Section 17-701
§ 17-701 Short title. This subchapter shall be known and may be cited
as the "Tobacco Product Regulation Act."
Section 17-702
§ 17-702 Definitions. For purposes of this subchapter, the following
terms shall be defined as follows:
a. "Affiliated company" means any business entity which is the holder
of a right to place or display advertisements in or on a unit of
advertising space and which has a relationship with a holder of a right
to place or display advertisements in or on another unit of advertising
space; such relationship shall be an identity of all principal owners or
all directors; provided, however, that only entities which are holders
of a right to place or display advertisements on the same type of units
of advertising space shall be considered affiliated companies for
purposes of this subchapter.
b. "Authorizing agency" means the agency or other unit of local
government of the city of New York which is (i) acting on behalf of the
city with respect to a written agreement between the city and a private
party which allows the placement or display of advertisements in or on a
unit of advertising space; (ii) any agency designated by the mayor as
having responsibility for a unit of advertising space that is the
subject of a written agreement with the city which allows the placement
or display of advertisements in or on such unit; or (iii) the issuer of
a license or permit that expressly grants the right to place or display
advertisements in or on a unit of advertising space. In the event that
there is no authorizing agency as defined by this subdivision for a unit
of advertising space, the authorizing agency for such unit shall be the
agency with the primary expertise in the subject area covered by the
written agreement with the city which allows the placement or display of
advertisements in or on such unit.
c. "Cigarette license" means the license issued pursuant to section
11-1303 or 20-202 of the code.
d. "City of New York" or "city" means the city of New York or any of
its agencies or other unit of local government.
e. "Employee" means any person who provides services for the payment
of direct or indirect monetary wages or profit, or any person who
volunteers his or her services without monetary compensation.
f. "For-hire vehicle" means "for-hire vehicle" as defined in section
19-502 of the code.
g. "For-hire vehicle base" means a place of business from which
for-hire vehicles are dispatched.
h. "Instrumentality of public transportation" means buses operated
pursuant to a franchise or consent issued by or from the city of New
York, ferries and ferry terminals owned or operated by the city of New
York, trams and their appurtenances, bus stop shelters and licensed
vehicles as defined in section 19-502 of the code.
i. "Person" means any natural person, partnership, corporation,
government agency, association or other legal entity.
j. "Public health message" means words, pictures, photographs,
symbols, graphics or visual images of any kind, or any combination
thereof, the primary purpose of which is to communicate the health risks
of tobacco product use or the health benefits of not using tobacco
products.
k. "Retail dealer" means "retail dealer" as defined in section 11-1301
of the code, and any employee or other agent of such retail dealer.
l. "School premises" means the buildings, grounds or facilities, or
any portion thereof, owned or occupied by public or private institutions
for the primary purpose of providing educational instruction to students
at or below the twelfth grade level.
m. "Special event" means an event (i) for which a permit has been
issued by the city of New York; (ii) which has a duration of no longer
than seven days; and (iii) for which an agreement has been entered into
with the city that provides for the placement or display of signage
intended to discourage the use of tobacco products.
n. "Taxicab" means "taxicab" as defined in section 19-502 of the code.
o. "Taxicab fleet" means a corporate entity organized for the
ownership or operation of twenty-five or more taxicabs, which taxicabs
are dispatched from a single location serving as both garage and office
of record, which location has been approved by the taxi and limousine
commission as adequate for the storage, maintenance, repair and dispatch
of the fleet taxicabs, and which location has a dispatcher on the
premises at least eighteen hours every day who is responsible for
assigning drivers to fleet taxicabs.
p. "Taxicab minifleet" means a corporation licensed by the taxi and
limousine commission to own and operate two or more taxicabs.
q. "Tobacco advertisement" means words, pictures, photographs,
symbols, graphics or visual images of any kind, or any combination
thereof, which bear a health warning required by federal statute, the
purpose or effect of which is to identify a brand of a tobacco product,
a trademark of a tobacco product or a trade name associated exclusively
with a tobacco product, or to promote the use or sale of a tobacco
product.
r. "Tobacco product" means any product which contains tobacco that is
intended for human consumption, including any component, part, or
accessory of such product. Tobacco product shall include, but not be
limited to, any cigar, little cigar, chewing tobacco, pipe tobacco,
roll-your-own tobacco, snus, bidi, snuff, tobacco-containing shisha, or
dissolvable tobacco product. Tobacco product shall not include
cigarettes or any product that has been approved by the United States
food and drug administration for sale as a tobacco use cessation product
or for other medical purposes and that is being marketed and sold solely
for such purposes.
s. "Trademark" means any word, name, symbol, logo, emblem or device,
or any combination thereof, used by a person to identify and distinguish
his or her goods from those manufactured or sold by others and to
indicate the source of the goods, even if that source in unknown.
t. "Trade name" means any name used by a person to identify his or her
business or vocation.
u. "Unit of advertising space" means any real property, space,
facility or instrumentality of public transportation, or any portion
thereof, (i) owned or operated by, or leased from or to the city, or
which is located or operates on real property owned or operated by or
leased from or to the city, and which is the subject of the same
contract, lease, rental agreement, franchise, revocable consent,
concession or other similar written agreement with the city which allows
the placement or display of advertisements, but not including any real
property, space or facility leased from the city for a term of thirty
years or more during the entire term of the lease or any real property,
space or facility leased from or to the industrial development agency;
or (ii) with respect to which a license or permit has been issued by the
city that expressly grants the right to place or display advertisements,
but not including licenses or permits issued pursuant to the building
code.
v. "Wholesale dealer" means "wholesale dealer" as defined in section
11-1301 of the code, and any employee or other agent of such wholesale
dealer.
w. "Cigarette" means any roll for smoking made wholly or in part of
tobacco or any other substance, irrespective of size or shape and
whether or not such tobacco or substance is flavored, adulterated or
mixed with any other ingredient, the wrapper or cover of which is made
of paper or any other substance or material but is not made in whole or
in part of tobacco.
x. "Cigar" means any roll of tobacco for smoking that is wrapped in
leaf tobacco or in any substance containing tobacco, with or without a
tip or mouthpiece. Cigar does not include a little cigar as defined in
this section.
y. "Little cigar" means any roll of tobacco for smoking that is
wrapped in leaf tobacco or in any substance containing tobacco and that
weighs no more than four pounds per thousand or has a cellulose acetate
or other integrated filter.
z. "Shisha" means any product made primarily of tobacco or other leaf,
or any combination thereof, smoked or intended to be smoked in a hookah
or water pipe.
aa. "Herbal cigarette" means a product that is meant to be smoked like
a cigarette but is composed of one or more herbs and does not contain
tobacco.
* bb. "Electronic cigarette" means a battery-operated device that
contains nicotine and delivers vapor for inhalation. Electronic
cigarette shall include any refill, cartridge, and any other component
of an electronic cigarette.
* NB Effective May 18, 2014
Section 17-703
§ 17-703 License Required. It shall be unlawful for a person to engage
in any act as a wholesale dealer without a license as prescribed in
section 11-1303 of the code, or engage in any act as a retail dealer
without a license as prescribed in section 20-202 of the code.
Section 17-703.1
* § 17-703.1 Sign required. A retail dealer shall post a sign in a
conspicuous place at the point of sale of cigarettes or at the place
where cigarettes are displayed or offered for sale stating that
cigarettes sold in the city of New York must be in packages bearing
valid tax stamps.
* NB Effective March 19, 2014
Section 17-703.2
§ 17-703.2 Requirements for retail dealers concerning cigarette tax.
a. Any package containing cigarettes sold or offered for sale by a
retail dealer shall bear a valid tax stamp as required by section
11-1302 of the code. Except as provided in subdivision b of section
11-1305 of the code, any cigarettes possessed or transported in the city
by a retail dealer shall be in a package bearing a valid tax stamp.
b. No retail dealer shall engage in a sale or purchase prohibited by
subdivision e of section 11-1303 or section 20-205 of the code.
c. No retail dealer shall sell, offer for sale, possess or transport
any affixed or unaffixed false, altered or counterfeit cigarette tax
stamp, imprint or impression.
d. No retail dealer shall engage in any act to hide or conceal:
(1) any cigarettes in unstamped or unlawfully stamped packages;
(2) any affixed or unaffixed false, altered or counterfeit cigarette
tax stamp, imprint or impression; or
(3) any cigarettes that are outside of a package in violation of
subdivision a of this section.
Section 17-704
* § 17-704 Out-of-package sales prohibited. All tobacco products sold
or offered for sale by a retail dealer shall be sold or offered for sale
in the package, box, carton or other container provided by the
manufacturer, importer or packager which bears a health warning required
by federal statute.
* NB Effective until March 19, 2014
* § 17-704 Out-of-package sales prohibited. a. All cigarettes and
tobacco products sold or offered for sale by a retail dealer shall be
sold or offered for sale in the package, box, carton or other container
provided by the manufacturer, importer or packager which bears a health
warning required by federal statute.
b. No retail dealer shall sell or offer for sale a cigar unless the
cigar is sold in a package of at least four cigars, provided that this
subdivision shall not apply to the sale or distribution of an individual
cigar whose listed price, as defined in section 17-176.1 of this code,
is greater than three dollars.
c. No retail dealer shall sell or offer for sale a little cigar unless
the little cigar is sold in a package of at least twenty little cigars.
* NB Effective March 19, 2014
Section 17-705
* § 17-705 Age restriction on handling. It shall be unlawful for a
retail dealer to permit an employee or other agent of the retail dealer
to sell, dispense or otherwise handle a tobacco product unless such
employee or other agent is (1) at least eighteen years of age; or (2)
under the direct supervision of the retail dealer or an employee or
other agent of the retail dealer who is at least eighteen years of age,
and who is present on the premises.
* NB Effective until March 19, 2014
* § 17-705 Age restriction on handling. It shall be unlawful for a
retail dealer to permit an employee or other agent of the retail dealer
to sell, dispense or otherwise handle cigarettes or a tobacco product
unless such employee or other agent is (1) at least eighteen years of
age; or (2) under the direct supervision of the retail dealer or an
employee or other agent of the retail dealer who is at least eighteen
years of age, and who is present on the premises.
* NB Effective March 19, 2014
Section 17-706
* § 17-706 Sale of tobacco products to minors prohibited. Any person
operating a place of business wherein tobacco products are sold or
offered for sale must be licensed as required by section 17-703 of this
code and is prohibited from selling such products to individuals under
eighteen years of age, and shall post in a conspicuous place a sign upon
which there shall be imprinted the following statement, "SALE OF
CIGARETTES, CIGARS, CHEWING TOBACCO, POWDERED TOBACCO, OR OTHER TOBACCO
PRODUCTS, ROLLING PAPER OR PIPES, TO PERSONS UNDER EIGHTEEN YEARS OF AGE
IS PROHIBITED BY LAW." Such sign shall be printed on a white card in red
letters at least one-half inch in height. Sale of tobacco products in
such places, other than by a vending machine, shall be made only to an
individual who demonstrates, through a driver's license or other
photographic identification card issued by a government entity or
educational institution, that the individual is at least eighteen years
of age. Such identification need not be required of any individual who
reasonably appears to be at least twenty-five years of age, provided,
however, that such appearance shall not constitute a defense in any
proceeding alleging the sale of a tobacco product to an individual under
eighteen years of age.
* NB Effective until May 18, 2014
* § 17-706 Sale of cigarettes, tobacco products, or electronic
cigarettes to minors and young adults prohibited.
a. Any person operating a place of business wherein cigarettes,
tobacco products, or electronic cigarettes are sold or offered for sale
is prohibited from selling such cigarettes, tobacco products, or
electronic cigarettes to individuals under twenty-one years of age Sale
of cigarettes, tobacco products, or electronic cigarettes in such places
shall be made only to an individual who demonstrates, through a driver's
license or other photographic identification card issued by a government
entity or educational institution, that the individual is at least
twenty-one years of age. Such identification need not be required of any
individual who reasonably appears to be at least thirty years of age,
provided, however, that such appearance shall not constitute a defense
in any proceeding alleging the sale of cigarettes, tobacco products, or
electronic cigarettes to an individual under twenty-one years of age.
b. Any person operating a place of business wherein non-tobacco
shisha, pipes, or rolling papers are sold or offered for sale is
prohibited from selling such non-tobacco shisha, pipes, or rolling
papers to individuals under eighteen years of age. Sale of non-tobacco
shisha, pipes, or rolling papers in such places shall be made only to an
individual who demonstrates, through a driver's license or other
photographic identification card issued by a government entity or
educational institution, that the individual is at least eighteen years
of age. Such identification need not be required of any individual who
reasonably appears to be at least twenty-five years of age, provided,
however, that such appearance shall not constitute a defense in any
proceeding alleging the sale of non-tobacco shisha, pipes, or rolling
papers to an individual under eighteen years of age.
c. Any person operating a place of business wherein cigarettes,
tobacco products, electronic cigarettes, herbal cigarettes, non-tobacco
shisha, pipes, or rolling papers are sold or offered for sale shall post
in a conspicuous place a sign, in accordance with the rules of the
department, advising persons about the minimum age requirements for the
purchase of such items.
* NB Effective May 18, 2014
Section 17-708
§ 17-708 Use of tobacco products on school premises prohibited. It
shall be unlawful for any person to use a tobacco product, including
chewing tobacco, on school premises at any time.
Section 17-709
§ 17-709 Enforcement. The department of health and mental hygiene and
the department of finance shall enforce the provisions of this
subchapter. The department of consumer affairs shall enforce sections
17-703, 17-703.1, 17-704, 17-705 and 17-706 of this subchapter. In
addition, designated enforcement employees of any authorizing agency
shall have the power to enforce the provisions of this subchapter.
Section 17-709.1
§ 17-709.1 Rules. The commissioner of the department and the
commissioner of finance shall promulgate any rules as may be necessary
for the purposes of carrying out the provisions of this subchapter.
Section 17-710
§ 17-710 Violations and penalties. a. Civil penalties and license
revocation for a person found to be in violation of the provisions of
this subchapter shall be as follows:
(1) Any person found to be in violation of section 17-703 shall be
liable for a civil penalty of not more than five thousand dollars for
the first violation, and not more than five thousand dollars for each
additional violation found on that day; and not more than ten thousand
dollars for the second violation and each subsequent violation by that
person.
(2) Any person found to be in violation of section 17-703.1 shall be
liable for a civil penalty of not more than five hundred dollars in any
single day.
(3) In addition to any penalty that may be imposed pursuant to
subdivision b of section 11-1317 of the code, any person found to be in
violation of section 17-703.2 of the code shall be liable for a civil
penalty of not more than two thousand dollars for the first violation,
and not more than two thousand dollars for each additional violation
found on that day, and not more than five thousand dollars for the
second violation and each subsequent violation at the same place of
business within a three-year period.
(4) Any person found to be in violation of section 17-704, 17-705 or
subdivision a or b of section 17-706 shall be liable for a civil penalty
of not more than one thousand dollars for the first violation, and not
more than one thousand dollars for each additional violation found on
that day; and not more than two thousand dollars for the second
violation and each subsequent violation at the same place of business
within a three-year period. Any person found to be in violation of
subdivision c of section 17-706 shall be liable for a civil penalty of
not more than five hundred dollars in any single day.
(5) In addition, for a second violation of any of sections 17-703,
17-703.2, 17-704, 17-705 or subdivision a or b of section 17-706
occurring on a different day and any subsequent violations occurring on
different days at the same place of business within a three-year period,
any person who engages in business as a retail dealer shall be subject
to the mandatory revocation of his or her cigarette license for such
place of business. Any violation of section 17-703, 17-703.2, 17-704,
17-705 or subdivision a or b of section 17-706 by any license holder at
a place of business shall be included in determining the number of
violations by such license holder and by any subsequent license holder
at the same place of business unless the subsequent license holder
provides the commissioner of the department that has commenced the
proceeding to recover a civil penalty pursuant to subdivision b of this
section with adequate documentation demonstrating that the subsequent
license holder acquired the premises or business through an arm's length
transaction as defined in subdivision e of this section and that the
sale or lease was not conducted, in whole or in part, for the purpose of
permitting the original licensee to avoid the effect of violations on
the premises. A cigarette license shall be revoked at the same hearing
at which a retail dealer is found liable for a second violation or
subsequent violations at the same place of business within a three-year
period.
(6) Any person who violates section 17-708 shall be liable for a civil
penalty of not more than fifty dollars for each violation.
b. A proceeding to recover any civil penalty authorized pursuant to
the provisions of subdivision a of this section for a violation of
section 17-703, 17-703.1, 17-703.2, 17-704, 17-705 or 17-706 of this
subchapter shall be commenced by the service of a notice of violation
which shall be returnable to the health tribunal at the office of
administrative trials and hearings where the department of health and
mental hygiene issues such notice, the adjudication division of the
department of consumer affairs where that department or a designated
employee of any authorizing agency issues such notice, or an
adjudication division of the department of finance or the administrative
tribunal selected by the commissioner of finance where the department of
finance issues such notice. Such notice shall contain a statement that
any hearing for a second violation or subsequent violation of any of
such sections at the same place of business within a three-year period
shall also constitute a hearing for the revocation of a retail dealer's
cigarette license where the retail dealer is found to be in violation of
any such sections. The department of health and mental hygiene, the
department of consumer affairs and the department of finance shall
notify each other within thirty days of a final determination that a
retail dealer has been found to be in violation of section 17-703,
17-703.1, 17-703.2, 17-704, 17-705 or 17-706 of this subchapter. A
proceeding to recover any civil penalty authorized pursuant to the
provisions of subdivision a of this section for a violation of section
17-708 shall be returnable to the health tribunal at the office of
administrative trials and hearings. Such tribunal shall have the power
to impose the civil penalties prescribed by subdivision a of this
section. The adjudication division of the department of consumer
affairs, the health tribunal at the office of administrative trials and
hearings and an adjudication division of the department of finance or
the administrative tribunal selected by the commissioner of finance
shall have the power to impose the civil penalties prescribed by
subdivision a of this section for a violation of section 17-703,
17-703.1, 17-703.2, 17-704, 17-705 or 17-706 of this subchapter.
c. The penalties provided by subdivision a of this section shall be in
addition to any other penalty imposed by any other provision of law or
rule promulgated thereunder.
d. Whenever any person has engaged in any acts or practices which
constitute a violation of any provision of this subchapter or of any
rule promulgated thereunder, the city may make application to a court of
competent jurisdiction for an order enjoining such acts or practices and
for an order granting a temporary or permanent injunction, restraining
order or other order enjoining such acts or practices.
e. For purposes of this section, "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 licensee to avoid the effect of
violations on the 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 licensee to avoid the effect of violations on the premises:
(1) a sale between relatives; or
(2) a sale between related companies or partners in a business; or
(3) 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 licensee to avoid the effect of
violations on the premises, such as a sale or lease entered into while
there are violations pending against the original licensee that could
result in revocation or suspension of the license.
f. Notwithstanding the provisions of subdivision a of this section,
the mandatory revocation of a license for a second offense shall be
waived if, upon the submission of satisfactory proof, the commissioner
determines that the person or persons who committed the violations which
are the basis for the mandatory revocation acted against the licensee's
will in committing such violations, the licensee utilized extensive
precautionary measures to prevent violations of the provisions of
sections 17-704, 17-705 and 17-706 of this code, and the licensee has
terminated any financial or employment relationship with each person who
committed the violations which are the basis of the mandatory revocation
of its license or has taken other significant disciplinary action
against such persons. The commissioner shall not determine that a
licensee utilized extensive precautionary measures to prevent violations
of the provisions of sections 17-704, 17-705 and 17-706 of this code
unless the licensee submits satisfactory proof demonstrating that the
licensee had, prior to the second violation which is the basis for the
mandatory revocation of its license, done the following:
(1) implemented a clear policy requiring all persons working in the
place of business to strictly comply with the provisions of sections
17-704, 17-705 and 17-706 of this code and permitting persons working in
the place of business to complete a tobacco product sales transaction
only after establishing the age of a prospective purchaser of tobacco
products through identification that has been verified for authenticity
or through photographic identification as required by section 17-706 of
this code; and
(2) trained all persons working in the place of business to comply
with any such policy before they are allowed to sell tobacco products to
the public; and
(3) monitored the performance of persons working in the place of
business to ensure that they adhere to such policy, or, in accordance
with rules promulgated by the commissioner, conducted periodic
retraining of persons working in the place of business.
g. Any retail dealer who fails to pay (1) any civil penalty imposed
under chapter thirteen of title eleven of the code for the violation of
any provision thereunder, or (2) any civil penalty imposed under this
chapter for any violation thereof or under section 17-176.1 or section
17-177 of this title for any violation of such sections, shall be
subject to suspension of his or her retail dealer license for the place
of business where the violation occurred until such retail dealer pays
all such civil penalties. Such retail dealer license shall not be
renewed until such retail dealer pays all such civil penalties. A
proceeding to suspend a retail dealer license pursuant to this
subdivision may be commenced by the department to which payment of the
penalty is due, in the same manner as a proceeding pursuant to
subdivision b of this section to recover a civil penalty. The
adjudication division of the department of consumer affairs, the health
tribunal at the office of administrative trials and hearings and an
adjudication division of the department of finance or the administrative
tribunal selected by the commissioner of finance shall have the power to
suspend a retail dealer's license pursuant to this subdivision.
Section 17-711
§ 17-711 Report. Not later than twelve months after the effective date
of the local law that added this section and each year thereafter, the
department shall submit a report to the mayor and the city council
concerning the administration and enforcement of this subchapter.
Section 17-712
§ 17-712 Construction. Nothing contained in this subchapter shall be
construed to preclude the city of New York from prohibiting the
placement or display of tobacco advertisements in or on units of
advertising space.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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