STATE OF NEW YORK
________________________________________________________________________
432
2017-2018 Regular Sessions
IN SENATE
(Prefiled)
January 4, 2017
___________
Introduced by Sen. PERALTA -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection
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.
24 Outside New York City, long guns are sold without a permit. 64.4% of the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00061-01-7
S. 432 2
1 firearms recovered from crimes in New York in 2013 were found in New
2 York City. In 2011, ATF trace data showed that 90% of the traceable
3 guns used in crimes in the five boroughs were from out of state. State-
4 wide, in 2011, 68% of traced crime guns recovered in New York came from
5 out of state. A significant portion of guns involved in crimes upstate
6 originate within the state. For example, according to 2009 ATF crime gun
7 trace data, 69% of crime guns in the Buffalo area and 50% of crime guns
8 in the Syracuse area originated within New York state.
9 3. Youth are particularly at risk of being killed with guns. Accord-
10 ing to the Centers for Disease Control and Prevention, in 2010 alone,
11 116 children and teens (under the age of 19) died from gun violence in
12 New York state.
13 4. A substantial portion of illegal firearms are diverted to the ille-
14 gal market through licensed gun dealers. Rogue gun dealers play a key
15 role in this market. These rogue dealers funnel guns to the illegal
16 market through a variety of channels. One of the most common means is to
17 allow "straw purchases". A straw purchase occurs when a person purchases
18 a gun on behalf of a prohibited person. The ATF conducted an investi-
19 gation of gun trafficking from July 1996 to December 1998 and found that
20 almost 26,000 trafficked firearms were associated with investigations in
21 which there was a straw purchaser. Almost 50% of all trafficking inves-
22 tigations involved straw purchasers, with an average of 37 firearms
23 trafficked per investigation. Another issue, according to a 2008 report
24 by Mayors Against Illegal Guns, Inside Straw Purchasing: How Criminals
25 Get Guns Illegally, is that many traffickers return to the same store
26 again and again once they have identified it as one in which they can
27 make straw purchases easily. According to the ATF, 1% of gun dealers
28 are the source of almost 60% of crime guns.
29 5. Although most gun dealers operate their businesses legally and
30 responsibly, some gun dealers who are corrupt or maintain shoddy record-
31 keeping practices flood the streets with illegal weapons as a result of
32 their unrestricted access to new gun inventory and the unwillingness of
33 gun manufacturers to terminate their supply to these rogue dealers.
34 Current federal and state regulation has not curbed the business prac-
35 tice of illegal gun dealers. According to a 2004 study by Americans for
36 Gun Safety, of the 120 worst gun dealers in the country, namely those
37 dealers with an average of 500 crime guns traced to them, 96 were still
38 in operation.
39 6. Moreover, this problem is not limited to unlicensed sellers, and
40 clearly includes federal firearms licensees (FFLs). Indeed, although
41 FFLs were involved in under 10% of the trafficking investigations under-
42 taken by ATF, they were associated with the largest number of diverted
43 firearms--over 40,000 guns, which is nearly half of the total number of
44 trafficked firearms documented during the two-year period of the ATF's
45 investigation. Additionally, a 2010 report by Mayors Against Illegal
46 Guns indicated that several states which allow state authorities to
47 supplement the federal ATF inspection with routine inspections provide
48 law enforcement with more opportunities to uncover dealers in violation
49 of the law. These inspections also help identify dealers who exercise
50 lax oversight over their inventory and may lead to improved compliance
51 with federal, state, and local laws.
52 7. Current state law governing firearm dealers is inadequate to
53 prevent the diversion of firearms to the illegal marketplace. Addi-
54 tional protections that are needed include, but are not limited to,
55 better gun dealer internal compliance procedures, programs to eliminate
56 straw purchases, improved security measures, reducing youth access, and
S. 432 3
1 mandatory training for gun dealer employees. The additional protections
2 set forth in this act will greatly enhance the state's efforts to reduce
3 criminal activity in the state.
4 § 2. The general business law is amended by adding a new article 39-BB
5 to read as follows:
6 ARTICLE 39-BB
7 PREVENTING THE SALE OF FIREARMS,
8 RIFLES, AND SHOTGUNS TO CRIMINALS
9 Section 875-a. Definitions.
10 875-b. Reasonable measures to prevent sales and
11 transfers to criminals.
12 875-c. Security.
13 875-d. Access to firearms, rifles, and shotguns.
14 875-e. Location of firearm, rifle, and shotgun sales.
15 875-f. Employee training.
16 875-g. Maintenance of records.
17 875-h. Internal compliance and certification.
18 875-i. Rules and regulations.
19 875-j. Violations.
20 § 875-a. Definitions. For the purposes of this article:
21 1. "Dealer" means any person, firm, partnership, corporation, or
22 company who engages in the business of purchasing, selling, keeping for
23 sale, lending, leasing, or in any manner disposing of, any firearm,
24 rifle, or shotgun.
25 2. "Dispose of" means to dispose of, give, give away, lease, lend,
26 keep for sale, offer, offer for sale, sell, transfer, or otherwise
27 dispose of.
28 3. "Firearm" has the same meaning as that term is defined in subdivi-
29 sion three of section 265.00 of the penal law.
30 4. "Firearm exhibitor" means any person, firm, partnership, corpo-
31 ration, or company that exhibits, sells, offers for sale, transfers, or
32 exchanges firearms, rifles, or shotguns at a gun show.
33 5. "Retail dealer" means any dealer engaged in the retail business of
34 selling firearms, rifles, or shotguns.
35 6. "Rifle" has the same meaning as that term is defined in subdivision
36 eleven of section 265.00 of the penal law.
37 7. "Shotgun" has the same meaning as that term is defined in subdivi-
38 sion twelve of section 265.00 of the penal law.
39 8. "Straw purchase" means the purchase, or attempt to purchase, by a
40 person of a firearm, rifle, or shotgun for, on behalf of, or for the use
41 of another person, knowing that it would be unlawful for such other
42 person to possess such firearm, rifle, or shotgun, or an attempt to make
43 such a purchase.
44 9. "Straw purchaser" means a person who, knowing that it would be
45 unlawful for another person to possess a firearm, rifle, or shotgun,
46 purchases or attempts to purchase a firearm, rifle, or shotgun for, on
47 behalf of, or for the use of such other person.
48 10. "Superintendent" means the superintendent of state police.
49 § 875-b. Reasonable measures to prevent sales and transfers to crimi-
50 nals. Every dealer shall adopt reasonable measures to prevent firearms,
51 rifles, and shotguns from being diverted from the legal stream of
52 commerce, intentionally or otherwise, for later sale, transfer, or
53 disposal to individuals not legally entitled to purchase or possess such
54 weapons. Such measures shall include, but need not be limited to,
55 programs to eliminate sales to straw purchasers and to otherwise thwart
56 illegal gun trafficking. The superintendent shall develop programs
S. 432 4
1 designed to eliminate sales to straw purchasers and to otherwise thwart
2 illegal gun trafficking. Within six months of the effective date of this
3 article, the superintendent shall submit a report to the legislature
4 detailing such programs, including establishing minimum requirements for
5 such programs.
6 § 875-c. Security. Every dealer shall implement a security plan for
7 securing firearms, rifles and shotguns, including firearms, rifles and
8 shotguns in shipment. The plan must satisfy at least the following
9 requirements:
10 1. display cases shall be locked at all times except when removing a
11 single firearm, rifle or shotgun to show a customer, and customers shall
12 handle firearms, rifles or shotguns only under the direct supervision of
13 an employee;
14 2. all firearms, rifles and shotguns shall be secured, other than
15 during business hours, in a locked fireproof safe or vault in the
16 licensee's business premises or in a similar secured and locked area;
17 and
18 3. ammunition shall be stored separately from the firearms, rifles and
19 shotguns and out of reach of the customers.
20 4. (a) The permitted business location shall be secured by an alarm
21 system that is installed and maintained by an alarm company operator
22 properly licensed pursuant to state law. The alarm system must be moni-
23 tored by a central station listed by Underwriters Laboratories, Inc.,
24 and covered by an active Underwriters Laboratories, Inc. alarm system
25 certificate with a #3 extent of protection.
26 (b) Underwriters Laboratories, Inc. uses the term "extent of
27 protection" to refer to the amount of alarm protection installed to
28 protect a particular area, room or container. Systems with a #3 extent
29 of protection include complete protection for all accessible openings,
30 and partial motion and sound detection at certain other areas of the
31 premises. More information may be found in: Central Station Alarm Asso-
32 ciation, A Practical Guide to Central Station Burglar Alarm Systems (3rd
33 ed. 2005).
34 § 875-d. Access to firearms, rifles, and shotguns. Every retail dealer
35 shall exclude all persons under eighteen years of age from those
36 portions of its premises where firearms, rifles, shotguns, or ammunition
37 are stocked or sold, unless such person is accompanied by a parent or
38 guardian.
39 § 875-e. Location of firearm, rifle, and shotgun sales. Every dealer
40 shall sell or otherwise dispose of firearms, rifles, and shotguns only
41 at the location listed on the dealer's federal firearms license or at
42 gun shows.
43 § 875-f. Employee training. Every retail dealer shall provide training
44 to all employees and other personnel engaged in the retail sale of
45 firearms, rifles, and shotguns relating to:
46 1. the law governing firearm, rifle, and shotgun transfers by federal
47 firearms licensees and individuals;
48 2. how to recognize straw purchases and other attempts to purchase
49 firearms, rifles, or shotguns illegally; and
50 3. how to teach consumers rules of gun safety, including but not
51 limited to the safe handling and storage of firearms, rifles, and shot-
52 guns.
53 No employee or agent of any retail dealer shall participate in the
54 sale or disposition of firearms, rifles, or shotguns unless such person
55 is at least twenty-one years of age and has first received the training
56 required by this section. The superintendent shall promulgate regu-
S. 432 5
1 lations setting forth minimum requirements for the maintenance of
2 records of such training.
3 § 875-g. Maintenance of records. Every dealer shall establish and
4 maintain such purchase, sale, inventory, and other records at the deal-
5 er's place of business in such form and for such period as the super-
6 intendent shall require, and shall submit such records to the New York
7 state police every April and October. Such records shall at a minimum
8 include the following:
9 1. every dealer shall record the make, model, caliber or gauge, and
10 serial number of all rifles and shotguns that are acquired or disposed
11 of not later than one business day after their acquisition or disposi-
12 tion. Monthly backups of these records shall be maintained in a secure
13 container designed to prevent loss by fire, theft, or other mishap;
14 2. all rifles and shotguns acquired but not yet disposed of must be
15 accounted for through an inventory check prepared once each month and
16 maintained in a secure location;
17 3. rifle and shotgun sales information, including the serial numbers
18 of rifles and shotguns sold, dates of sale, and identity of purchasers,
19 shall be maintained and made available to government law enforcement
20 agencies and to the manufacturer of the weapon or its designee; and
21 4. every dealer shall maintain records of criminal rifle and shotgun
22 traces initiated by the federal bureau of alcohol, tobacco, firearms and
23 explosives ("ATF"). All ATF Form 4473 transaction records shall be
24 retained on the dealer's business premises in a secure container
25 designed to prevent loss by fire, theft, or other mishap.
26 § 875-h. Internal compliance and certification. 1. Every dealer shall:
27 (a) implement and maintain sufficient internal compliance procedures
28 to ensure compliance with the requirements of this article and all
29 applicable federal, state, and local laws and regulations governing the
30 sale, transfer, and disposal of firearms, rifles, and shotguns; and
31 (b) annually certify to the superintendent that such dealer has
32 complied with all of the requirements of this article. The superinten-
33 dent shall by regulation determine the form and content of such annual
34 certification.
35 2. The superintendent shall promulgate regulations establishing peri-
36 odic inspections, during regular and usual business hours, by the divi-
37 sion of state police of the premises of every dealer to determine
38 compliance by such dealer with the requirements of this article. Every
39 dealer shall provide the division of state police with full access to
40 such dealer's premises for such inspections.
41 § 875-i. Rules and regulations. The superintendent may promulgate such
42 additional rules and regulations as the superintendent shall deem neces-
43 sary to prevent firearms, rifles, and shotguns from being diverted from
44 the legal stream of commerce.
45 § 875-j. Violations. Any person, firm, or corporation who knowingly
46 violates any provision of this article shall be guilty of a class A
47 misdemeanor punishable as provided for in the penal law, and shall be
48 guilty of a class E felony for a second violation occurring within five
49 years of a prior conviction for a violation of any provision of this
50 article.
51 § 3. Subdivision 1 of section 400.00 of the penal law, as amended by
52 chapter 1 of the laws of 2013, is amended to read as follows:
53 1. Eligibility. No license shall be issued or renewed pursuant to this
54 section except by the licensing officer, and then only after investi-
55 gation and finding that all statements in a proper application for a
56 license are true. No license shall be issued or renewed except for an
S. 432 6
1 applicant (a) twenty-one years of age or older, provided, however, that
2 where such applicant has been honorably discharged from the United
3 States army, navy, marine corps, air force or coast guard, or the
4 national guard of the state of New York, no such age restriction shall
5 apply; (b) of good moral character; (c) who has not been convicted
6 anywhere of a felony or a serious offense; (d) who is not a fugitive
7 from justice; (e) who is not an unlawful user of or addicted to any
8 controlled substance as defined in section 21 U.S.C. 802; (f) who being
9 an alien (i) is not illegally or unlawfully in the United States or (ii)
10 has not been admitted to the United States under a nonimmigrant visa
11 subject to the exception in 18 U.S.C. 922(y)(2); (g) who has not been
12 discharged from the Armed Forces under dishonorable conditions; (h) who,
13 having been a citizen of the United States, has not renounced his or her
14 citizenship; (i) who has stated whether he or she has ever suffered any
15 mental illness; (j) who has not been involuntarily committed to a facil-
16 ity under the jurisdiction of an office of the department of mental
17 hygiene pursuant to article nine or fifteen of the mental hygiene law,
18 article seven hundred thirty or section 330.20 of the criminal procedure
19 law, section four hundred two or five hundred eight of the correction
20 law, section 322.2 or 353.4 of the family court act, or has not been
21 civilly confined in a secure treatment facility pursuant to article ten
22 of the mental hygiene law; (k) who has not had a license revoked or who
23 is not under a suspension or ineligibility order issued pursuant to the
24 provisions of section 530.14 of the criminal procedure law or section
25 eight hundred forty-two-a of the family court act; (l) in the county of
26 Westchester, who has successfully completed a firearms safety course and
27 test as evidenced by a certificate of completion issued in his or her
28 name and endorsed and affirmed under the penalties of perjury by a duly
29 authorized instructor, except that: (i) persons who are honorably
30 discharged from the United States army, navy, marine corps or coast
31 guard, or of the national guard of the state of New York, and produce
32 evidence of official qualification in firearms during the term of
33 service are not required to have completed those hours of a firearms
34 safety course pertaining to the safe use, carrying, possession, mainte-
35 nance and storage of a firearm; and (ii) persons who were licensed to
36 possess a pistol or revolver prior to the effective date of this para-
37 graph are not required to have completed a firearms safety course and
38 test; (m) who has not had a guardian appointed for him or her pursuant
39 to any provision of state law, based on a determination that as a result
40 of marked subnormal intelligence, mental illness, incapacity, condition
41 or disease, he or she lacks the mental capacity to contract or manage
42 his or her own affairs; and (n) concerning whom no good cause exists for
43 the denial of the license. No person shall engage in the business of
44 gunsmith or dealer in firearms unless licensed pursuant to this section,
45 and no person shall engage in the business of dealer in firearms unless
46 such person complies with the provisions of article thirty-nine-BB of
47 the general business law. An applicant to engage in such business shall
48 also be a citizen of the United States, more than twenty-one years of
49 age and maintain a place of business in the city or county where the
50 license is issued. For such business, if the applicant is a firm or
51 partnership, each member thereof shall comply with all of the require-
52 ments set forth in this subdivision and if the applicant is a corpo-
53 ration, each officer thereof shall so comply.
54 § 4. Subdivisions 11 and 12 of section 400.00 of the penal law, as
55 amended by chapter 1 of the laws of 2013, are amended to read as
56 follows:
S. 432 7
1 11. License: revocation and suspension. (a) The conviction of a licen-
2 see anywhere of a felony or serious offense or a licensee at any time
3 becoming ineligible to obtain a license under this section shall operate
4 as a revocation of the license. A license may be revoked or suspended as
5 provided for in section 530.14 of the criminal procedure law or section
6 eight hundred forty-two-a of the family court act. Except for a license
7 issued pursuant to section 400.01 of this article, a license may be
8 revoked and cancelled at any time in the city of New York, and in the
9 counties of Nassau and Suffolk, by the licensing officer, and elsewhere
10 than in the city of New York by any judge or justice of a court of
11 record; a license issued pursuant to section 400.01 of this article may
12 be revoked and cancelled at any time by the licensing officer or any
13 judge or justice of a court of record. A license to engage in the busi-
14 ness of dealer may be revoked or suspended for any violation of the
15 provisions of article thirty-nine-BB of the general business law. The
16 official revoking a license shall give written notice thereof without
17 unnecessary delay to the executive department, division of state police,
18 Albany, and shall also notify immediately the duly constituted police
19 authorities of the locality.
20 (b) Whenever the director of community services or his or her designee
21 makes a report pursuant to section 9.46 of the mental hygiene law, the
22 division of criminal justice services shall convey such information,
23 whenever it determines that the person named in the report possesses a
24 license issued pursuant to this section, to the appropriate licensing
25 official, who shall issue an order suspending or revoking such license.
26 (c) In any instance in which a person's license is suspended or
27 revoked under paragraph (a) or (b) of this subdivision, such person
28 shall surrender such license to the appropriate licensing official and
29 any and all firearms, rifles, or shotguns owned or possessed by such
30 person shall be surrendered to an appropriate law enforcement agency as
31 provided in subparagraph (f) of paragraph one of subdivision a of
32 section 265.20 of this chapter. In the event such license, firearm,
33 shotgun, or rifle is not surrendered, such items shall be removed and
34 declared a nuisance and any police officer or peace officer acting
35 pursuant to his or her special duties is authorized to remove any and
36 all such weapons.
37 12. Records required of gunsmiths and dealers in firearms. [Any] In
38 addition to the requirements set forth in article thirty-nine-BB of the
39 general business law, any person licensed as gunsmith or dealer in
40 firearms shall keep a record book approved as to form, except in the
41 city of New York, by the superintendent of state police. In the record
42 book shall be entered at the time of every transaction involving a
43 firearm the date, name, age, occupation and residence of any person from
44 whom a firearm is received or to whom a firearm is delivered, and the
45 calibre, make, model, manufacturer's name and serial number, or if none,
46 any other distinguishing number or identification mark on such firearm.
47 Before delivering a firearm to any person, the licensee shall require
48 him to produce either a license valid under this section to carry or
49 possess the same, or proof of lawful authority as an exempt person
50 pursuant to section 265.20 of this chapter. In addition, before deliver-
51 ing a firearm to a peace officer, the licensee shall verify that
52 person's status as a peace officer with the division of state police.
53 After completing the foregoing, the licensee shall remove and retain the
54 attached coupon and enter in the record book the date of such license,
55 number, if any, and name of the licensing officer, in the case of the
56 holder of a license to carry or possess, or the shield or other number,
S. 432 8
1 if any, assignment and department, unit or agency, in the case of an
2 exempt person. The original transaction report shall be forwarded to the
3 division of state police within ten days of delivering a firearm to any
4 person, and a duplicate copy shall be kept by the licensee. The super-
5 intendent of state police may designate that such record shall be
6 completed and transmitted in electronic form. A dealer may be granted a
7 waiver from transmitting such records in electronic form if the super-
8 intendent determines that such dealer is incapable of such transmission
9 due to technological limitations that are not reasonably within the
10 control of the dealer, or other exceptional circumstances demonstrated
11 by the dealer, pursuant to a process established in regulation, and at
12 the discretion of the superintendent. Records assembled or collected for
13 purposes of inclusion in the database created pursuant to section 400.02
14 of this article shall not be subject to disclosure pursuant to article
15 six of the public officers law. The record book shall be maintained on
16 the premises mentioned and described in the license and shall be open at
17 all reasonable hours for inspection by any peace officer, acting pursu-
18 ant to his special duties, or police officer. In the event of cancella-
19 tion or revocation of the license for gunsmith or dealer in firearms, or
20 discontinuance of business by a licensee, such record book shall be
21 immediately surrendered to the licensing officer in the city of New
22 York, and in the counties of Nassau and Suffolk, and elsewhere in the
23 state to the executive department, division of state police.
24 § 5. Severability. If any clause, sentence, paragraph, section or part
25 of this act shall be adjudged by any court of competent jurisdiction to
26 be invalid, such judgment shall not affect, impair or invalidate the
27 remainder thereof, but shall be confined in its operation to the clause,
28 sentence, paragraph, section or part thereof directly involved in the
29 controversy in which such judgment shall have been rendered.
30 § 6. This act shall take effect on the ninetieth day after it shall
31 have become a law; provided that the superintendent of state police is
32 authorized and directed to immediately adopt, amend, and promulgate such
33 rules and regulations as may be necessary and desirable to effectuate
34 the purposes of section two of this act.