S07869 Summary:

BILL NOS07869
 
SAME ASSAME AS A11108
 
SPONSORJOHNSON C
 
COSPNSRKRUEGER
 
MLTSPNSR
 
Amd SS25.03, 25.11, 25.15, 25.25, 25.29, 25.30 & 25.35, add S25.24, Arts & Cul L; amd S4, Chap 704 of 1991
 
Relates to resale of tickets to places of entertainment; provides for the regulation of boxing and wrestling relating to tickets to places of entertainment.
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S07869 Actions:

BILL NOS07869
 
05/18/2010REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
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S07869 Floor Votes:

There are no votes for this bill in this legislative session.
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S07869 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7869
 
                    IN SENATE
 
                                      May 18, 2010
                                       ___________
 
        Introduced  by  Sen.  C. JOHNSON -- (at request of the Governor) -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee on Investigations and Government Operations
 
        AN ACT to amend the arts and cultural affairs law, in relation to resale
          of  tickets  to  places  of entertainment; to amend chapter 704 of the
          laws of 1991, amending the arts and cultural affairs law  and  chapter

          912 of the laws of 1920 relating to the regulation of boxing and wres-
          tling  relating  to tickets to places of entertainment, in relation to
          the effectiveness thereof
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  25.03  of  the  arts and cultural affairs law is
     2  amended by adding a new subdivision 10 to read as follows:
     3    10. "Ticket office" means a building or other structure located  other
     4  than  at the place of entertainment, at which the operator or the opera-
     5  tor's agent offers tickets for first sale to the public.
     6    § 2. Section 25.11 of the arts and cultural affairs law is amended  by
     7  adding a new subdivision 4 to read as follows:
     8    4.  For  purposes of this section, "ticket office" means a building or

     9  other structure located other than at the  place  of  entertainment,  at
    10  which the operator or the operator's agent offers tickets for first sale
    11  to the public.
    12    § 3. Section 25.11 of the arts and cultural affairs law, as amended by
    13  chapter  61 of the laws of 2007, subdivision 3 as amended by chapter 374
    14  of the laws of 2007, is amended to read as follows:
    15    § 25.11. Resales of tickets within buffer zone. 1.  No  person,  firm,
    16  corporation  or  not-for-profit  organization, whether or not domiciled,
    17  licensed or registered within the state, shall resell, offer  to  resell
    18  or solicit the resale of any ticket to any place of entertainment having
    19  a  permanent  seating capacity in excess of five thousand persons within
    20  one thousand five hundred feet from the physical structure of such place

    21  of entertainment, or a ticket office.
    22    2. No person, firm, corporation or not-for-profit organization, wheth-
    23  er or not domiciled, licensed or  registered  within  the  state,  shall
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12239-01-0

        S. 7869                             2
 
     1  resell, offer to resell or solicit the resale of any ticket to any place
     2  of entertainment having a permanent seating capacity of five thousand or
     3  fewer  persons  within  five hundred feet from the physical structure or
     4  ticket  office  of  such  place  of entertainment, provided however that
     5  current licensees and those seeking a license  under  this  article  are

     6  exempt  from such buffer zone when operating out of a permanent physical
     7  structure.
     8    3. Notwithstanding subdivisions one and two of this section, an opera-
     9  tor may designate an area within the property  line  of  such  place  of
    10  entertainment  for  the  lawful resale of tickets only to events at such
    11  place of entertainment by any person, firm, corporation or  not-for-pro-
    12  fit organization, whether or not domiciled, licensed or registered with-
    13  in the state.
    14    § 4. Section 25.15 of the arts and cultural affairs law, as amended by
    15  chapter 374 of the laws of 2007, is amended to read as follows:
    16    § 25.15. Bond.  The secretary of state shall require the applicant for
    17  a  license  to  file with the application therefor a bond in due form to
    18  the people of New York in the penal sum of twenty-five thousand dollars,

    19  with two or more sufficient sureties or a duly authorized surety  compa-
    20  ny,  which  bond  shall be approved by the secretary of state. Each such
    21  bond shall be conditioned that the obligor will not  be  guilty  of  any
    22  fraud  or  extortion, will not violate directly or indirectly any of the
    23  provisions of this article or any of the provisions of  the  license  or
    24  certificate   provided  for  in  this  article,  will  comply  with  the
    25  provisions of this article and will pay all damages  occasioned  to  any
    26  person by reason of any misstatement, misrepresentation, fraud or deceit
    27  or  any  unlawful  act or omission of such obligor, his or her agents or
    28  employees, while acting within the  scope  of  their  employment,  made,
    29  committed  or  omitted in connection with the provisions of this article
    30  in the business conducted under such license  or  caused  by  any  other

    31  violation  of  this  article  in carrying on the business for which such
    32  license is granted. [A suit to recover on the bond required to be  filed
    33  by  the  provisions  of  this  article may be brought in the name of the
    34  person damaged, upon the bond deposited with the department of state  by
    35  such  licensed  person, in a court of competent jurisdiction. The amount
    36  of damages claimed by the plaintiff and not the  penalty  named  in  the
    37  bond  shall  determine the jurisdiction of the court in which the action
    38  is brought.] One or more recoveries or payments upon such bond shall not
    39  vitiate the same but such bond shall remain in full  force  and  effect,
    40  provided,  however,  that the aggregate amount of all such recoveries or

    41  payments shall not exceed the penal sum thereof.   Before the  secretary
    42  shall  draw upon such bond, the secretary shall issue a determination in
    43  writing which shall include the basis  of  such  action.  The  secretary
    44  shall notify in writing the licensee of any such determination and shall
    45  afford  the licensee an opportunity to respond within twenty days of the
    46  receipt of such determination. In no event may the bond be drawn upon in
    47  less than twenty-five days after the service of a determination  to  the
    48  licensee.  Such  written  notice  may  be  served  by  delivery  thereof
    49  personally to the licensee, or by certified mail to the last known busi-
    50  ness address of such licensee.  Only  upon  such  determination  of  the

    51  secretary shall moneys be withdrawn from the bond. Upon the commencement
    52  of any action or actions against the surety upon any such bond for a sum
    53  or  sums  aggregating or exceeding the amount of such bond the secretary
    54  of state shall require a new and additional bond in like amount  as  the
    55  original  one,  which shall be filed with the department of state within
    56  thirty days after the demand therefor. Failure to file such bond  within

        S. 7869                             3
 
     1  such  period  shall  constitute  cause for the revocation of the license
     2  pursuant to section 25.31 of this  article  theretofore  issued  to  the
     3  licensee  upon whom such demand shall have been made. Any suit or action
     4  against  the  surety  on  any  bond  required  by the provisions of this
     5  section shall be commenced within one year after  the  cause  of  action

     6  shall have accrued.
     7    §  5.  Section 4 of chapter 704 of the laws of 1991, amending the arts
     8  and cultural affairs law and chapter 912 of the laws of 1920 relating to
     9  the regulation of boxing and wrestling relating to tickets to places  of
    10  entertainment,  as amended by chapter 68 of the laws of 2009, is amended
    11  to read as follows:
    12    § 4. This act shall take effect on the sixtieth  day  after  it  shall
    13  have  become  a  law, provided, chapter 61 of the laws of 2007 shall not
    14  take effect with respect to the issuance  of  licenses  or  certificates
    15  under  this  article  by  the  secretary of state or department of state
    16  until January 1, 2008 and regulation under this article by  the  commis-
    17  sioners  of  licenses  of  the political subdivisions of the state shall
    18  continue through December 31, 2007, and shall remain in full  force  and

    19  effect  only until and including May 15, [2010] 2011 when such act shall
    20  be repealed and when, notwithstanding any other provision  of  law,  the
    21  provisions  of  article  25  of title G of the arts and cultural affairs
    22  law, repealed by such act, shall be reinstituted; provided further  that
    23  section  25.11 of the arts and cultural affairs law, as added by section
    24  one of this act, shall survive such repeal date. Provided, however,  the
    25  printing  on  tickets  required  pursuant to sections 25.07 and 25.08 of
    26  article 25 of the arts and cultural affairs law, as added by  this  act,
    27  shall not apply to tickets printed prior to enactment of such article so
    28  long  as  notice  of the higher maximum premium price and prohibition of
    29  sales within one thousand five hundred feet from the physical  structure

    30  of   the  place  of  entertainment,  where  applicable,  is  prominently
    31  displayed at the point of sale and at such place of entertainment.
    32    § 6. Section 25.25 of the arts and cultural affairs law, as amended by
    33  chapter 374 of the laws of 2007, is amended to read as follows:
    34    § 25.25. Records of purchases and sales. 1. Every  licensee  shall  at
    35  all times keep full and accurate sets of records showing:  [(1)] (a) the
    36  prices  at which all tickets have been bought and sold by such licensee;
    37  and [(2)] (b) the names and addresses of the person, firm or corporation
    38  from whom they were bought. Operators offering for initial sale  tickets
    39  by  means  of an auction shall maintain a record of the price when known
    40  and the number of tickets and types of seats  offered  through  auction.

    41  These records shall be made available upon request to the state attorney
    42  general,  the  secretary  of  state, or other governmental body with the
    43  express authority to enforce any  section  of  this  article;  provided,
    44  however,  that  the  records  required  to be maintained by this section
    45  shall be considered proprietary in nature and shall be governed  by  the
    46  protections  set forth in subdivision five of section eighty-nine of the
    47  public officers law. These records shall be retained for a period of not
    48  less than ten years.
    49    2. Twice annually, on June thirtieth and December thirty-first,  every
    50  licensee  that  resells  tickets  or  facilitates  the  resale or resale
    51  auction of tickets between independent parties  by  any  and  all  means
    52  shall  report  to the consumer protection board the total number of, and

    53  average resale or average final resale auction price of, all tickets  to
    54  each  ticketed  event,  provided, however, that repeat performances of a
    55  single event, and  multiple  events  that  are  part  of  a  season-long
    56  performance  shall  be treated as a single event for the purposes of the

        S. 7869                             4
 
     1  reporting requirement of this subdivision. The information  required  to
     2  be  reported  by  this section shall be considered proprietary in nature
     3  and shall be governed by the protections set forth in  subdivision  five
     4  of  section  eighty-nine  of  the public officers law, and shall be used
     5  exclusively for analytical purposes by the consumer protection board.

     6    § 7. Subdivision 1 of section 25.29 of the arts and  cultural  affairs
     7  law, as amended by chapter 61 of the laws of 2007, is amended to read as
     8  follows:
     9    1.  No  operator  of  any place of entertainment, or his or her agent,
    10  representative, employee or licensee shall, if a price  be  charged  for
    11  admission  thereto,  exact, demand, accept or receive, directly or indi-
    12  rectly, any premium or price in excess of  the  established  price  plus
    13  lawful  taxes  whether  designated  as  price,  gratuity  or  otherwise;
    14  provided, however: (a) nothing in this article  shall  be  construed  to
    15  prohibit  a  reasonable  service charge by the operator or agents of the
    16  operator for special services, including but not limited to, sales  away
    17  from  the  box office, credit card sales or delivery; and (b) nothing in

    18  this article shall be construed to prohibit an  operator  or  its  agent
    19  from offering for initial sale tickets by means of an auction.
    20    §  8.  Section 25.30 of the arts and cultural affairs law, as added by
    21  chapter 61 of the laws of 2007, is amended to read as follows:
    22    § 25.30. Operator prohibitions. 1. A ticket is a  license,  issued  by
    23  the  operator of a place of entertainment, for admission to the place of
    24  entertainment at the date and time specified on the ticket,  subject  to
    25  the  terms  and conditions as specified by the operator. Notwithstanding
    26  any other provision of law to the contrary, it shall be  prohibited  for
    27  any  operator  of  a  place  of  entertainment,  [who  offers  for  sale
    28  subscription or season ticket packages] or operator's agent, to:

    29    (a) restrict by any means the resale of any tickets included in  [the]
    30  a subscription or season ticket package as a condition of purchase, as a
    31  condition to retain such tickets for the duration of the subscription or
    32  season  ticket  package  agreement,  or  as  a  condition  to retain any
    33  contractually agreed upon rights  to  purchase  future  subscription  or
    34  season  ticket packages that are otherwise conferred in the subscription
    35  or season ticket agreement[. Furthermore, it shall be prohibited for any
    36  operator of a place of entertainment to];
    37    (b) deny access to a ticket holder who possesses a resold subscription
    38  or season ticket to a performance based solely on the grounds that  such
    39  ticket has been resold[.]; or

    40    (c) employ a form of paperless ticketing that is not readily transfer-
    41  able  to  another  customer through a transaction that is independent of
    42  the operator or operator's agent, unless a purchaser is given the option
    43  at the time of first public sale to purchase the  same  tickets  at  the
    44  same  established  price  in some other form, including, but not limited
    45  to, paper tickets, that is readily transferable  through  a  transaction
    46  that is independent of the operator or operator's agent, provided howev-
    47  er, that nothing in this paragraph shall prohibit the operator or opera-
    48  tor's agent from imposing a nominal surcharge on paperless tickets.
    49    2. Additionally, nothing in this article shall be construed to prohib-

    50  it  an operator of a place of entertainment from maintaining and enforc-
    51  ing any policies regarding conduct or behavior at or in connection  with
    52  their  venue.    Further,  nothing in this article shall be construed to
    53  prohibit an operator of a place of entertainment of six  thousand  seats
    54  or  less, or such operator's agent, from restricting the resale of tick-
    55  ets that are offered at a promotional or discounted price, for free,  or
    56  for  persons with disabilities. An operator shall be permitted to revoke

        S. 7869                             5
 
     1  or restrict season tickets for reasons relating to violations  of  venue
     2  policies,  including but not limited to, attempts by two or more persons
     3  to gain admission to a single event  with  both  the  cancelled  tickets

     4  originally  issued to a season ticket holder and those tickets re-issued
     5  as part of a resale transaction, and to the extent the operator may deem
     6  necessary for the protection of the safety  of  patrons  or  to  address
     7  fraud or misconduct.
     8    3. No operator or operator's agent shall sell or convey tickets to any
     9  secondary  ticket reseller owned or controlled by the operator or opera-
    10  tor's agent.
    11    4. The operator or the promoter shall determine  whether  a  seat  for
    12  which  a  ticket  is for sale has an obstructed view, and shall disclose
    13  such obstruction. If the operator or promoter discloses that a seat  for
    14  which  a  ticket  is  for  sale  has an obstructed view, it shall be the
    15  responsibility  of  the  secondary  ticket  reseller  to  disclose  such

    16  obstruction  upon  the resale of such ticket. Such obstruction shall not
    17  include an obstruction of view caused by a person, or persons, seated in
    18  an adjacent seat, or seats, or occupying an aisle; or an obstruction  of
    19  view  caused  by  an  object  or objects placed upon an adjacent seat or
    20  seats, or in an aisle; or an obstruction of view that is de  minimus  or
    21  transitory in nature.
    22    §  9. Section 25.35 of the arts and cultural affairs law is amended by
    23  adding a new subdivision 7 to read as follows:
    24    7. Notwithstanding any other provision to the contrary, when the fines
    25  included in this section are imposed on a  firm,  corporation  or  other
    26  entity  that  is not a single person, such fines may be imposed at up to

    27  two times the amount otherwise  allowed,  or,  where  applicable,  three
    28  times the amount of the defendant's gain.
    29    §  10.  The  arts  and cultural affairs law is amended by adding a new
    30  section 25.24 to read as follows:
    31    § 25.24. Automated ticket purchasing software. 1. The term  "automated
    32  ticket  purchasing  software"  shall mean, any machine, device, computer
    33  program or computer software that navigates or runs automated  tasks  on
    34  retail  ticket  purchasing websites in order to bypass security measures
    35  to purchase tickets.
    36    2.  It shall be unlawful for any person to  utilize  automated  ticket
    37  purchasing software to purchase tickets.
    38    3. Any person who knowingly utilizes automated ticket purchasing soft-

    39  ware  in  order to bypass security measures to purchase tickets shall be
    40  subject to a civil penalty in an amount of no  less  than  five  hundred
    41  dollars  and  no  more than one thousand dollars for each such violation
    42  and shall forfeit all profits made from the sale of any such  unlawfully
    43  obtained tickets.
    44    4. Any person who intentionally maintains any interest in or maintains
    45  any  control of the operation of automated ticket purchasing software to
    46  bypass security measures to purchase tickets shall be subject to a civil
    47  penalty in an amount of no less than seven hundred fifty dollars and  no
    48  more  than one thousand five hundred dollars for each such violation and
    49  shall forfeit all profits made from the  sale  of  any  such  unlawfully

    50  obtained tickets.
    51    5. Any person who is subject to a civil penalty under this section and
    52  has  been  assessed  a  penalty  under this section in the previous five
    53  years shall be guilty of a violation and may be fined no less  than  one
    54  thousand  dollars  and  no more than five thousand dollars for each such
    55  violation and shall forfeit all profits from the sale of any such unlaw-
    56  fully obtained tickets. In addition, a person convicted of  a  violation

        S. 7869                             6
 
     1  under this section may be required to forfeit any and all equipment used
     2  in the unlawful purchasing of tickets.
     3    6.  The  attorney  general  shall  have  jurisdiction  to  enforce the

     4  provisions of this section in accordance with the powers granted to  him
     5  or her by section sixty-three of the executive law.
     6    7.  In  addition to the power given to the attorney general to enforce
     7  the provisions of this section, any place of entertainment,  as  defined
     8  by  section  23.03 of this chapter, or any aggrieved party that has been
     9  injured by wrongful conduct prescribed by  this  section  may  bring  an
    10  action to recover all actual damages suffered as a result of any of such
    11  wrongful  conduct.  The  court in its discretion may award damages up to
    12  three times the amount of actual  damages.  The  court  may  enjoin  the
    13  respondent  from any and all activity prohibited under this section. The

    14  court may also award reasonable attorney's fees and costs.  Any  penalty
    15  or  recovery  authorized  by  this  section  may be recovered in a class
    16  action.
    17    § 11. Notwithstanding the provisions  of  article  5  of  the  general
    18  construction  law, if this act shall take effect after May 15, 2010, the
    19  provisions of article 25 of the arts and cultural  affairs  law,  except
    20  section  25.11  are  hereby revived and shall continue in full force and
    21  effect as they existed on May 15, 2010 through May 15, 2011,  when  upon
    22  such date such provisions shall expire and be deemed repealed.
    23    §  12.    This  act  shall  take effect immediately; provided that the
    24  amendments to section 25.03 of the arts and cultural affairs  law,  made
    25  by  section  one  of  this  act,  shall be subject to the expiration and

    26  reversion of such section pursuant to section 4 of chapter  704  of  the
    27  laws  of 1991, as amended, when upon such date the provisions of section
    28  two of this act shall take effect; provided further that the  amendments
    29  to  section  25.15  of the arts and cultural affairs law made by section
    30  four of this act shall not affect the expiration and reversion  of  such
    31  section  and  shall  expire  and be deemed repealed therewith; provided,
    32  further, that the amendments to section 25.25 of the arts  and  cultural
    33  affairs law, made by section six of this act shall not affect the repeal
    34  of  such  section  and  shall  be  deemed  repealed therewith; provided,
    35  further, that the amendments to section 25.29 of the arts  and  cultural
    36  affairs  law,  made  by  section  seven of this act shall not affect the
    37  repeal of such section and shall be deemed repealed therewith; provided,

    38  further, that the amendments to section 25.30 of the arts  and  cultural
    39  affairs  law,  made  by  section eight of this act, shall not affect the
    40  repeal of such section and shall be deemed repealed therewith; provided,
    41  further, that the amendments to section 25.35 of the arts  and  cultural
    42  affairs  law,  made  by  section  nine of this act, shall not affect the
    43  repeal of such section and  shall  be  deemed  repealed  therewith;  and
    44  provided  further  that  section  25.24 of the arts and cultural affairs
    45  law, as added by section ten of this act, shall survive  the  expiration
    46  and  reversion  of  article  25  of such law as provided in section 4 of
    47  chapter 704 of the laws of 1991, as amended.
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