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A00837 Summary:

COSPNSRRamos, Englebright, Rosenthal L, Abinanti, Colton, Dinowitz, Steck, Seawright, Fahy, Pichardo, Cymbrowitz, Zebrowski, Carroll, Bichotte Hermelyn, Galef, Simon, Lavine
MLTSPNSRGottfried, Magnarelli
Add Art 39-BB §§875-a - 875-i, Gen Bus L; amd §400.00, Pen L
Requires the creation and imposition of restrictive commercial practices and stringent recordkeeping and reporting to prevent gun sales to individuals with a criminal record; 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.
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A00837 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                     January 6, 2021
          -- M. of A. GOTTFRIED, MAGNARELLI -- read once  and  referred  to  the
          Committee  on  Economic Development -- recommitted to the Committee on
          Economic 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  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 --
          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
     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.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 837--E                           2
     1          875-f. Maintenance of records.
     2          875-g. Internal compliance, certification, and reporting.
     3          875-h. Rules and regulations.
     4          875-i. Violations.
     5    § 875-a. Definitions. For the purposes of this article:
     6    1.  "Dealer" means a gunsmith or dealers in firearms licensed pursuant
     7  to section 400.00 of the penal law.
     8    2. "Dispose of" or "disposition of" means to give, give  away,  lease,
     9  lend, keep for sale, offer, offer for sale, sell, or transfer.
    10    3.  "Firearm" has the same meaning as that term is defined in subdivi-
    11  sion three of section 265.00 of the penal law.
    12    4. "Rifle" has the same meaning as that term is defined in subdivision
    13  eleven of section 265.00 of the penal law.
    14    5. "Shotgun" has the same meaning as that term is defined in  subdivi-
    15  sion twelve of section 265.00 of the penal law.
    16    6.  "Straw  purchase" means the purchase, or attempt to purchase, by a
    17  person of a firearm, rifle, shotgun or ammunition for, on behalf of,  or
    18  for  the  use  of  another  person  known or unknown. The term shall not
    19  include a bona fide gift to a person who is not prohibited from possess-
    20  ing or receiving such a firearm. For purposes  of  this  subdivision,  a
    21  gift to a person shall not be a bona fide gift if the person has offered
    22  or  given  the  purchaser  a  service  or  thing of value to acquire the
    23  firearm for the person.
    24    7. "Superintendent" means the superintendent of state police.
    25    § 875-b. Security. 1.  Every dealer shall implement  a  security  plan
    26  for  securing  firearms, rifles and shotguns, including firearms, rifles
    27  and shotguns in shipment. The plan shall satisfy at least the  following
    28  requirements:
    29    (a)  all  firearms,  rifles  and shotguns shall be secured, other than
    30  during business hours, in a locked fireproof safe or vault on the  deal-
    31  er's  business  premises or in a secured and locked area on the dealer's
    32  business premises; and
    33    (b) ammunition shall be stored separately from  firearms,  rifles  and
    34  shotguns and out of reach of customers.
    35    2. The dealer's business premises shall be secured by a security alarm
    36  system  that  is  installed  and maintained by a security alarm operator
    37  properly licensed pursuant to article six-D of this chapter.   Standards
    38  for  such security alarm systems shall be established by the superinten-
    39  dent in regulation. Such security alarm systems may be  developed  by  a
    40  federal  or  state  agency,  a  not-for-profit  organization, or another
    41  entity specializing in security alarm  standards approved by the  super-
    42  intendent for the purposes of this act.  The security alarm system shall
    43  be  capable  of being monitored by a central station, and shall provide,
    44  at a minimum, complete protection  and  monitoring  for  all  accessible
    45  openings,  and partial motion and sound detection at certain other areas
    46  of the premises.   The dealer location shall  additionally  be  equipped
    47  with  a  video  recording device at each point of sale and each entrance
    48  and exit to the premises, which shall be recorded from both  the  indoor
    49  and outdoor vantage point and shall maintain such recordings for a peri-
    50  od of not less than two years.
    51    § 875-c. Access to firearms, rifles, and shotguns. Every retail dealer
    52  shall  exclude  all  persons  under  eighteen  years  of  age from those
    53  portions of its premises where firearms, rifles, shotguns, or ammunition
    54  are stocked or sold, unless such person is accompanied by  a  parent  or
    55  guardian.

        A. 837--E                           3
     1    §  875-d.  Location of firearm, rifle, and shotgun sales. Every dealer
     2  shall sell or otherwise dispose of firearms, rifles, and  shotguns  only
     3  at  the  location  listed on the dealer's federal firearms license or at
     4  gun shows.
     5    §  875-e. Employee training. 1.  Every dealer shall provide the train-
     6  ing developed by the superintendent pursuant to subdivision two of  this
     7  section  to  all  new employees within thirty days of employment, to all
     8  existing employees within ninety days of  the  effective  date  of  this
     9  section, and to all employees annually thereafter.
    10    2. The superintendent shall develop and make available to each dealer,
    11  a  training  course in the conduct of firearm, rifle, and shotgun trans-
    12  fers including at a minimum the following:
    13    (a) Federal and state  laws  governing  firearm,  rifle,  and  shotgun
    14  transfers.
    15    (b)  How  to recognize, identify, respond, and report straw purchases,
    16  illegal purchases, and fraudulent activity.
    17    (c) How to recognize, identify, respond, and report an individual  who
    18  intends  to  use  a  firearm,  rifle,  or shotgun for unlawful purposes,
    19  including self-harm.
    20    (d) How to prevent, respond, and report theft or burglary of firearms,
    21  rifles, shotguns, and ammunition.
    22    (e) How to educate customers on rules of gun safety, including but not
    23  limited to the safe handling and storage of firearms,  rifles,  shotguns
    24  and ammunition.
    25    (f) Such other topics the superintendent deems necessary and appropri-
    26  ate.
    27    3.  No employee or agent of any retail dealer shall participate in the
    28  sale or disposition of firearms, rifles, or shotguns unless such  person
    29  is  at least twenty-one years of age and has first received the training
    30  required by this section.  The  superintendent  shall  promulgate  regu-
    31  lations  setting  forth  minimum  requirements  for  the  maintenance of
    32  records of such training.
    33    § 875-f.  Maintenance of records. Every  dealer  shall  establish  and
    34  maintain  a  book,  or  if the dealer should choose, an electronic-based
    35  record of purchase, sale, inventory, and other records at  the  dealer's
    36  place of business in such form and for such period as the superintendent
    37  shall  require,  and shall submit a copy of such records to the New York
    38  state police every April and October. Such records shall  at  a  minimum
    39  include the following:
    40    1.  the make, model, caliber or gauge, manufacturer's name, and serial
    41  number of all  firearms,  rifles  and  shotguns  that  are  acquired  or
    42  disposed  of  not later than one business day after their acquisition or
    43  disposition. Monthly backups of these records kept in a  book  shall  be
    44  maintained  in  a  secure  container  designed  to prevent loss by fire,
    45  theft, or flood. If the dealer chooses to maintain  an  electronic-based
    46  record system, those records shall be backed up on an external server or
    47  over the internet at the close of each business day;
    48    2.  all firearms, rifles and shotguns acquired but not yet disposed of
    49  shall be accounted for through an inventory  check  prepared  once  each
    50  month and maintained in a secure location;
    51    3.  firearm,  rifle and shotgun disposition information, including the
    52  serial numbers of firearms, rifles and shotguns sold, dates of sale, and
    53  identity of purchasers, shall be maintained and made  available  at  any
    54  time  to  government law enforcement agencies and to the manufacturer of
    55  the weapon or its designee; and

        A. 837--E                           4
     1    4. every dealer shall maintain records of criminal firearm, rifle  and
     2  shotgun  traces  initiated  by  the  federal bureau of alcohol, tobacco,
     3  firearms and explosives ("ATF"). All ATF Form 4473  transaction  records
     4  shall be retained on the dealer's business premises in a secure contain-
     5  er designed to prevent loss by fire, theft, or flood.
     6    §  875-g. Internal compliance, certification, and reporting.  1. Every
     7  dealer shall:
     8    (a) implement and maintain sufficient internal  compliance  procedures
     9  to ensure compliance with the requirements of this article; and
    10    (b)  annually  certify  to  the  superintendent  that  such dealer has
    11  complied with all of the requirements of this article.  The  superinten-
    12  dent  shall  by regulation determine the form and content of such annual
    13  certification.
    14    2. (a) The superintendent shall promulgate regulations requiring peri-
    15  odic inspections of not less than one inspection of every  dealer  every
    16  three years, during regular and usual business hours, by the division of
    17  state  police of the premises of every dealer to determine compliance by
    18  such dealer with the requirements of this article.  Every  dealer  shall
    19  provide  the  division of state police with full access to such dealer's
    20  premises for such inspections.
    21    (b) The superintendent shall prepare an annual report providing infor-
    22  mation on the number of dealers inspected annually, the number of  deal-
    23  ers  in  compliance with the requirements of this article, the number of
    24  dealers failing to comply with the requirements  of  this  article,  and
    25  other  information that the superintendent deems necessary and appropri-
    26  ate. The first report shall be delivered to the governor,  the  majority
    27  leader  of the senate and the speaker of the assembly, and shall be made
    28  available to the public on the division of state police website,  on  or
    29  before January first, two thousand twenty-four and annually thereafter.
    30    § 875-h. Rules and regulations. The superintendent may promulgate such
    31  additional rules and regulations as the superintendent shall deem neces-
    32  sary  to prevent firearms, rifles, and shotguns from being diverted from
    33  the legal stream of commerce.
    34    § 875-i. Violations. Any person, firm, or  corporation  who  knowingly
    35  violates  any  provision  of  this  article shall be guilty of a class A
    36  misdemeanor punishable as provided for in the penal law.
    37    § 2. Subdivisions 11 and 12 of section 400.00 of the penal law, subdi-
    38  vision 11 as amended by chapter 1 of the laws of 2013 and subdivision 12
    39  as amended by chapter 129 of the laws of 2019, are amended  to  read  as
    40  follows:
    41    11. License: revocation and suspension. (a) The conviction of a licen-
    42  see  anywhere  of  a felony or serious offense or a licensee at any time
    43  becoming ineligible to obtain a license under this section shall operate
    44  as a revocation of the license. A license may be revoked or suspended as
    45  provided for in section 530.14 of the criminal procedure law or  section
    46  eight  hundred forty-two-a of the family court act. Except for a license
    47  issued pursuant to section 400.01 of this  article,  a  license  may  be
    48  revoked  and  cancelled  at any time in the city of New York, and in the
    49  counties of Nassau and Suffolk, by the licensing officer, and  elsewhere
    50  than  in  the  city  of  New  York by any judge or justice of a court of
    51  record; a license issued pursuant to section 400.01 of this article  may
    52  be  revoked  and  cancelled  at any time by the licensing officer or any
    53  judge or justice of a court of record. A license to engage in the  busi-
    54  ness  of  dealer  may  be  revoked or suspended for any violation of the
    55  provisions of article thirty-nine-BB of the general  business  law.  The
    56  official  revoking  a  license shall give written notice thereof without

        A. 837--E                           5
     1  unnecessary delay to the executive department, division of state police,
     2  Albany, and shall also notify immediately the  duly  constituted  police
     3  authorities of the locality.
     4    (b) Whenever the director of community services or his or her designee
     5  makes  a  report pursuant to section 9.46 of the mental hygiene law, the
     6  division of criminal justice services  shall  convey  such  information,
     7  whenever  it  determines that the person named in the report possesses a
     8  license issued pursuant to this section, to  the  appropriate  licensing
     9  official, who shall issue an order suspending or revoking such license.
    10    (c)  In  any  instance  in  which  a  person's license is suspended or
    11  revoked under paragraph (a) or (b)  of  this  subdivision,  such  person
    12  shall  surrender  such license to the appropriate licensing official and
    13  any and all firearms, rifles, or shotguns owned  or  possessed  by  such
    14  person  shall be surrendered to an appropriate law enforcement agency as
    15  provided in subparagraph (f)  of  paragraph  one  of  subdivision  a  of
    16  section  265.20  of  this  chapter.  In the event such license, firearm,
    17  shotgun, or rifle is not surrendered, such items shall  be  removed  and
    18  declared  a  nuisance  and  any  police  officer or peace officer acting
    19  pursuant to his or her special duties is authorized to  remove  any  and
    20  all such weapons.
    21    12.  Records  required  of gunsmiths and dealers in firearms. [Any] In
    22  addition to the requirements set forth in article thirty-nine-BB of  the
    23  general  business  law,  any  person  licensed  as gunsmith or dealer in
    24  firearms shall keep a record book approved as to  form,  except  in  the
    25  city  of  New York, by the superintendent of state police. In the record
    26  book shall be entered at the  time  of  every  transaction  involving  a
    27  firearm the date, name, age, occupation and residence of any person from
    28  whom  a  firearm  is received or to whom a firearm is delivered, and the
    29  calibre, make, model, manufacturer's name and serial number, or if none,
    30  any other distinguishing number or identification mark on such  firearm.
    31  Before  delivering  a  firearm to any person, the licensee shall require
    32  him to produce either a license valid under this  section  to  carry  or
    33  possess  the  same,  or  proof  of  lawful authority as an exempt person
    34  pursuant to section 265.20 of this chapter and either (a)  the  National
    35  Instant  Criminal  Background  Check  System (NICS) or its successor has
    36  issued a "proceed" response to the licensee, or (b) thirty calendar days
    37  have elapsed since the date the licensee contacted NICS  to  initiate  a
    38  national instant criminal background check and NICS has not notified the
    39  licensee  that  the  transfer  of  the  firearm to such person should be
    40  denied. In addition, before delivering a firearm to a peace officer, the
    41  licensee shall verify that person's status as a peace officer  with  the
    42  division  of  state police. After completing the foregoing, the licensee
    43  shall remove and retain the attached coupon and enter in the record book
    44  the date of such license, number, if any,  and  name  of  the  licensing
    45  officer,  in the case of the holder of a license to carry or possess, or
    46  the shield or other number, if any, assignment and department,  unit  or
    47  agency, in the case of an exempt person. The original transaction report
    48  shall  be  forwarded  to the division of state police within ten days of
    49  delivering a firearm to any person, and a duplicate copy shall  be  kept
    50  by  the  licensee. The superintendent of state police may designate that
    51  such record shall be completed and transmitted  in  electronic  form.  A
    52  dealer  may  be granted a waiver from transmitting such records in elec-
    53  tronic form if the superintendent determines that such dealer is incapa-
    54  ble of such transmission due to technological limitations that  are  not
    55  reasonably  within  the  control  of  the  dealer,  or other exceptional
    56  circumstances demonstrated by the dealer, pursuant to a  process  estab-

        A. 837--E                           6
     1  lished  in  regulation,  and  at  the  discretion of the superintendent.
     2  Records assembled or collected for purposes of inclusion in the database
     3  created pursuant to section 400.02 of this article shall not be  subject
     4  to  disclosure  pursuant  to article six of the public officers law. The
     5  record book shall be maintained on the premises mentioned and  described
     6  in  the license and shall be open at all reasonable hours for inspection
     7  by any peace officer, acting pursuant to his special duties,  or  police
     8  officer.  In  the event of cancellation or revocation of the license for
     9  gunsmith or dealer in firearms,  or  discontinuance  of  business  by  a
    10  licensee,  such  record  book  shall  be  immediately surrendered to the
    11  licensing officer in the city of New York, and in the counties of Nassau
    12  and Suffolk, and elsewhere in the state  to  the  executive  department,
    13  division of state police.
    14    § 3. Severability. If any clause, sentence, paragraph, section or part
    15  of  this act shall be adjudged by any court of competent jurisdiction to
    16  be invalid, such judgment shall not affect,  impair  or  invalidate  the
    17  remainder thereof, but shall be confined in its operation to the clause,
    18  sentence,  paragraph,  section  or part thereof directly involved in the
    19  controversy in which such judgment shall have been rendered.
    20    § 4. This act shall take effect on the one hundred eightieth day after
    21  it shall have become a law. Effective immediately, the addition,  amend-
    22  ment  and/or  repeal of any rule or regulation for the implementation of
    23  section two of this act on its effective date are authorized to be  made
    24  on or before such effective date.
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