Senate Bill S3122

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3122

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 11, 2009
                               ___________

Introduced  by  Sen.  DIAZ  --  read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the agriculture and markets law, in relation  to  kosher
  for Passover product price gouging

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The agriculture and markets law is amended by adding a  new
section 201-k to read as follows:
  S  201-K.  KOSHER  FOR  PASSOVER  PRODUCT PRICE GOUGING. 1. DURING THE
PASSOVER SEASON, NO PARTY WITHIN THE CHAIN OF DISTRIBUTION OF KOSHER FOR
PASSOVER PRODUCTS SHALL SELL OR OFFER TO SELL ANY SUCH PRODUCTS  FOR  AN
AMOUNT  WHICH  REPRESENTS AN UNCONSCIONABLY EXCESSIVE PRICE. THE DEPART-
MENT IS HEREBY AUTHORIZED TO INVESTIGATE INSTANCES OF KOSHER  FOR  PASS-
OVER  PRODUCT  PRICE  GOUGING  DURING THE PASSOVER SEASON. SUCH INVESTI-
GATION SHALL INCLUDE, BUT NOT BE LIMITED TO, AN  ANNUAL  PASSOVER  PRICE
SURVEY  TO  EXAMINE  THE  PRICES OF KOSHER FOR PASSOVER PRODUCTS BEFORE,
DURING AND AFTER THE PASSOVER SEASON.
  2. WHETHER A PRICE IS UNCONSCIONABLY EXCESSIVE IS A  QUESTION  OF  LAW
FOR THE COURT.
  (A)  THE  COURT'S  DETERMINATION  THAT A VIOLATION OF THIS SECTION HAS
OCCURRED SHALL BE BASED ON ANY OF THE FOLLOWING FACTORS:  (I)  THAT  THE
AMOUNT  OF  THE  EXCESS IN PRICE IS UNCONSCIONABLY EXTREME; OR (II) THAT
THERE WAS AN EXERCISE OF UNFAIR LEVERAGE  OR  UNCONSCIONABLE  MEANS;  OR
(III)  A  COMBINATION  OF  BOTH FACTORS IN SUBPARAGRAPHS (I) AND (II) OF
THIS PARAGRAPH.
  (B) IN ANY PROCEEDING COMMENCED PURSUANT TO SUBDIVISION THREE OF  THIS
SECTION, PRIMA FACIE PROOF THAT A VIOLATION OF THIS SECTION HAS OCCURRED
SHALL INCLUDE EVIDENCE THAT:
  (I)  THE AMOUNT CHARGED REPRESENTS A GROSS DISPARITY BETWEEN THE PRICE
OF THE GOODS OR SERVICES WHICH WERE THE SUBJECT OF THE  TRANSACTION  AND
THEIR  VALUE  MEASURED  BY  THE  PRICE AT WHICH SUCH KOSHER FOR PASSOVER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04861-01-9
              

S. 3122                             2

PRODUCTS WERE SOLD OR OFFERED FOR SALE BY THE  DEFENDANT  IN  THE  USUAL
COURSE OF BUSINESS IMMEDIATELY PRIOR TO THE PASSOVER SEASON; OR
  (II)  THE  AMOUNT CHARGED GROSSLY EXCEEDED THE PRICE AT WHICH THE SAME
OR SIMILAR KOSHER FOR PASSOVER PRODUCTS WERE READILY OBTAINABLE BY OTHER
CONSUMERS IN THE TRADE AREA. A DEFENDANT MAY REBUT A  PRIMA  FACIE  CASE
WITH  EVIDENCE  THAT  ADDITIONAL  COSTS  NOT  WITHIN  THE CONTROL OF THE
DEFENDANT WERE IMPOSED ON THE DEFENDANT FOR THE PRODUCTS.
  3. WHERE A VIOLATION OF THIS SECTION IS ALLEGED TO HAVE OCCURRED,  THE
ATTORNEY GENERAL MAY APPLY IN THE NAME OF THE PEOPLE OF THE STATE OF NEW
YORK  TO  THE SUPREME COURT OF THE STATE OF NEW YORK WITHIN THE JUDICIAL
DISTRICT IN WHICH SUCH VIOLATIONS  ARE  ALLEGED  TO  HAVE  OCCURRED,  ON
NOTICE OF FIVE DAYS, FOR AN ORDER ENJOINING OR RESTRAINING COMMISSION OR
CONTINUANCE  OF  THE  ALLEGED UNLAWFUL ACTS. IN ANY SUCH PROCEEDING, THE
COURT SHALL IMPOSE A CIVIL PENALTY IN AN AMOUNT NOT TO EXCEED TEN  THOU-
SAND  DOLLARS  AND,  WHERE  APPROPRIATE,  ORDER RESTITUTION TO AGGRIEVED
CONSUMERS.
  4. THE COMMISSIONER SHALL PROMULGATE ANY ADDITIONAL  RULES  AND  REGU-
LATIONS  AS  ARE  NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION,
INCLUDING BUT NOT LIMITED TO THE ESTABLISHMENT OF A KOSHER FOR  PASSOVER
PRODUCTS HOTLINE FOR CONSUMERS TO REPORT PRICE COMPLAINTS.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.