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a. Except as provided in subdivision five of section one hundred ninety-two of the agriculture and markets law, it shall be unlawful for any person, in connection with the sale or offer for sale at retail of any petroleum products for use in motor vehicles or motor boats, to post or maintain at such place of sale any sign, placard or other display that states the price at which such petroleum products are sold or offered for sale, except as follows:
1. The price on such sign, placard or other display shall be stated by the unit of the measure at which such petroleum products are customarily sold at retail and shall include all applicable taxes;
2. The name, trade name, brand, mark or symbol, and grade or quality classification, if any, and method of processing of such petroleum products shall be clearly stated on such sign, placard or other display, and, if such petroleum products are sold without identification by name, trade name, brand, mark or symbol, such sign, placard or other display shall refer clearly to such petroleum products as unbranded;
3. In relation to the sale of gasoline for use in motor vehicles or motor boats, the price for the lowest grade of gasoline offered for sale shall be stated; and
4. Where the price for purchases made with cash or other specified form of payment is less than the price for purchases made with any other form of payment, such sign, poster, or placard shall state the price for each type of accepted payment.
b. A retail dealer shall only sell petroleum products at the price stated on any sign, placard or other display subject to subdivision a of this section. It shall be unlawful to raise the price stated on any sign, placard or other display subject to subdivision a of this section for at least 24 hours.
c. All numbers referring to price shall be the same height, width and thickness. Identification of the petroleum products offered for sale, and any non-numerical language distinguishing the prices charged for different forms of payment shall be in letters and numbers not less than one-half of the height, width and thickness of the numbers referring to price. Letters and numbers shall be black on a white background or displayed on an illuminated light-emitting diode sign.
d. Price per gallon indicator. Except as otherwise provided in article sixteen of the agriculture and markets law or in any rule or regulations promulgated thereunder, every gasoline or diesel motor fuel dispensing device shall be equipped with a price per gallon indicator that shall correspond with the price per gallon stated on any sign, placard or other display subject to subdivision a of this section.
e. Price indicator. Every gasoline or diesel motor fuel dispensing device shall be equipped with a total delivery indicator that shall record the correct price computed on the basis of the stated price per gallon and number of gallons delivered.
f. Notwithstanding the foregoing, subdivisions a, b and c of this section shall not apply to the posting of information and labeling of dispensing devices with respect to the lead content of gasoline for motor vehicles, which shall be governed by the provisions of subdivision d and e of section 20-673.1 of this subchapter and any rules or regulations promulgated thereunder, and subdivisions a, b and c of this section shall not apply to the posting of information and labeling of dispensing devices with respect to the octane rating of gasoline for motor vehicles, which shall be governed by the provisions of subdivision d of section 20-673.2 of this subchapter and any rules or regulations promulgated thereunder.
g. Every gasoline or diesel motor fuel dispensing device that is not in proper working order shall be marked with a sign, placard or other display according to specifications that the commissioner shall set by rule.
(Am. L.L. 2015/079, 9/2/2015, eff. 2/29/2016; Am. L.L. 2015/080, 9/2/2015, eff. 2/29/2016; Am. L.L. 2021/080, 7/18/2021, eff. 11/15/2021)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/080.
a. Every retail dealer of petroleum products shall maintain a daily sales record of all petroleum products for which prices are required to be posted as provided in section 20-672. Such records shall document the total volume of each such type of product sold each day, the unit price and the total daily amount of sales for each such type of product, and the date and time when a change to the price posting specified in section 20-672 was made.
b. All records required to be maintained shall be preserved in a manner that ensures their security and accessibility for inspection by the department for a period of one year.
c. All records required to be maintained shall be kept in chronological order, either in writing or electronically, and shall be available for inspection by the department as follows:
1. Records maintained in writing shall be retained at the premises where sales are made for each of the immediately preceding thirty days. Such records shall be made available on demand to the department at such premises. The records required to be kept for the period beyond the immediately preceding thirty days shall be presented at the offices of the department within five business days after demand to produce them has been served on a retail dealer.
2. Records maintained electronically shall be retained on the premises in a manner that displays the data for the entire period for which the electronic data system retains such data to permit an inspector to view it on demand on the device, and if such period is for less than the immediately preceding thirty days, then the data must be provided on demand in a chronologically ordered print-out for the full thirty days. A complete and accurate print out of the electronically maintained records that are required to be kept for the period beyond the immediately preceding thirty days shall be presented at the offices of the department within five business days after demand to produce them has been served on a retail dealer.
It shall be unlawful for any person to sell or offer for sale gasoline or other petroleum products for use in motor vehicles or motor boats in any manner so as to deceive or tend to deceive the purchaser as to the price, nature, quality or identity thereof; provided, however, that this section shall not apply to the prohibition of deceptive practices involving the representation of gasoline for motor vehicles as unleaded, which shall be governed by the provisions of section 20-673.1 of this subchapter and any rules or regulations promulgated thereunder, and provided, further, that this section shall not apply to the prohibition of deceptive practices involving the certification, display or representation of the octane rating of gasoline for motor vehicles, which shall be governed by the provisions of section 20-673.2 of this subchapter and any rules or regulations promulgated thereunder. It shall be unlawful for any person to sell or offer for sale from any pump, dispensing devices or container any gasoline or other petroleum products other than gasoline or other petroleum products manufactured or distributed by the manufacturer or distributor marketing such gasoline or other petroleum products under the name, trade name, brand, symbol or mark affixed to or contained on such pump, dispensing device or container, or to substitute, mix or adulterate gasoline or other petroleum products sold or offered for sale under a name, trade name, brand, symbol or mark.
a. Definitions. For purposes of this section, the following terms shall have the following meanings:
1. "Distributor" shall mean any person who transports or stores or causes the transportation or storage of gasoline at any point between any plant at which gasoline is produced and any retail outlet or facility of a wholesale purchaser-consumer.
2. "Gasoline" shall mean any fuel sold for use in motor vehicles and motor vehicle engines, and commonly or commercially known or sold as gasoline.
3. "Lead additive" shall mean any substance containing lead or lead compounds.
4. "Leaded gasoline" shall mean gasoline which is produced with the use of any lead additive or which contains more than five one hundredths of a gram of lead per gallon or more than five one thousandths of a gram of phosphorus per gallon.
5. "Refiner" shall mean any person who owns, leases, operates, controls or supervises a plant at which gasoline is produced.
6. "Reseller" shall mean any person who purchases gasoline identified by the corporate, trade or brand name of a refiner from such refiner or a distributor and resells or transfers it to retailers or wholesale purchaser-consumers displaying the refiner's brand, and whose assets or facilities are not substantially owned, leased or controlled by such refiner.
7. "Retail outlet" shall mean any establishment at which gasoline is sold or offered for sale for use in motor vehicles.
8. "Retailer" shall mean any person who owns, leases, operates, controls, or supervises a retail outlet.
9. "Unleaded gasoline" shall mean gasoline which is produced without the use of any lead additive and which contains not more than five one hundredths of a gram of lead per gallon and not more than five one thousandths of a gram of phosphorus per gallon.
10. "Wholesale purchaser-consumer" shall mean any organization that is an ultimate consumer of gasoline and which purchases or obtains gasoline from a supplier for use in motor vehicles and receives delivery of that product into a storage tank of at least five hundred fifty gallon capacity substantially under the control of that organization.
b. No distributor shall sell or transfer to any other distributor, retailer or wholesale purchaser-consumer any gasoline which is represented to be unleaded unless such gasoline meets the defined requirements for unleaded gasoline set forth in subdivision a of this section.
c. No retailer or employee or agent of a retailer, and no wholesale purchaser-consumer or employee or agent of a wholesale purchaser-consumer, shall sell, dispense or offer for sale gasoline represented to be unleaded unless such gasoline meets the defined requirements for unleaded gasoline set forth in subdivision a of this section.
d. Every retailer and wholesale purchaser-consumer shall affix to each gasoline pump stand in a location so as to be readily visible to the employees of such retailer or wholesale purchaser-consumer and to persons operating motor vehicles into which gasoline is to be dispensed a permanent legible label as follows: (i) for gasoline pump stands containing pumps for introduction of unleaded gasoline into motor vehicles, the label shall state: "Unleaded gasoline"; and (ii) for gasoline pump stands containing pumps for introduction of leaded gasoline into motor vehicles, the label shall state: "Contains lead anti-knock compounds"; provided, however, that where more than one grade of unleaded gasoline is offered for sale at a retail outlet, compliance with this subdivision is required for only one grade.
e. Notwithstanding any other provisions of law to the contrary, in any proceeding to adjudicate a violation of subdivision d of this section, a retailer or wholesale purchaser-consumer may be found not to be liable for violation thereof where it is shown that more than one grade of gasoline is dispensed from a gasoline pump or pump stand and it is demonstrated to the satisfaction of the commissioner that an alternative system of labeling furthers the objectives of such subdivision.
f. Any violation of subdivision c of this section by a retailer or wholesale purchaser-consumer shall also be deemed a violation by:
(1) the reseller, if any, and the refiner, where the corporate, trade or brand name of such refiner or any of its marketing subsidiaries appears on the pump stand or is displayed at the retail outlet or wholesale purchaser-consumer facility from which the gasoline was sold, dispensed or offered for sale. Except as provided in subdivision g of this section, the refiner shall be deemed in violation of subdivision c of this section irrespective of whether any other refiner, distributor, retailer or wholesale purchaser-consumer may have caused or permitted the violation; or
(2) the distributor who sold such retailer or wholesale purchaser-consumer gasoline contained in the storage tank which supplied the pump from which the gasoline was sold, dispensed or offered for sale which gave rise to the violation, where the corporate, trade or brand name of a refiner or any of its marketing subsidiaries does not appear on the pump stand and is not displayed at the retail outlet or wholesale purchaser-consumer facility from which the gasoline was sold, dispensed or offered for sale.
g. (1) In any case in which a retailer or wholesale purchaser-consumer and any refiner or distributor would be in violation or be deemed in violation of subdivision c of this section, the retailer or wholesale purchaser-consumer shall not be liable if he or she can demonstrate that the violation was not caused by such retailer or wholesale purchaser-consumer or his or her employee or agent.
(2) In any case in which a retailer or wholesale purchaser-consumer would be in violation of subdivision c of this section, and a reseller, if any, and any refiner would be deemed in violation under paragraph one of subdivision f of this section, the refiner shall not be deemed in violation if he or she can demonstrate:
(a) that the violation was not caused by such refiner or his or her employee or agent, and
(b) that the violation was caused by an act in violation of any law, other than the provisions of this section, or an act of sabotage, vandalism, or deliberate commingling of leaded and unleaded gasoline, whether or not such acts are violations of law in the jurisdiction where the violation of the requirements of this section occurred, or
(c) that the violation was caused by the action of a reseller or a retailer supplied by such reseller, in violation of a contractual undertaking imposed by the refiner on such reseller designed to prevent such action, and despite reasonable efforts by the refiner to insure compliance with such contractual obligation, such as periodic sampling, or
(d) that the violation was caused by the action of a retailer who is supplied directly by the refiner and not by a reseller, in violation of a contractual undertaking imposed by the refiner on such retailer designed to prevent such action, and despite reasonable efforts by the refiner to insure compliance with such contractual obligation, such as periodic sampling, or
(e) that the violation was caused by the action of a distributor subject to a contract with the refiner for transportation of gasoline from a terminal to a distributor, retailer or wholesale purchaser-consumer, in violation of a contractual undertaking imposed by the refiner on such distributor designed to prevent such action, and despite reasonable efforts by the refiner to insure compliance with such contractual obligation, such as periodic sampling, or
(f) that the violation was caused by a distributor (such as a common carrier) not subject to a contract with the refiner but engaged by him or her for transportation of gasoline from a terminal to a distributor, retailer or wholesale purchaser-consumer, despite reasonable efforts by the refiner to prevent such action, such as specification or inspection of equipment, or
(g) that the violation occurred at a wholesale purchaser-consumer facility; provided, however, that if such wholesale purchaser-consumer was supplied by a reseller, the refiner must demonstrate that the violation could not have been prevented by such reseller's compliance with a contractual undertaking imposed by the refiner on such reseller as provided in subparagraph c of this paragraph.
(h) For purposes of subparagraphs (b) through (f) of this paragraph, the term "was caused" means that the refiner must demonstrate by reasonably specific showings by direct or circumstantial evidence that the violation was caused or must have been caused by another.
(3) In any case in which a retailer or wholesale purchaser-consumer would be in violation of subdivision c of this section, and a reseller and any refiner would be deemed in violation under paragraph one of subdivision f of this section, the reseller shall not be deemed in violation if he or she can demonstrate that the violation was not caused by such reseller or his or her employee or agent.
(4) In any case in which a retailer or wholesale purchaser-consumer would be in violation of subdivision c of this section, and any distributor would be deemed in violation under paragraph two of subdivision f of this section, the distributor will not be deemed in violation if he or she can demonstrate that the violation was not caused by such distributor or his or her employee or agent.
a. For purposes of this section, the following terms shall have the following meanings:
1. "Gasoline" shall mean gasoline of a type distributed for use as a fuel in any motor vehicle.
2. "Distributor" shall mean any person who receives gasoline and distributes such gasoline to another person other than the ultimate purchaser.
3. "Retailer" shall mean any person who markets gasoline to the general public for ultimate consumption.
4. "Knock" shall mean the combustion of a fuel spontaneously in localized areas of a cylinder of a spark-ignition engine, instead of the combustion of such fuel progressing from the spark.
5. "Octane rating" shall mean the rating of the anti-knock characteristics of a grade or type of gasoline as determined by dividing by two the sum of the research octane number plus the motor octane number, unless another procedure is prescribed under paragraph three of 15 U.S.C. § 2823(c), in which case such term shall mean the rating of such characteristics as determined under the procedure so prescribed.
6. "Refiner" shall mean any person engaged in the refining of crude oil to produce gasoline or the importation of gasoline.
7. "Research octane number" and "motor octane number" shall have the meaning given such terms in the specifications of the American Society for Testing and Materials (ASTM) entitled "Standard Specifications for Automotive Gasoline" designated D 439 and, with respect to any grade or type of gasoline, are determined in accordance with test methods set forth in ASTM standard test methods designated D 2699 and D 2700, or such other meaning given such terms in any regulations promulgated by the federal trade commission pursuant to 15 U.S.C. § 2823.
8. "Ultimate purchaser" shall mean, with respect to any item, the first person who purchases such item for purposes other than resale.
b. Each refiner who distributes gasoline shall:
(1) determine the octane rating of any such gasoline; and
(2) if such refiner distributes such gasoline to any person other than the ultimate purchaser, certify, consistent with the determination made under paragraph one of this subdivision, the octane rating of such gasoline.
c. Each distributor who receives gasoline, the octane rating of which is certified to the distributor under this section, and distributes such gasoline to another person other than the ultimate purchaser shall certify to such other person the octane rating of such gasoline consistent with:
(1) the octane rating of such gasoline certified to such distributor; or
(2) if such distributor elects, in accordance with the regulations of the federal trade commission, the octane rating of such gasoline determined by such distributor.
d. Each retailer shall display at the point of sale to ultimate purchasers of gasoline, the octane rating of such gasoline, in accordance with the posting requirements and label specifications to be prescribed by the commissioner by regulation. Such octane rating shall be consistent with:
(1) the octane rating of such gasoline certified to such retailer under paragraph two of subdivision b of this section or under subdivision c of this section;
(2) if such retailer elects, in accordance with the regulations of the federal trade commission, the octane rating of such gasoline determined by such retailer for such gasoline; or
(3) if such retailer is a refiner, the octane rating of such gasoline determined under paragraph one of subdivision b of this section.
e. No person who distributes gasoline may make any representation respecting the anti-knock characteristics of such gasoline unless such representation fairly discloses the octane rating of such gasoline consistent with such gasoline's octane rating as certified to, or determined by, such person under the foregoing subdivisions of this section.
f. For purposes of this section, the octane rating of any gasoline shall be considered to be certified, displayed or represented by any person consistent with the rating certified to, or determined by, such person:
(1) in the case of gasoline which consists of a blend of two or more quantities of gasoline of differing octane ratings, only if the rating certified, displayed or represented by such person is the average of the octane ratings of such quantities, weighted by volume; or
(2) in the case of gasoline which does not consist of such a blend, only if the octane rating such person certifies, displays or represents is the same as the octane rating of such gasoline certified to, or determined by, such person.
a. The commissioner or the commissioner's designee, upon presentation of appropriate credentials, shall be authorized to enter upon or through the business premises of any person who sells or offers for sale gasoline or other petroleum products for use in motor vehicles or motor boats or any place where such gasoline or petroleum products is stored, for the purposes of making inspections, taking samples and conducting tests to determine compliance with the provisions of this subchapter or any rules or regulation promulgated hereunder.
b. Whenever the commissioner has reason to believe that a violation of this subchapter or any rule or regulation has occurred, he or she shall be authorized to make such investigation as he or she shall deem necessary, and to the extent necessary for this purpose, he or she may examine any person and may compel the production of all relevant records.
c. Any person subject to the provisions of this subchapter shall maintain such written records as the commissioner may prescribe by regulation.
a. (1) Any person who violates the provisions of this subchapter or any rules or regulations promulgated thereunder, other than sections 20-673.1 and 20-673.2 and any rules or regulations promulgated thereunder, shall be guilty of a misdemeanor punishable by a fine of not less than five hundred dollars nor more than ten thousand dollars, or by imprisonment for not more than thirty days, or by both such fine and imprisonment.
(2) Any person who violates the provisions of this subchapter or any rules or regulations promulgated thereunder, other than sections 20-673.1 and 20-673.2 and any rules or regulations promulgated thereunder, who has been found guilty of a violation of any such sections or such rules or regulations two times within the preceding twenty-four month period shall be guilty of a misdemeanor punishable by a fine of not less than one thousand dollars nor more than fifteen thousand dollars, or by imprisonment for not more than ninety days, or by both such fine and imprisonment.
(3) In addition to the penalties prescribed by paragraph one of subdivision a of this section, any person who violates the provisions of this subchapter or any rules or regulations promulgated thereunder, other than sections 20-673.1 and 20-673.2 and any rules or regulations promulgated thereunder, shall be liable for a civil penalty of not less than five hundred dollars nor more than ten thousand dollars; except that a person shall be subject to a civil penalty of zero dollars for a first violation of section 20-672 of this subchapter or any rule or regulation promulgated thereunder, if such person proves to the satisfaction of the department, within thirty days of the issuance of the notice of violation and prior to the commencement of an adjudication of the violation, that the violation has been cured. The submission of proof of a cure, if accepted by the department as proof that the violation has been cured, shall be deemed an admission of liability for all purposes. The option of presenting proof that the violation has been cured shall be offered as part of any settlement offer made by the department to a person who has received, for the first time, a notice of violation of section 20-672 of this subchapter or any rule or regulation promulgated thereunder. The department shall permit such proof to be submitted electronically or in person. A person may seek review, in the department's administrative tribunal, of the determination that the person has not submitted proof of a cure within fifteen days of receiving written notification of such determination.
(4) In addition to the penalties prescribed by paragraph two of subdivision a of this section, any person who violates the provisions of this subchapter or any rules or regulations promulgated thereunder, other than sections 20-673.1 and 20-673.2 and any rules or regulations promulgated thereunder, who has been found guilty of a violation of any such sections or such rules or regulations two times within the preceding twenty-four month period shall be liable for a civil penalty of not less than one thousand dollars nor more than fifteen thousand dollars.
b. Any person who violates the provisions of section 20-673.1 of this subchapter or any rules or regulations promulgated thereunder shall be liable for a civil penalty of not less than five hundred dollars nor more than ten thousand dollars.
c. (1) If, after providing due notice and an opportunity to be heard, the commissioner finds that a person has violated any of the provisions of section 20-673.2 of this subchapter or any rule or regulation promulgated thereunder, he or she shall be authorized to issue and serve upon such person an order requiring such person to cease and desist from engaging in the prohibited activity. Such order shall become final (i) upon the expiration of the time allowed for filing any administrative appeal which may be available and for commencing a proceeding pursuant to article seventy-eight of the civil practice law and rules or (ii) upon the exhaustion of all appeals arising out of the proceedings described in item (i) of this paragraph. Any person who violates an order of the commissioner issued hereunder after it has become final shall be liable for a civil penalty of not less than five hundred dollars nor more than ten thousand dollars for each violation.
(2) Any person who violates the provisions of section 20-673.2 of this subchapter or any rules or regulations promulgated thereunder with actual knowledge or knowledge fairly implied on the basis of objective circumstances that the act or practice underlying the violation is unfair or deceptive shall be liable for a civil penalty of not less than five hundred dollars nor more than ten thousand dollars; provided, however, that in order for any retailer to be held liable under this paragraph for violating any of the provisions of subdivisions d or e of such section 20-673.2, such retailer shall be shown to have had actual knowledge that the act or practice underlying the violation is unfair or deceptive. In determining the amount of any civil penalty imposed under this paragraph, the following shall be considered: the degree of culpability; any history of prior such conduct; ability to pay; effect on ability to continue to do business; and such other matters as justice may require.
d. In the case of a violation through continuing failure to comply with any of the provisions of this subchapter, any rules or regulations promulgated thereunder, or any order of the commissioner issued pursuant to subdivision c of this section, each day of the continuance of such failure shall be treated as a separate violation.
e. The civil penalties prescribed by the provisions of this section may be imposed by the commissioner after due notice and an opportunity to be heard have been provided or may be recovered in a civil action in the name of the city, commenced in a court of competent jurisdiction. In any civil action commenced to recover civil penalties for violation of a final order of the commissioner issued pursuant to subdivision c of this section, the supreme court of New York is empowered to grant such injunctive or equitable relief as the court deems appropriate in the enforcement of such final order.
f. Notwithstanding the foregoing, the commissioner shall cause to be published in the City Record once each month the name and business location of any person, firm or corporation that has been found to have violated any provision of sections 20-673.1 or 20-673.2 during the month immediately preceding.
(Am. L.L. 2021/080, 7/18/2021, eff. 11/15/2021)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2021/080.
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