Add Art 39-BB SS875-a - 875-j, Gen Bus L, amd S400.00, Pen L
Requires the creation and imposition of restrictive commercial practices and stringent recordkeeping and reporting to prevent gun sales to criminals; provides that such measures shall be promulgated by the superintendent of state police; restricts premises of sales; requires employee training; prohibits straw purchases; imposes additional license conditions.
STATE OF NEW YORK
________________________________________________________________________
1302--A
2015-2016 Regular Sessions
IN SENATE
January 9, 2015
___________
Introduced by Sen. PERALTA -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection --
committee discharged, bill amended, 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 sale of firearms, rifles, and shotguns to criminals
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and declaration. The legislature here-
2 by finds and declares as follows:
3 1. Firearms, rifles and shotguns are used to kill over 30,000 individ-
4 uals in the United States every year, including 1,000 individuals in New
5 York state alone. Additionally, there are 100,000 non-fatal injuries
6 across the country. The federal government has largely ignored this
7 public health crisis and has left it up to state and local governments
8 to protect its citizens. Firearm violence also costs billions of dollars
9 and causes incalculable emotional damage, devastating families and
10 communities throughout the country. Therefore, the state of New York
11 has a strong interest in reducing violence and crimes that involve the
12 use of firearms and the illegal trafficking of firearms. Illegal guns
13 obtained throughout the state end up in the hands of criminals, youth
14 and violent individuals who use them to threaten, maim and kill.
15 2. There is a thriving underground market for illegal firearms, large-
16 ly driven by demand from drug gangs and other criminals. A highly effi-
17 cient and continuous business practice exists in which firearms are
18 moved from legal manufacture and sale to prohibited purchasers, making
19 them illegal firearms. In 2013, according to a review by the federal
20 Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) of trace data
21 compiled for several regions in the state, including Albany, Buffalo,
22 Rochester, Syracuse, Long Island and New York City that calendar year,
23 8,539 firearms were recovered and traced, 2,164 of which were long guns.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00153-04-5
S. 1302--A 2
1 Outside New York City, long guns are sold without a permit. 64.4% of the
2 firearms recovered from crimes in New York in 2013 were found in New
3 York City. In 2011, ATF trace data showed that 90% of the traceable
4 guns used in crimes in the five boroughs were from out of state. State-
5 wide, in 2011, 68% of traced crime guns recovered in New York came from
6 out of state. A significant portion of guns involved in crimes upstate
7 originate within the state. For example, according to 2009 ATF crime gun
8 trace data, 69% of crime guns in the Buffalo area and 50% of crime guns
9 in the Syracuse area originated within New York state.
10 3. Youth are particularly at risk of being killed with guns. Accord-
11 ing to the Centers for Disease Control and Prevention, in 2010 alone,
12 116 children and teens (under the age of 19) died from gun violence in
13 New York state.
14 4. A substantial portion of illegal firearms are diverted to the ille-
15 gal market through licensed gun dealers. Rogue gun dealers play a key
16 role in this market. These rogue dealers funnel guns to the illegal
17 market through a variety of channels. One of the most common means is to
18 allow "straw purchases". A straw purchase occurs when a person purchases
19 a gun on behalf of a prohibited person. The ATF conducted an investi-
20 gation of gun trafficking from July 1996 to December 1998 and found that
21 almost 26,000 trafficked firearms were associated with investigations in
22 which there was a straw purchaser. Almost 50% of all trafficking inves-
23 tigations involved straw purchasers, with an average of 37 firearms
24 trafficked per investigation. Another issue, according to a 2008 report
25 by Mayors Against Illegal Guns, Inside Straw Purchasing: How Criminals
26 Get Guns Illegally, is that many traffickers return to the same store
27 again and again once they have identified it as one in which they can
28 make straw purchases easily. According to the ATF, 1% of gun dealers
29 are the source of almost 60% of crime guns.
30 5. Although most gun dealers operate their businesses legally and
31 responsibly, some gun dealers who are corrupt or maintain shoddy record-
32 keeping practices flood the streets with illegal weapons as a result of
33 their unrestricted access to new gun inventory and the unwillingness of
34 gun manufacturers to terminate their supply to these rogue dealers.
35 Current federal and state regulation has not curbed the business prac-
36 tice of illegal gun dealers. According to a 2004 study by Americans for
37 Gun Safety, of the 120 worst gun dealers in the country, namely those
38 dealers with an average of 500 crime guns traced to them, 96 were still
39 in operation.
40 6. Moreover, this problem is not limited to unlicensed sellers, and
41 clearly includes federal firearms licensees (FFLs). Indeed, although
42 FFLs were involved in under 10% of the trafficking investigations under-
43 taken by ATF, they were associated with the largest number of diverted
44 firearms--over 40,000 guns, which is nearly half of the total number of
45 trafficked firearms documented during the two-year period of the ATF's
46 investigation. Additionally, a 2010 report by Mayors Against Illegal
47 Guns indicated that several states which allow state authorities to
48 supplement the federal ATF inspection with routine inspections provide
49 law enforcement with more opportunities to uncover dealers in violation
50 of the law. These inspections also help identify dealers who exercise
51 lax oversight over their inventory and may lead to improved compliance
52 with federal, state, and local laws.
53 7. Current state law governing firearm dealers is inadequate to
54 prevent the diversion of firearms to the illegal marketplace. Addi-
55 tional protections that are needed include, but are not limited to,
56 better gun dealer internal compliance procedures, programs to eliminate
S. 1302--A 3
1 straw purchases, improved security measures, reducing youth access, and
2 mandatory training for gun dealer employees. The additional protections
3 set forth in this act will greatly enhance the state's efforts to reduce
4 criminal activity in the state.
5 § 2. The general business law is amended by adding a new article 39-BB
6 to read as follows:
7 ARTICLE 39-BB
8 PREVENTING THE SALE OF FIREARMS,
9 RIFLES, AND SHOTGUNS TO CRIMINALS
10 Section 875-a. Definitions.
11 875-b. Reasonable measures to prevent sales and
12 transfers to criminals.
13 875-c. Security.
14 875-d. Access to firearms, rifles, and shotguns.
15 875-e. Location of firearm, rifle, and shotgun sales.
16 875-f. Employee training.
17 875-g. Maintenance of records.
18 875-h. Internal compliance and certification.
19 875-i. Rules and regulations.
20 875-j. Violations.
21 § 875-a. Definitions. For the purposes of this article:
22 1. "Dealer" means any person, firm, partnership, corporation, or
23 company who engages in the business of purchasing, selling, keeping for
24 sale, lending, leasing, or in any manner disposing of, any firearm,
25 rifle, or shotgun.
26 2. "Dispose of" means to dispose of, give, give away, lease, lend,
27 keep for sale, offer, offer for sale, sell, transfer, or otherwise
28 dispose of.
29 3. "Firearm" has the same meaning as that term is defined in subdivi-
30 sion three of section 265.00 of the penal law.
31 4. "Firearm exhibitor" means any person, firm, partnership, corpo-
32 ration, or company that exhibits, sells, offers for sale, transfers, or
33 exchanges firearms, rifles, or shotguns at a gun show.
34 5. "Retail dealer" means any dealer engaged in the retail business of
35 selling firearms, rifles, or shotguns.
36 6. "Rifle" has the same meaning as that term is defined in subdivision
37 eleven of section 265.00 of the penal law.
38 7. "Shotgun" has the same meaning as that term is defined in subdivi-
39 sion twelve of section 265.00 of the penal law.
40 8. "Straw purchase" means the purchase, or attempt to purchase, by a
41 person of a firearm, rifle, or shotgun for, on behalf of, or for the use
42 of another person, knowing that it would be unlawful for such other
43 person to possess such firearm, rifle, or shotgun, or an attempt to make
44 such a purchase.
45 9. "Straw purchaser" means a person who, knowing that it would be
46 unlawful for another person to possess a firearm, rifle, or shotgun,
47 purchases or attempts to purchase a firearm, rifle, or shotgun for, on
48 behalf of, or for the use of such other person.
49 10. "Superintendent" means the superintendent of state police.
50 § 875-b. Reasonable measures to prevent sales and transfers to crimi-
51 nals. Every dealer shall adopt reasonable measures to prevent firearms,
52 rifles, and shotguns from being diverted from the legal stream of
53 commerce, intentionally or otherwise, for later sale, transfer, or
54 disposal to individuals not legally entitled to purchase or possess such
55 weapons. Such measures shall include, but need not be limited to,
56 programs to eliminate sales to straw purchasers and to otherwise thwart
S. 1302--A 4
1 illegal gun trafficking. The superintendent shall develop programs
2 designed to eliminate sales to straw purchasers and to otherwise thwart
3 illegal gun trafficking. Within six months of the effective date of this
4 article, the superintendent shall submit a report to the legislature
5 detailing such programs, including establishing minimum requirements for
6 such programs.
7 § 875-c. Security. Every dealer shall implement a security plan for
8 securing firearms, rifles and shotguns, including firearms, rifles and
9 shotguns in shipment. The plan must satisfy at least the following
10 requirements:
11 1. display cases shall be locked at all times except when removing a
12 single firearm, rifle or shotgun to show a customer, and customers shall
13 handle firearms, rifles or shotguns only under the direct supervision of
14 an employee;
15 2. all firearms, rifles and shotguns shall be secured, other than
16 during business hours, in a locked fireproof safe or vault in the
17 licensee's business premises or in a similar secured and locked area;
18 and
19 3. ammunition shall be stored separately from the firearms, rifles and
20 shotguns and out of reach of the customers.
21 4. (a) The permitted business location shall be secured by an alarm
22 system that is installed and maintained by an alarm company operator
23 properly licensed pursuant to state law. The alarm system must be moni-
24 tored by a central station listed by Underwriters Laboratories, Inc.,
25 and covered by an active Underwriters Laboratories, Inc. alarm system
26 certificate with a #3 extent of protection.
27 (b) Underwriters Laboratories, Inc. uses the term "extent of
28 protection" to refer to the amount of alarm protection installed to
29 protect a particular area, room or container. Systems with a #3 extent
30 of protection include complete protection for all accessible openings,
31 and partial motion and sound detection at certain other areas of the
32 premises. More information may be found in: Central Station Alarm Asso-
33 ciation, A Practical Guide to Central Station Burglar Alarm Systems (3rd
34 ed. 2005).
35 § 875-d. Access to firearms, rifles, and shotguns. Every retail dealer
36 shall exclude all persons under eighteen years of age from those
37 portions of its premises where firearms, rifles, shotguns, or ammunition
38 are stocked or sold, unless such person is accompanied by a parent or
39 guardian.
40 § 875-e. Location of firearm, rifle, and shotgun sales. Every dealer
41 shall sell or otherwise dispose of firearms, rifles, and shotguns only
42 at the location listed on the dealer's federal firearms license or at
43 gun shows.
44 § 875-f. Employee training. Every retail dealer shall provide training
45 to all employees and other personnel engaged in the retail sale of
46 firearms, rifles, and shotguns relating to:
47 1. the law governing firearm, rifle, and shotgun transfers by federal
48 firearms licensees and individuals;
49 2. how to recognize straw purchases and other attempts to purchase
50 firearms, rifles, or shotguns illegally; and
51 3. how to teach consumers rules of gun safety, including but not
52 limited to the safe handling and storage of firearms, rifles, and shot-
53 guns.
54 No employee or agent of any retail dealer shall participate in the
55 sale or disposition of firearms, rifles, or shotguns unless such person
56 is at least twenty-one years of age and has first received the training
S. 1302--A 5
1 required by this section. The superintendent shall promulgate regu-
2 lations setting forth minimum requirements for the maintenance of
3 records of such training.
4 § 875-g. Maintenance of records. Every dealer shall establish and
5 maintain such purchase, sale, inventory, and other records at the deal-
6 er's place of business in such form and for such period as the super-
7 intendent shall require, and shall submit such records to the New York
8 state police every April and October. Such records shall at a minimum
9 include the following:
10 1. every dealer shall record the make, model, caliber or gauge, and
11 serial number of all rifles and shotguns that are acquired or disposed
12 of not later than one business day after their acquisition or disposi-
13 tion. Monthly backups of these records shall be maintained in a secure
14 container designed to prevent loss by fire, theft, or other mishap;
15 2. all rifles and shotguns acquired but not yet disposed of must be
16 accounted for through an inventory check prepared once each month and
17 maintained in a secure location;
18 3. rifle and shotgun sales information, including the serial numbers
19 of rifles and shotguns sold, dates of sale, and identity of purchasers,
20 shall be maintained and made available to government law enforcement
21 agencies and to the manufacturer of the weapon or its designee; and
22 4. every dealer shall maintain records of criminal rifle and shotgun
23 traces initiated by the federal bureau of alcohol, tobacco, firearms and
24 explosives ("ATF"). All ATF Form 4473 transaction records shall be
25 retained on the dealer's business premises in a secure container
26 designed to prevent loss by fire, theft, or other mishap.
27 § 875-h. Internal compliance and certification. 1. Every dealer shall:
28 (a) implement and maintain sufficient internal compliance procedures
29 to ensure compliance with the requirements of this article and all
30 applicable federal, state, and local laws and regulations governing the
31 sale, transfer, and disposal of firearms, rifles, and shotguns; and
32 (b) annually certify to the superintendent that such dealer has
33 complied with all of the requirements of this article. The superinten-
34 dent shall by regulation determine the form and content of such annual
35 certification.
36 2. The superintendent of state police shall promulgate regulations
37 establishing periodic inspections, during regular and usual business
38 hours, by the division of state police of the premises of every dealer
39 to determine compliance by such dealer with the requirements of this
40 article. Every dealer shall provide the division of state police with
41 full access to such dealer's premises for such inspections.
42 § 875-i. Rules and regulations. The superintendent may promulgate such
43 additional rules and regulations as the superintendent shall deem neces-
44 sary to prevent firearms, rifles, and shotguns from being diverted from
45 the legal stream of commerce.
46 § 875-j. Violations. Any person, firm, or corporation who knowingly
47 violates any provision of this article shall be guilty of a class A
48 misdemeanor punishable as provided for in the penal law, and shall be
49 guilty of a class E felony for a second violation occurring within five
50 years of a prior conviction for a violation of any provision of this
51 article.
52 § 3. Subdivision 1 of section 400.00 of the penal law, as amended by
53 chapter 1 of the laws of 2013, is amended to read as follows:
54 1. Eligibility. No license shall be issued or renewed pursuant to this
55 section except by the licensing officer, and then only after investi-
56 gation and finding that all statements in a proper application for a
S. 1302--A 6
1 license are true. No license shall be issued or renewed except for an
2 applicant (a) twenty-one years of age or older, provided, however, that
3 where such applicant has been honorably discharged from the United
4 States army, navy, marine corps, air force or coast guard, or the
5 national guard of the state of New York, no such age restriction shall
6 apply; (b) of good moral character; (c) who has not been convicted
7 anywhere of a felony or a serious offense; (d) who is not a fugitive
8 from justice; (e) who is not an unlawful user of or addicted to any
9 controlled substance as defined in section 21 U.S.C. 802; (f) who being
10 an alien (i) is not illegally or unlawfully in the United States or (ii)
11 has not been admitted to the United States under a nonimmigrant visa
12 subject to the exception in 18 U.S.C. 922(y)(2); (g) who has not been
13 discharged from the Armed Forces under dishonorable conditions; (h) who,
14 having been a citizen of the United States, has not renounced his or her
15 citizenship; (i) who has stated whether he or she has ever suffered any
16 mental illness; (j) who has not been involuntarily committed to a facil-
17 ity under the jurisdiction of an office of the department of mental
18 hygiene pursuant to article nine or fifteen of the mental hygiene law,
19 article seven hundred thirty or section 330.20 of the criminal procedure
20 law, section four hundred two or five hundred eight of the correction
21 law, section 322.2 or 353.4 of the family court act, or has not been
22 civilly confined in a secure treatment facility pursuant to article ten
23 of the mental hygiene law; (k) who has not had a license revoked or who
24 is not under a suspension or ineligibility order issued pursuant to the
25 provisions of section 530.14 of the criminal procedure law or section
26 eight hundred forty-two-a of the family court act; (l) in the county of
27 Westchester, who has successfully completed a firearms safety course and
28 test as evidenced by a certificate of completion issued in his or her
29 name and endorsed and affirmed under the penalties of perjury by a duly
30 authorized instructor, except that: (i) persons who are honorably
31 discharged from the United States army, navy, marine corps or coast
32 guard, or of the national guard of the state of New York, and produce
33 evidence of official qualification in firearms during the term of
34 service are not required to have completed those hours of a firearms
35 safety course pertaining to the safe use, carrying, possession, mainte-
36 nance and storage of a firearm; and (ii) persons who were licensed to
37 possess a pistol or revolver prior to the effective date of this para-
38 graph are not required to have completed a firearms safety course and
39 test; (m) who has not had a guardian appointed for him or her pursuant
40 to any provision of state law, based on a determination that as a result
41 of marked subnormal intelligence, mental illness, incapacity, condition
42 or disease, he or she lacks the mental capacity to contract or manage
43 his or her own affairs; and (n) concerning whom no good cause exists for
44 the denial of the license. No person shall engage in the business of
45 gunsmith or dealer in firearms unless licensed pursuant to this section,
46 and no person shall engage in the business of dealer in firearms unless
47 such person complies with the provisions of article thirty-nine-BB of
48 the general business law. An applicant to engage in such business shall
49 also be a citizen of the United States, more than twenty-one years of
50 age and maintain a place of business in the city or county where the
51 license is issued. For such business, if the applicant is a firm or
52 partnership, each member thereof shall comply with all of the require-
53 ments set forth in this subdivision and if the applicant is a corpo-
54 ration, each officer thereof shall so comply.
S. 1302--A 7
1 § 4. Subdivisions 11 and 12 of section 400.00 of the penal law, as
2 amended by chapter 1 of the laws of 2013, are amended to read as
3 follows:
4 11. License: revocation and suspension. (a) The conviction of a licen-
5 see anywhere of a felony or serious offense or a licensee at any time
6 becoming ineligible to obtain a license under this section shall operate
7 as a revocation of the license. A license may be revoked or suspended as
8 provided for in section 530.14 of the criminal procedure law or section
9 eight hundred forty-two-a of the family court act. Except for a license
10 issued pursuant to section 400.01 of this article, a license may be
11 revoked and cancelled at any time in the city of New York, and in the
12 counties of Nassau and Suffolk, by the licensing officer, and elsewhere
13 than in the city of New York by any judge or justice of a court of
14 record; a license issued pursuant to section 400.01 of this article may
15 be revoked and cancelled at any time by the licensing officer or any
16 judge or justice of a court of record. A license to engage in the busi-
17 ness of dealer may be revoked or suspended for any violation of the
18 provisions of article thirty-nine-BB of the general business law. The
19 official revoking a license shall give written notice thereof without
20 unnecessary delay to the executive department, division of state police,
21 Albany, and shall also notify immediately the duly constituted police
22 authorities of the locality.
23 (b) Whenever the director of community services or his or her designee
24 makes a report pursuant to section 9.46 of the mental hygiene law, the
25 division of criminal justice services shall convey such information,
26 whenever it determines that the person named in the report possesses a
27 license issued pursuant to this section, to the appropriate licensing
28 official, who shall issue an order suspending or revoking such license.
29 (c) In any instance in which a person's license is suspended or
30 revoked under paragraph (a) or (b) of this subdivision, such person
31 shall surrender such license to the appropriate licensing official and
32 any and all firearms, rifles, or shotguns owned or possessed by such
33 person shall be surrendered to an appropriate law enforcement agency as
34 provided in subparagraph (f) of paragraph one of subdivision a of
35 section 265.20 of this chapter. In the event such license, firearm,
36 shotgun, or rifle is not surrendered, such items shall be removed and
37 declared a nuisance and any police officer or peace officer acting
38 pursuant to his or her special duties is authorized to remove any and
39 all such weapons.
40 12. Records required of gunsmiths and dealers in firearms. [Any] In
41 addition to the requirements set forth in article thirty-nine-BB of the
42 general business law, any person licensed as gunsmith or dealer in
43 firearms shall keep a record book approved as to form, except in the
44 city of New York, by the superintendent of state police. In the record
45 book shall be entered at the time of every transaction involving a
46 firearm the date, name, age, occupation and residence of any person from
47 whom a firearm is received or to whom a firearm is delivered, and the
48 calibre, make, model, manufacturer's name and serial number, or if none,
49 any other distinguishing number or identification mark on such firearm.
50 Before delivering a firearm to any person, the licensee shall require
51 him to produce either a license valid under this section to carry or
52 possess the same, or proof of lawful authority as an exempt person
53 pursuant to section 265.20 of this chapter. In addition, before deliver-
54 ing a firearm to a peace officer, the licensee shall verify that
55 person's status as a peace officer with the division of state police.
56 After completing the foregoing, the licensee shall remove and retain the
S. 1302--A 8
1 attached coupon and enter in the record book the date of such license,
2 number, if any, and name of the licensing officer, in the case of the
3 holder of a license to carry or possess, or the shield or other number,
4 if any, assignment and department, unit or agency, in the case of an
5 exempt person. The original transaction report shall be forwarded to the
6 division of state police within ten days of delivering a firearm to any
7 person, and a duplicate copy shall be kept by the licensee. The super-
8 intendent of state police may designate that such record shall be
9 completed and transmitted in electronic form. A dealer may be granted a
10 waiver from transmitting such records in electronic form if the super-
11 intendent determines that such dealer is incapable of such transmission
12 due to technological limitations that are not reasonably within the
13 control of the dealer, or other exceptional circumstances demonstrated
14 by the dealer, pursuant to a process established in regulation, and at
15 the discretion of the superintendent. Records assembled or collected for
16 purposes of inclusion in the database created pursuant to section 400.02
17 of this article shall not be subject to disclosure pursuant to article
18 six of the public officers law. The record book shall be maintained on
19 the premises mentioned and described in the license and shall be open at
20 all reasonable hours for inspection by any peace officer, acting pursu-
21 ant to his special duties, or police officer. In the event of cancella-
22 tion or revocation of the license for gunsmith or dealer in firearms, or
23 discontinuance of business by a licensee, such record book shall be
24 immediately surrendered to the licensing officer in the city of New
25 York, and in the counties of Nassau and Suffolk, and elsewhere in the
26 state to the executive department, division of state police.
27 § 5. Severability. If any clause, sentence, paragraph, section or part
28 of this act shall be adjudged by any court of competent jurisdiction to
29 be invalid, such judgment shall not affect, impair or invalidate the
30 remainder thereof, but shall be confined in its operation to the clause,
31 sentence, paragraph, section or part thereof directly involved in the
32 controversy in which such judgment shall have been rendered.
33 § 6. This act shall take effect on the ninetieth day after it shall
34 have become a law; provided that the superintendent of the division of
35 state police is authorized and directed to immediately adopt, amend, and
36 promulgate such rules and regulations as may be necessary and desirable
37 to effectuate the purposes of section two of this act.
