(A) to induce or attempt to induce or to procure or attempt to procure
the purchase of cigarettes at a price less than the cost of the agent
with respect to sales to wholesale dealers; or
(B) to induce or attempt to induce or to procure or attempt to procure
any rebate or concession of any kind or nature whatsoever in connection
with the purchase of cigarettes.
3. For any chain store:
(A) to induce or attempt to induce or to procure or attempt to procure
the purchase of cigarettes at a price less than the cost of the agent
with respect to sales to chain stores; or
(B) to induce or attempt to induce or to procure or attempt to procure
any rebate or concession of any kind or nature whatsoever in connection
with the purchase of cigarettes.
4. For any retail dealer:
(A) to induce or attempt to induce or to procure or attempt to procure
the purchase of cigarettes at a price less than the cost of the agent
for sales to retail dealers, if purchased from an agent, or at a price
less than the cost of the wholesale dealer; or
(B) to induce or attempt to induce or to procure or attempt to procure
any rebate or concession of any kind or nature whatsoever in connection
with the purchase of cigarettes.
5. (A) Upon a first violation of any of the provisions of this
article, after due notice and opportunity for a hearing, the
commissioner may suspend the license of any agent or wholesale dealer
for a period of not more than thirty days or impose a civil fine not to
exceed twenty thousand dollars or both such suspension and fine.
(B) Upon a second or subsequent violation committed within three years
following a prior finding of violation, after due notice and opportunity
for a hearing, the commissioner shall revoke the license of any agent or
wholesale dealer unless (i) the penalty imposed for the first violation
was a fine only; or (ii) the commissioner determines, on a showing by
the agent or wholesale dealer, that the second or subsequent violation
is due to reasonable cause or that such agent or wholesale dealer acted
in good faith, in which case the commissioner may suspend such license
for a period of not more than sixty days or impose a civil fine not to
exceed fifty thousand dollars or both such suspension and fine.
(C) In determining whether to suspend or revoke or in assessing the
amount of any fine under this paragraph the commissioner shall give due
consideration to the gravity of the violation, the size of the agent's
or wholesale dealer's business, the amount of the sale in violation of
this article below the minimum markup and the history of previous
violations. The penalties provided for in this paragraph shall be
determined, assessed, collected and paid in the manner provided in
section four hundred seventy-eight of this chapter, as if such penalties
were taxes imposed pursuant to this article.
6. Evidence of advertisement, offering to sell or sale of cigarettes
by any agent, wholesale dealer, chain store or retail dealer at less
than cost, or evidence of any offer of a rebate in price, or giving of a
rebate in price, or an offer of a concession, or the giving of a
concession of any kind or nature whatsoever in connection with the sale
of cigarettes, or the inducing or attempt to induce or to the procuring
or the attempt to procure the purchase of cigarettes at a price less
than cost of the agent, wholesale dealer, chain store or the retail
dealer, shall be prima facie evidence of intent to injure competitors
and to destroy or substantially lessen competition, or of intent to
avoid the collection or paying over of such taxes as may be required by
law.
(b) 1. An action may be maintained in the supreme court to prevent,
restrain or enjoin a violation, or threatened violation, of any of the
provisions of this article. Such an action may be instituted by any
person injured by any violation or threatened violation of this article,
or by the tax commission. If in such action a violation or threatened
violation of this article shall be established, the court shall enjoin
and restrain, or otherwise prohibit, such violation or threatened
violation. In such action it shall not be necessary that actual damages
to the plaintiff be alleged or proved, but where alleged and proved, the
plaintiff in said action, in addition to such injunctive relief and
costs of suit, including reasonable attorney's fees, shall be entitled
to recover from the defendant the actual damages sustained by such
plaintiff.
2. In the event that no injunctive relief is sought or required, any
person injured by a violation of this article may maintain an action for
damages and costs of suit in the supreme court as provided for in the
civil practice law and rules.
(c) Any contract, expressed or implied, made by any person in
violation of any of the provisions of this article is declared to be an
illegal and void contract, and no recovery thereon shall be had.
(d) The provisions of this article shall not be applicable to any sale
as to which the tax imposed by section four hundred seventy-one of this
chapter is not applicable or to a sale to the department of corrections
and community supervision of this state for sale to or use by
incarcerated individuals in institutions under the jurisdiction of such
department.