME MEANING AS THAT TERM IS DEFINED IN SUBDIVI- SION THREE OF SECTION 265.00 OF THE PENAL LAW. 5. "RIFLE" HAS THE SAME MEANING AS THAT TERM IS DEFINED IN SUBDIVISION ELEVEN OF SECTION 265.00 OF THE PENAL LAW. 6. "SHOTGUN" HAS THE SAME MEANING AS THAT TERM IS DEFINED IN SUBDIVI- SION TWELVE OF SECTION 265.00 OF THE PENAL LAW. 7. "SUPERINTENDENT" MEANS THE SUPERINTENDENT OF STATE POLICE. S 901. EMPLOYEE CERTIFICATION. NO DEALER SHALL EMPLOY ANY EMPLOYEE UNLESS: 1. SUCH EMPLOYEE IS TWENTY-ONE YEARS OR OLDER OR IS A MEMBER OF THE UNITED STATES ARMED FORCES OR HAS BEEN HONORABLY DISCHARGED THEREFROM; AND 2. THE DEALER EMPLOYING SUCH EMPLOYEE HAS CONDUCTED A NATIONAL INSTANT CRIMINAL BACKGROUND CHECK OF SUCH EMPLOYEE AND IS NOTIFIED THAT THE INFORMATION AVAILABLE IN THE SYSTEM DOES NOT DEMONSTRATE THAT THE POSSESSION OF A FIREARM, RIFLE OR SHOTGUN BY SUCH PERSON WOULD VIOLATE 18 U.S.C. 922(G) OR ANY OTHER APPLICABLE LAW. S 902. CERTIFICATE OF EMPLOYMENT. A DEALER EMPLOYING AN EMPLOYEE SHALL, SUBSEQUENT TO CONDUCTING A NATIONAL INSTANT CRIMINAL BACKGROUND CHECK, COMPLETE A CERTIFICATE OF EMPLOYMENT IN DUPLICATE ON A FORM APPROVED BY THE SUPERINTENDENT. ONE COPY OF THE FORM SHALL BE FILED WITH THE SUPERINTENDENT IMMEDIATELY UPON EMPLOYMENT OF THE EMPLOYEE AND ONE COPY OF SUCH CERTIFICATE SHALL BE RETAINED BY THE DEALER AND AVAILABLE ON PREMISES FOR INSPECTION BY ANY POLICE OFFICER. SUCH CERTIFICATE SHALL REMAIN VALID FOR A PERIOD NOT TO EXCEED THREE YEARS FROM THE DATE FILED WITH THE SUPERINTENDENT PROVIDED THAT DURING THAT PERIOD POSSESSION OF A FIREARM, RIFLE OR SHOTGUN BY THE EMPLOYEE WOULD NOT VIOLATE 18 U.S.C. 922(G) OR ANY OTHER APPLICABLE LAW. SUCH CERTIFICATE SHALL BE RENEWABLE BY THE DEALER. S 903. RULES AND REGULATIONS. THE SUPERINTENDENT MAY PROMULGATE RULES AND REGULATIONS TO EFFECTUATE THE PROVISIONS OF THIS ARTICLE. S 904. VIOLATIONS. ANY DEALER WHO: 1. EMPLOYS AN EMPLOYEE WITHOUT CONDUCTING A NATIONAL INSTANT CRIMINAL BACKGROUND CHECK OF THE EMPLOYEE IN WHICH THE RESULTS INDICATE THAT POSSESSION OF A FIREARM, RIFLE OR SHOTGUN BY THE EMPLOYEE WOULD NOT VIOLATE 18 U.S.C. 922(G) OR ANY OTHER APPLICABLE LAW, OR 2. EMPLOYS AN EMPLOYEE WITHOUT COMPLETING, FILING OR DISPLAYING A CERTIFICATE OF EMPLOYMENT, OR 3. CONTINUES TO EMPLOY AN EMPLOYEE WHEN THE DEALER HAS RECEIVED ACTUAL NOTICE THAT POSSESSION OF A FIREARM, RIFLE OR SHOTGUN BY THE EMPLOYEE WOULD VIOLATE 18 U.S.C. 922(G) OR ANY OTHER APPLICABLE LAW SHALL BE GUILTY OF A MISDEMEANOR. S 2. Section 400.00 of the penal law is amended by adding a new subdi- vision 10-a to read as follows: 10-A. LICENSE: NATIONAL INSTANT CRIMINAL BACKGROUND CHECK RECERTIF- ICATION. ANY LICENSEE APPLYING FOR A LICENSE PURSUANT TO THIS ARTICLE, AND IN THE CITY OF NEW YORK OR IN THE COUNTIES OF WESTCHESTER, NASSAU OR SUFFOLK, UPON RENEWAL OR RECERTIFICATION OF THE LICENSE, SHALL BE THE SUBJECT OF A NATIONAL INSTANT CRIMINAL BACKGROUND CHECK PERFORMED BY THE LICENSING OFFICIAL. NO LICENSE SHALL BE ISSUED, RENEWED OR RECERTIFIED BY THE LICENSING OFFICIAL UNLESS THE RESULTS OF THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK DEMONSTRATES THAT POSSESSION OF A FIREARM BY THE LICENSEE WOULD NOT VIOLATE 18 U.S.C. 922(G) OR ANY OTHER APPLICABLE LAW. ELSEWHERE THAN IN THE CITY OF NEW YORK OR THE COUNTIES OF WESTCHES- TER, NASSAU OR SUFFOLK, A LICENSEE WHO HAS BEEN ISSUED ANY LICENSE PURSUANT TO THIS ARTICLE PRIOR TO THE EFFECTIVE DATE OF THIS SUBDIVI-
SION, SHALL HAVE A NATIONAL INSTANT CRIMINAL BACKGROUND CHECK PERFORMED BY THE LICENSING OFFICIAL PRIOR TO THE FIRST DAY OF DECEMBER, TWO THOU- SAND EIGHTEEN, IN ACCORDANCE WITH A SCHEDULE TO BE CONTAINED IN RULES PROMULGATED BY THE SUPERINTENDENT OF STATE POLICE AND EVERY FIVE YEARS THEREAFTER. NO SUCH LICENSE SHALL REMAIN VALID UNLESS THE RESULTS OF THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK DEMONSTRATES THAT POSSESSION OF A FIREARM BY THE LICENSEE WOULD NOT VIOLATE 18 U.S.C. 922(G) OR ANY OTHER APPLICABLE LAW. A COUNTY OR THE CITY OF NEW YORK MAY, UPON ACTION OF ITS LEGISLATIVE BODY, AUTHORIZE A FEE, NOT TO EXCEED TWENTY DOLLARS, TO BE COLLECTED AND PAID INTO THE COUNTY OR CITY TREASURY, TO PAY FOR ADMINISTRATIVE COSTS INCURRED FOR RECERTIFICATION OF A GUN LICENSE PURSUANT TO THIS SUBDIVISION. THE SUPERINTENDENT OF STATE POLICE MAY PROMULGATE RULES AND REGULATIONS TO EFFECTUATE THE PROVISIONS OF THIS SUBDIVISION. S 3. Subdivision 5 of section 400.00 of the penal law, as amended by chapter 332 of the laws of 1994, is amended to read as follows: 5. Filing of approved applications. The application for any license, if granted, shall be filed by the licensing officer with the clerk of the county of issuance, except that in the city of New York and, in the counties of Nassau and Suffolk, the licensing officer shall designate the place of filing in the appropriate division, bureau or unit of the police department thereof, and in the county of Suffolk the county clerk is hereby authorized to transfer all records or applications relating to firearms to the licensing authority of that county. The name [and address] of any person to whom an application for any license has been granted shall be a public record. Upon application by a licensee who has changed his place of residence such records or applications shall be transferred to the appropriate officer at the licensee's new place of residence. A duplicate copy of such application shall be filed by the licensing officer in the executive department, division of state police, Albany, within ten days after issuance of the license. Nothing in this subdivision shall be construed to change the expiration date or term of such licenses if otherwise provided for in law. S 4. Subdivision 2 of section 212 of the judiciary law is amended by adding a new paragraph (s) to read as follows: (S) ADOPT RULES TO REQUIRE TRANSMISSION TO THE CRIMINAL JUSTICE INFOR- MATION SERVICES DIVISION OF THE FEDERAL BUREAU OF INVESTIGATION OR TO THE DIVISION OF CRIMINAL JUSTICE SERVICES, OF THE NAME AND OTHER IDENTI- FYING INFORMATION OF EACH PERSON CONVICTED OF A MISDEMEANOR IN THE STATE WHICH CONSTITUTES A "MISDEMEANOR CRIME OF DOMESTIC VIOLENCE" AS DEFINED IN 18 USC 921(A)(33)(A). S 5. This act shall take effect November 1, 2013; provided, however, that section one of this act shall not take effect until the sixtieth day after it shall have become a law.

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