Relates to penalties for the illegal shipment of cigarettes and the authority of state and local authorities to bring actions to recover civil fines for such violations.
TITLE OF BILL: An act to amend the public health law, in relation to the shipment of cigarettes
PURPOSE OR GENERAL IDEA OF BILL: To strengthen enforcement of the law prohibiting the shipment of cigarettes except under certain circumstances.
SUMMARY OF SPECIFIC PROVISIONS:
Section one of the bill amends subdivision 1 of Public Health Law 1399-11, which currently allows shipping of cigarettes to government employees acting in accordance with their official duties. The added text provides that it is permissible to ship cigarettes to a government employee only when such an individual "presents himself or herself as" an employee acting in accordance with official duties; amends subdivision 5 of section 1399-11 to provide an alternative to the existing civil penalty of $5000 per violation. The alternative civil penalty would be $100 per pack.
Section two adds a new subdivision 6 to section 1399-11 to provide that the Attorney General may bring an action to recover civil penalties and to provide that the Corporation Counsel of any political subdivision that imposes a tax on cigarettes may bring an action to recover civil penalties for violations within his or her jurisdiction. Any civil penalties obtained by these actions will be retained by the state or political subdivision bringing such action and no person shall be required to pay civil penalties to both the state and a political subdivision for the same violation.
JUSTIFICATION: New York State's cigarette shipment law, which prohibits the transport and delivery of cigarettes by sellers and common carriers to consumers, is an effective tool to ensure that minors do not have access to purchase cigarettes. Prior to the implementation of this law, studies found that youth had no trouble purchasing cigarettes without proof of age via the Internet. Between 2000 and 2004, the rate of smoking among high school students in New York State declined from 27.1% to 10.5%, due to many measures, including tax increases and clean indoor air laws, as well as this statute.
Pursuant to the statute's current text, cigarettes can be legally shipped to government employees acting in accordance with their official duties. Therefore, it is possible that a person who violates the law by shipping cigarettes to someone performing a "sting" operation could assert as a defense that the government employee buying the cigarettes was acting in accordance with his or her official duties. The proposed amendment to Public Health Law section 1399-11 (1) addresses this problem.
The addition of a new subdivision 6 to Public Health Law section 1399-11 provides for more effective enforcement of the statute by permitting both the Attorney General and the Corporation Counsel of any political subdivision that imposes a tax on cigarettes to bring actions to recover civil penalties for statutory violations.
PRIOR LEGISLATIVE HISTORY: 2011-12- A.1589- passed Assembly/S.2170Referred to Health 2009-10- A.1833- passed Assembly/S.2324- Referred to Health 2008: A.7326- Passed Assembly/S.2001 - Referred to Health 2006: A.1128-B - Passed Assembly 2005: A.1128 - Codes 2004: A.11174 Codes
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 5215--A 2013-2014 Regular Sessions IN SENATE May 14, 2013 ___________Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 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 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 AND PRESENTS HIMSELF OR HERSELF AS SUCH, 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. 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 secondEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01177-11-3 S. 5215--A 2
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 PENALTIES 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 SUBDIVI- SION 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 PENALTIES OBTAINED IN ANY SUCH ACTION SHALL BE RETAINED BY THE STATE OR POLITICAL SUBDIVISION 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.