STATE OF NEW YORK ________________________________________________________________________
837--D
2021-2022 Regular Sessions
IN ASSEMBLY
(Prefiled)
January 6, 2021 ___________
Introduced by M. of A. PAULIN, RAMOS, ENGLEBRIGHT, L. ROSENTHAL, ABINAN- TI, COLTON, DINOWITZ, STECK, SEAWRIGHT, FAHY, CYMBROWITZ, ZEBROWSKI, CARROLL, BICHOTTE HERMELYN, GALEF, SIMON -- Multi-Sponsored by -- M. of A. GOTTFRIED, MAGNARELLI -- read once and referred to the Commit- tee on Economic Development -- recommitted to the Committee on Econom- ic Development in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amend- ments, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the general business law and the penal law, in relation to preventing the unlawful sale of firearms, rifles, and shotguns to individuals with a criminal record
The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:
1 Section 1. The general business law is amended by adding a new article 2 39-BB to read as follows: 3 ARTICLE 39-BB 4 PREVENTING THE UNLAWFUL SALE OF FIREARMS, 5 RIFLES, AND SHOTGUNS TO INDIVIDUALS WITH A CRIMINAL RECORD 6 Section 875-a. Definitions. 7 875-b. Security. 8 875-c. Access to firearms, rifles, and shotguns. 9 875-d. Location of firearm, rifle, and shotgun sales. 10 875-e. Employee training. 11 875-f. Maintenance of records. 12 875-g. Internal compliance and certification.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01985-11-2
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1 875-h. Rules and regulations. 2 875-i. Violations. 3 § 875-a. Definitions. For the purposes of this article: 4 1. "Dealer" means a gunsmith or dealers in firearms licensed pursuant 5 to section 400.00 of the penal law. 6 2. "Dispose of" or "disposition of" means to give, give away, lease, 7 lend, keep for sale, offer, offer for sale, sell, or transfer. 8 3. "Firearm" has the same meaning as that term is defined in subdivi- 9 sion three of section 265.00 of the penal law. 10 4. "Rifle" has the same meaning as that term is defined in subdivision 11 eleven of section 265.00 of the penal law. 12 5. "Shotgun" has the same meaning as that term is defined in subdivi- 13 sion twelve of section 265.00 of the penal law. 14 6. "Straw purchase" means the purchase, or attempt to purchase, by a 15 person of a firearm, rifle, shotgun or ammunition for, on behalf of, or 16 for the use of another person known or unknown. The term shall not 17 include a bona fide gift to a person who is not prohibited from possess- 18 ing or receiving such a firearm. For purposes of the preceding sentence, 19 a gift to a person is not a bona fide gift if the person has offered or 20 given the purchaser a service or thing of value to acquire the firearm 21 for the person. 22 7. "Superintendent" means the superintendent of state police. 23 § 875-b. Security. 1. Every dealer shall implement a security plan 24 for securing firearms, rifles and shotguns, including firearms, rifles 25 and shotguns in shipment. The plan must satisfy at least the following 26 requirements: 27 (a) display cases shall be locked at all times except when removing a 28 single firearm, rifle or shotgun to show a customer, and customers shall 29 handle firearms, rifles or shotguns only under the direct supervision of 30 an employee; 31 (b) all firearms, rifles and shotguns shall be secured, other than 32 during business hours, in a locked fireproof safe or vault in the 33 licensee's business premises or in a similar secured and locked area; 34 and 35 (c) ammunition shall be stored separately from firearms, rifles and 36 shotguns and out of reach of customers. 37 2. (a) The permitted business location shall be secured by an alarm 38 system that is installed and maintained by an alarm company operator 39 properly licensed pursuant to state law. The alarm system must be moni- 40 tored by a central station listed by Underwriters Laboratories, Inc., 41 and covered by an active Underwriters Laboratories, Inc. alarm system 42 certificate with a #3 extent of protection. The permitted business 43 shall be equipped with a video recording device at each point of sale 44 and entrance and exits to the premises, which shall be recorded from 45 both the indoor and outdoor vantage point and shall maintain such 46 recordings for a period of not less than two years. 47 (b) Underwriters Laboratories, Inc. uses the term "extent of 48 protection" to refer to the amount of alarm protection installed to 49 protect a particular area, room or container. Systems with a #3 extent 50 of protection include complete protection for all accessible openings, 51 and partial motion and sound detection at certain other areas of the 52 premises. More information may be found in: Central Station Alarm Asso- 53 ciation, A Practical Guide to Central Station Burglar Alarm Systems (3rd 54 ed. 2005). 55 § 875-c. Access to firearms, rifles, and shotguns. Every retail dealer 56 shall exclude all persons under eighteen years of age from those
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1 portions of its premises where firearms, rifles, shotguns, or ammunition 2 are stocked or sold, unless such person is accompanied by a parent or 3 guardian. 4 § 875-d. Location of firearm, rifle, and shotgun sales. Every dealer 5 shall sell or otherwise dispose of firearms, rifles, and shotguns only 6 at the location listed on the dealer's federal firearms license or at 7 gun shows. 8 § 875-e. Employee training. 1. Every dealer shall annually provide 9 the training outlined by the superintendent pursuant to subdivision two 10 of this section to all new and current employees. 11 2. The superintendent shall develop and make available to each 12 licensed dealer, a training course in the conduct of firearm, rifle, and 13 shotgun transfers including at a minimum the following: 14 (a) Federal and state laws governing firearm, rifle, and shotgun 15 transfers. 16 (b) How to recognize, identify, respond, and report straw purchases, 17 illegal purchases, and fraudulent activity. 18 (c) How to recognize, identify, respond, and report an individual who 19 intends to use a firearm, rifle, or shotgun for unlawful purposes, 20 including self-harm. 21 (d) How to prevent, respond, and report theft or burglary of firearms, 22 rifles, shotguns, and ammunition. 23 (e) How to educate customers on rules of gun safety, including but not 24 limited to the safe handling and storage of firearms, rifles, and shot- 25 guns. 26 (f) Such other topics the superintendent deems necessary and appropri- 27 ate. 28 3. No employee or agent of any retail dealer shall participate in the 29 sale or disposition of firearms, rifles, or shotguns unless such person 30 is at least twenty-one years of age and has first received the training 31 required by this section. The superintendent shall promulgate regu- 32 lations setting forth minimum requirements for the maintenance of 33 records of such training. 34 § 875-f. Maintenance of records. Every dealer shall establish and 35 maintain a book, or if the dealer should choose, electronic-based record 36 of such purchase, sale, inventory, and other records at the dealer's 37 place of business in such form and for such period as the superintendent 38 shall require, and shall submit a copy of such records to the New York 39 state police every April and October. Such records shall at a minimum 40 include the following: 41 1. the make, model, caliber or gauge, manufacturer's name, and serial 42 number of all rifles and shotguns that are acquired or disposed of not 43 later than one business day after their acquisition or disposition. 44 Monthly backups of these records kept in a book shall be maintained in a 45 secure container designed to prevent loss by fire, theft, or flood. If 46 the dealer chooses to maintain an electronic-based record system, those 47 records must be backed up on an external server or over the internet at 48 the close of each business day; 49 2. all rifles and shotguns acquired but not yet disposed of must be 50 accounted for through an inventory check prepared once each month and 51 maintained in a secure location; 52 3. rifle and shotgun disposition information, including the serial 53 numbers of rifles and shotguns sold, dates of sale, and identity of 54 purchasers, shall be maintained and made available at any time to 55 government law enforcement agencies and to the manufacturer of the weap- 56 on or its designee; and
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1 4. every dealer shall maintain records of criminal rifle and shotgun 2 traces initiated by the federal bureau of alcohol, tobacco, firearms and 3 explosives ("ATF"). All ATF Form 4473 transaction records shall be 4 retained on the dealer's business premises in a secure container 5 designed to prevent loss by fire, theft, or flood. 6 § 875-g. Internal compliance and certification. 1. Every dealer shall: 7 (a) implement and maintain sufficient internal compliance procedures 8 to ensure compliance with the requirements of this article; and 9 (b) annually certify to the superintendent that such dealer has 10 complied with all of the requirements of this article. The superinten- 11 dent shall by regulation determine the form and content of such annual 12 certification. 13 2. The superintendent shall promulgate regulations establishing peri- 14 odic inspections of not less than one inspection of every dealer every 15 three years, during regular and usual business hours, by the division of 16 state police of the premises of every dealer to determine compliance by 17 such dealer with the requirements of this article. Every dealer shall 18 provide the division of state police with full access to such dealer's 19 premises for such inspections. 20 § 875-h. Rules and regulations. The superintendent may promulgate such 21 additional rules and regulations as the superintendent shall deem neces- 22 sary to prevent firearms, rifles, and shotguns from being diverted from 23 the legal stream of commerce. 24 § 875-i. Violations. Any person, firm, or corporation who knowingly 25 violates any provision of this article shall be guilty of a class A 26 misdemeanor punishable as provided for in the penal law. 27 § 2. Subdivisions 11 and 12 of section 400.00 of the penal law, subdi- 28 vision 11 as amended by chapter 1 of the laws of 2013 and subdivision 12 29 as amended by chapter 129 of the laws of 2019, are amended to read as 30 follows: 31 11. License: revocation and suspension. (a) The conviction of a licen- 32 see anywhere of a felony or serious offense or a licensee at any time 33 becoming ineligible to obtain a license under this section shall operate 34 as a revocation of the license. A license may be revoked or suspended as 35 provided for in section 530.14 of the criminal procedure law or section 36 eight hundred forty-two-a of the family court act. Except for a license 37 issued pursuant to section 400.01 of this article, a license may be 38 revoked and cancelled at any time in the city of New York, and in the 39 counties of Nassau and Suffolk, by the licensing officer, and elsewhere 40 than in the city of New York by any judge or justice of a court of 41 record; a license issued pursuant to section 400.01 of this article may 42 be revoked and cancelled at any time by the licensing officer or any 43 judge or justice of a court of record. A license to engage in the busi- 44 ness of dealer may be revoked or suspended for any violation of the 45 provisions of article thirty-nine-BB of the general business law. The 46 official revoking a license shall give written notice thereof without 47 unnecessary delay to the executive department, division of state police, 48 Albany, and shall also notify immediately the duly constituted police 49 authorities of the locality. 50 (b) Whenever the director of community services or his or her designee 51 makes a report pursuant to section 9.46 of the mental hygiene law, the 52 division of criminal justice services shall convey such information, 53 whenever it determines that the person named in the report possesses a 54 license issued pursuant to this section, to the appropriate licensing 55 official, who shall issue an order suspending or revoking such license.
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1 (c) In any instance in which a person's license is suspended or 2 revoked under paragraph (a) or (b) of this subdivision, such person 3 shall surrender such license to the appropriate licensing official and 4 any and all firearms, rifles, or shotguns owned or possessed by such 5 person shall be surrendered to an appropriate law enforcement agency as 6 provided in subparagraph (f) of paragraph one of subdivision a of 7 section 265.20 of this chapter. In the event such license, firearm, 8 shotgun, or rifle is not surrendered, such items shall be removed and 9 declared a nuisance and any police officer or peace officer acting 10 pursuant to his or her special duties is authorized to remove any and 11 all such weapons. 12 12. Records required of gunsmiths and dealers in firearms. [Any] In 13 addition to the requirements set forth in article thirty-nine-BB of the 14 general business law, any person licensed as gunsmith or dealer in 15 firearms shall keep a record book approved as to form, except in the 16 city of New York, by the superintendent of state police. In the record 17 book shall be entered at the time of every transaction involving a 18 firearm the date, name, age, occupation and residence of any person from 19 whom a firearm is received or to whom a firearm is delivered, and the 20 calibre, make, model, manufacturer's name and serial number, or if none, 21 any other distinguishing number or identification mark on such firearm. 22 Before delivering a firearm to any person, the licensee shall require 23 him to produce either a license valid under this section to carry or 24 possess the same, or proof of lawful authority as an exempt person 25 pursuant to section 265.20 of this chapter and either (a) the National 26 Instant Criminal Background Check System (NICS) or its successor has 27 issued a "proceed" response to the licensee, or (b) thirty calendar days 28 have elapsed since the date the licensee contacted NICS to initiate a 29 national instant criminal background check and NICS has not notified the 30 licensee that the transfer of the firearm to such person should be 31 denied. In addition, before delivering a firearm to a peace officer, the 32 licensee shall verify that person's status as a peace officer with the 33 division of state police. After completing the foregoing, the licensee 34 shall remove and retain the attached coupon and enter in the record book 35 the date of such license, number, if any, and name of the licensing 36 officer, in the case of the holder of a license to carry or possess, or 37 the shield or other number, if any, assignment and department, unit or 38 agency, in the case of an exempt person. The original transaction report 39 shall be forwarded to the division of state police within ten days of 40 delivering a firearm to any person, and a duplicate copy shall be kept 41 by the licensee. The superintendent of state police may designate that 42 such record shall be completed and transmitted in electronic form. A 43 dealer may be granted a waiver from transmitting such records in elec- 44 tronic form if the superintendent determines that such dealer is incapa- 45 ble of such transmission due to technological limitations that are not 46 reasonably within the control of the dealer, or other exceptional 47 circumstances demonstrated by the dealer, pursuant to a process estab- 48 lished in regulation, and at the discretion of the superintendent. 49 Records assembled or collected for purposes of inclusion in the database 50 created pursuant to section 400.02 of this article shall not be subject 51 to disclosure pursuant to article six of the public officers law. The 52 record book shall be maintained on the premises mentioned and described 53 in the license and shall be open at all reasonable hours for inspection 54 by any peace officer, acting pursuant to his special duties, or police 55 officer. In the event of cancellation or revocation of the license for 56 gunsmith or dealer in firearms, or discontinuance of business by a
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1 licensee, such record book shall be immediately surrendered to the 2 licensing officer in the city of New York, and in the counties of Nassau 3 and Suffolk, and elsewhere in the state to the executive department, 4 division of state police. 5 § 3. Severability. If any clause, sentence, paragraph, section or part 6 of this act shall be adjudged by any court of competent jurisdiction to 7 be invalid, such judgment shall not affect, impair or invalidate the 8 remainder thereof, but shall be confined in its operation to the clause, 9 sentence, paragraph, section or part thereof directly involved in the 10 controversy in which such judgment shall have been rendered. 11 § 4. This act shall take effect on the one hundred eightieth day after 12 it shall have become a law. Effective immediately, the addition, amend- 13 ment and/or repeal of any rule or regulation for the implementation of 14 section two of this act on its effective date are authorized to be made 15 on or before such effective date.