(N.Y.C. Admin. Code §§17-703, 20-202 & 20-561)
It is against the law for any person to sell tobacco products (as of February 24, 2018) and e-cigarettes (as of August 23, 2018) as a retail dealer without first obtaining a license for every place of business wherein that person sells tobacco products and/or e-cigarettes. Tobacco products include cigars, chewing tobacco, pipe tobacco, roll-your-own tobacco, snus, bidi, snuff, shisha, dissolvable tobacco, or cigarettes. It is also unlawful for persons to permit premises under their control to sell tobacco products (as of February 24, 2018) and/or e-cigarettes (as of August 23, 2018) without a license.
To obtain a license, a person must file an application with the Commissioner of Finance for each place of business where he or she wishes to sell tobacco products and/or e-cigarettes in the city. For each place of business, a fee of $110 for a tobacco retail dealer license and $200 for an e-cigarette retail dealer license must be paid every two years. Tobacco retail dealer licenses with an even number expire on December 31 of even-numbered years and odd-numbered licenses expire on December 31 of odd-numbered years. Electronic cigarette retail dealer licenses expire on November 30 of the even-numbered years and odd-numbered licenses expire on November 30 of odd-numbered years. E-cigarette and tobacco retail dealer licenses may not be assigned to anyone else by the licensee, and are only valid for the persons and places of businesses for which they are issued. Licenses must be clearly displayed at each retail location.
Caps on E-Cigarette Retail Dealer Licenses
In initial 90 day application period, Commissioner shall only accept applications from persons who had already been selling e-cigarettes as of the date of the law’s enactment. After 120 days, the Commissioner must establish a cap for e-cigarette licenses for each community district in the city. The initial community district e-cigarette retail dealer cap shall be 50 percent of the total number of licenses issued to e-cigarette dealers in the community as determined by the department. Following this, the department shall evaluate whether to adjust the cap every two years and any time community district boundaries change.
Revocation and Suspension of a Tobacco or E-Cigarette Retail Dealer License
Revocation: A retailer’s license must be revoked for a second violation within a two year period for:
- Selling or offering for sale tobacco products not contained in a package which bears a health warning required by federal law (§17-704);
- Allowing an employee who is under 18 to handle tobacco products unless he or she is under the supervision of someone who is 18 or older (§17-705); or
- Selling tobacco products to an individual under 21 or failing to post a sign that such sales are prohibited (§17-706)
Suspension: A retailer’s license to sell tobacco products and/or e-cigarettes must be suspended for up to one year for a third violation of selling flavored tobacco products. (§§17-715 to 716)
Determining the Number of Violations: In determining the number of violations for a license holder, any violations occurring at the particular place of business in the past two years will be included, even though committed by a different license holder, unless the present license holder obtained the premises through an “arm’s length transaction.”
- “Arm’s Length Transaction”: The following are presumed not to be “arm’s length transactions” (that is, they are presumed to be for the primary purpose of avoiding the effect of a violation), unless proven otherwise: (1) a sale between relatives; (2) a sale between related companies or partner’s in a business; or (3) any other sale or lease which is entered into for the primary purpose of avoiding the effect of violations on the premises or a revocation of a license.
Enforcement and Reporting Violations: Violations are enforced by the Department of Health and Mental Hygiene and the Department of Consumer Affairs. Violations may be reported to these departments. (§17-709)
Re-Issuance of a Retail Dealer License
Where a license for a place of business has been revoked, the Commissioner may refuse to issue a license for that place of business for a period of 2 years, unless the applicant demonstrates that it acquired the premises or business through an “arm’s length transaction.”