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.
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.  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 of this chapter   1 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.