ALBANY - Unless the New York Association of Convenience Stores (NYACS) and its allies can now obtain a "stay" pending appeal, convenience 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. This represents an increase of 900 percent to 4,900 percent. The measure was specifically designed by public health advocates to force 40 percent of New York??s tobacco retailers to drop the category.

In a lawsuit filed by NYACS and four other retail trade associations challenging the constitutionality of the fee hike, Judge 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.

"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," Judge 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.

"The judge basically said we lack standing unless there are dead bodies on the floor," said NYACS President James Calvin, vowing to do everything possible to block the Tax Department from implementing the onerous fee increase.

Read Judge Feinman??s ruling (PDF).