Unless NYACS and its allies can now obtain a stay pending appeal, c-store operators who in the past paid $100 annually face registration fees of $1,000 to $5,000 per location per year depending on the store's annual gross sales of all products, the group [image-nocss] said. This represents an increase of 900% to 4,900%.
The measure was specifically designed by public health advocates to force 40% of New York's tobacco retailers to drop the category, according to NYACS.
In a lawsuit filed by NYACS and four other retail trade associations challenging the constitutionality of the fee hike, Feinman had issued a temporary restraining order last September pending his ruling on their motion for a permanent injunction. But rather than ruling on the merits in Friday's decision, he declared the trade groups lacked "standing" to bring the suit in the first place, said NYACS.
"There has been no showing of injury in fact to one of the plaintiff associations' member, to any one single retail dealer, or that any one of its members would be forced to close down their business," Feinman claimed.
However, the plaintiffs had filed with the court an affidavit from a c-store chain stating that its 2009 tobacco registration fees for 161 locations totaled $16,100, but that under the new fee schedule it would cost $422,000, jeopardizing the "fiscal viability" of many of its locations.
Andrew Curto, of Forchelli Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, which represents the Long Island Gasoline Retailers Association, one of the groups, said that papers submitted to the court included testimony from the owner of 161 Kwik Fill stations throughout New York, who stated the fees he would have to pay would rise from $16,100 a year to $422,000 a year under the new rules. (Warren, Pa.-based United Refining Co. operates the Kwik Fill and Red Apple Food Marts.)
"I don't know how much more specific we can get in our papers," Curto said. "We had a specific member identifying precisely how he is going to get hurt."
Curto said he is going to submit a motion to re-argue to Feinman, but in the meantime, the temporary restraining order keeping retailers from having to pay the new fees is no longer in effect.
"The judge basically said we lack standing unless there are dead bodies on the floor," said NYACS president James Calvin, who said he would "do everything possible to block the Tax Department from implementing the onerous fee increase."
Click hereto view the full-text of Feinman's ruling.
Members help make our journalism possible. Become a CSP member today and unlock exclusive benefits, including unlimited access to all of our content. Sign up here.