S T A T E   O F   N E W   Y O R K
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                                  1110

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  M.  of  A.  DESTITO,  BENEDETTO,  BING, CAHILL, MILLMAN,
  SCHROEDER, MAGNARELLI -- Multi-Sponsored by -- M. of  A.  CHRISTENSEN,
  FARRELL, GOTTFRIED, KOON, MAGEE, MAYERSOHN, PHEFFER, SWEENEY, TOWNS --
  read  once  and referred to the Committee on Economic Development, Job
  Creation, Commerce and Industry

AN ACT to amend the alcoholic  beverage  control  law,  in  relation  to
  providing  for certain limited direct interstate shipments of beer and
  other malt beverages

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

  Section 1. The alcoholic beverage control law is amended by adding two
new sections 53-b and 53-c to read as follows:
  S 53-B. DIRECT INTERSTATE BEER OR MALT BEVERAGE SHIPMENTS.  1. AUTHOR-
IZATION.    NOTWITHSTANDING  ANY PROVISION OF LAW, RULE OR REGULATION TO
THE CONTRARY, ANY HOLDER OF A LICENSE TO MANUFACTURE BEER IN  ANY  OTHER
STATE WHO OBTAINS AN OUT-OF-STATE SHIPPER'S LICENSE, AS PROVIDED IN THIS
SECTION,  MAY  SHIP  BEER  AND OTHER MALT BEVERAGES SOLD BY SUCH LICENSE
HOLDER DIRECTLY TO A RESIDENT OF NEW YORK WHO  IS  AT  LEAST  TWENTY-ONE
YEARS  OF  AGE,  FOR  SUCH  RESIDENT'S  PERSONAL USE AND NOT FOR RESALE,
PROVIDED THE STATE IN WHICH SUCH PERSON IS SO  LICENSED  AFFORDS  LAWFUL
MEANS FOR SHIPMENTS OF BEER AND OTHER MALT BEVERAGES SOLD TO BE RECEIVED
BY  A RESIDENT THEREOF WHO IS AT LEAST TWENTY-ONE YEARS OF AGE, FOR SUCH
RESIDENT'S PERSONAL USE AND NOT FOR RESALE, FROM A  PERSON  LICENSED  IN
THIS  STATE  AS  A MANUFACTURER AND, PROVIDED FURTHER, THAT THE STATE IN
WHICH SUCH OUT-OF-STATE BREWING FACILITY IS LOCATED  AFFORDS  TO  A  NEW
YORK  STATE  BREWING  LICENSEE  RECIPROCAL  SHIPPING PRIVILEGES, MEANING
SHIPPING PRIVILEGES THAT ARE SUBSTANTIALLY SIMILAR TO  THE  REQUIREMENTS
IN  THIS SECTION. NO PERSON SHALL PLACE AN ORDER FOR SHIPMENT OF BEER OR
MALT BEVERAGES UNLESS THEY ARE TWENTY-ONE YEARS OF  AGE  OR  OLDER.  ANY
COMMON  CARRIER  WITH  A  PERMIT ISSUED PURSUANT TO THIS CHAPTER TO WHOM

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

                                                           LBD03444-01-9

A. 1110                             2

SUCH OUT-OF-STATE SHIPPER'S LICENSE IS PRESENTED IS AUTHORIZED  TO  MAKE
DELIVERY OF SHIPMENTS PROVIDED FOR HEREUNDER IN THIS STATE IN COMPLIANCE
WITH THIS SECTION.
  2.  LICENSE.  BEFORE  SENDING  ANY SHIPMENT HEREUNDER TO A RESIDENT IN
THIS STATE, THE OUT-OF-STATE SHIPPER SHALL FIRST OBTAIN A  LICENSE  FROM
THE NEW YORK STATE LIQUOR AUTHORITY UNDER PROCEDURES PRESCRIBED BY RULES
AND  REGULATIONS OF THE AUTHORITY AND AFTER PROVIDING THE AUTHORITY WITH
A TRUE COPY OF ITS CURRENT LICENSE TO MANUFACTURE  BEER  OR  OTHER  MALT
BEVERAGES  IN THE APPLICANT'S STATE OF DOMICILE ALONG WITH A COPY OF THE
APPLICANT'S FEDERAL BASIC PERMIT, IN THE CASE OF A BREWER, AFTER PAYMENT
OF AN ANNUAL FEE OF ONE HUNDRED DOLLARS. NOTWITHSTANDING THE  PROVISIONS
OF  SECTION  ONE  HUNDRED  TEN  OF  THIS  CHAPTER,  THE AUTHORITY IN ITS
DISCRETION, MAY EXCUSE AN OUT-OF-STATE BREWERY FROM  THE  SUBMISSION  OF
SUCH  INFORMATION.  SUCH  RULES  OR  REGULATIONS  SHALL  PROVIDE FOR THE
COLLECTION AND ANNUAL REPORTING  OF  INFORMATION  BY  SUCH  OUT-OF-STATE
SHIPPER WHICH AT A MINIMUM, SHALL INCLUDE:
  (A) THE NAME OF THE PURCHASER;
  (B) THE FULL MAILING ADDRESS OF THE PURCHASER INCLUDING ZIP CODE;
  (C) THE NAME, TOTAL QUANTITY, AND TOTAL PRICE OF PRODUCTS PURCHASED;
  (D) THE DATE PURCHASED;
  (E) THE NAME AND ADDRESS OF THE TRANSPORTER; AND
  (F) THE SIGNATURE OF THE PERSON FILING THE REPORT.
  3.  LICENSEE'S  RESPONSIBILITIES. THE HOLDER OF AN OUT-OF-STATE DIRECT
SHIPPER'S LICENSE SHALL:
  (A) SHIP BEER OR OTHER MALT BEVERAGE PRODUCED BY SUCH  LICENSE  HOLDER
DIRECTLY  TO  A NEW YORK STATE RESIDENT WHO IS AT LEAST TWENTY-ONE YEARS
OF AGE, FOR SUCH RESIDENT'S PERSONAL USE AND NOT FOR RESALE;
  (B) ENSURE THAT THE OUTSIDE OF EACH SHIPPING CONTAINER  USED  TO  SHIP
BEER OR OTHER MALT BEVERAGE DIRECTLY TO A NEW YORK RESIDENT IS CONSPICU-
OUSLY  LABELED WITH THE WORDS:  "CONTAINS BEER - SIGNATURE OF PERSON AGE
21 OR OLDER REQUIRED FOR DELIVERY -  NOT  FOR  RESALE,"  OR  WITH  OTHER
LANGUAGE SPECIFICALLY APPROVED BY THE NEW YORK STATE LIQUOR AUTHORITY;
  (C)  REPORT TO THE AUTHORITY SEMI-ANNUALLY, IN SUCH MANNER AND FORM AS
THE AUTHORITY MAY DIRECT, THE TOTAL AMOUNT  OF  BEER  OR  MALT  BEVERAGE
SHIPPED  INTO  THE  STATE  THE  PRECEDING  CALENDAR  YEAR; THE NAMES AND
ADDRESSES OF THE PURCHASERS TO  WHOM  THE  BEER  OR  MALT  BEVERAGE  WAS
SHIPPED,  THE  DATE  PURCHASED,  THE  NAME OF THE COMMON CARRIER USED TO
DELIVER THE BEER OR MALT BEVERAGE, AND THE QUANTITY AND  VALUE  OF  EACH
SHIPMENT;
  (D)  IN  CONNECTION  WITH THE ACCEPTANCE OF AN ORDER FOR A DELIVERY OF
BEER OR MALT BEVERAGES TO A NEW YORK RESIDENT, REQUIRE  THE  PROSPECTIVE
CUSTOMER  TO REPRESENT THAT HE OR SHE HAS ATTAINED THE AGE OF TWENTY-ONE
YEARS OR MORE AND THAT THE BEER OR MALT BEVERAGES BEING  PURCHASED  WILL
NOT BE RESOLD OR INTRODUCED INTO COMMERCE;
  (E) REQUIRE COMMON CARRIERS TO:
  (I)  REQUIRE  A  RECIPIENT, AT THE DELIVERY ADDRESS, UPON DELIVERY, TO
DEMONSTRATE THAT THE RECIPIENT IS AT LEAST TWENTY-ONE YEARS  OF  AGE  BY
PROVIDING  A  VALID  FORM  OF  PHOTOGRAPHIC IDENTIFICATION AUTHORIZED BY
SECTION SIXTY-FIVE-B OF THIS CHAPTER;
  (II) REQUIRE A RECIPIENT TO SIGN AN ELECTRONIC OR PAPER FORM OR  OTHER
ACKNOWLEDGEMENT OF RECEIPT AS APPROVED BY THE AUTHORITY; AND
  (III)  REFUSE DELIVERY WHEN THE PROPOSED RECIPIENT APPEARS TO BE UNDER
TWENTY-ONE YEARS OF AGE AND REFUSES TO PRESENT VALID  IDENTIFICATION  AS
REQUIRED BY SUBPARAGRAPH (I) OF THIS PARAGRAPH;
  (F)  FILE  RETURNS  WITH  AND  PAY TO THE NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE ALL STATE AND LOCAL SALES TAXES  AND  EXCISE  TAXES

A. 1110                             3

DUE  ON  SALES  INTO  THIS  STATE  IN  ACCORDANCE  WITH  THE  APPLICABLE
PROVISIONS OF THE TAX LAW RELATING TO SUCH TAXES,  THE  AMOUNT  OF  SUCH
TAXES  TO BE DETERMINED ON THE BASIS THAT EACH SALE IN THIS STATE WAS AT
THE LOCATION WHERE DELIVERY IS MADE;
  (G)  KEEP  RECORDS  FOR  THREE  YEARS  AND PERMIT THE AUTHORITY OR THE
DEPARTMENT  OF  TAXATION  AND  FINANCE  TO  PERFORM  AN  AUDIT  OF  SUCH
OUT-OF-STATE SHIPPER UPON REQUEST;
  (H)  EXECUTE  A WRITTEN CONSENT TO THE JURISDICTION OF THIS STATE, ITS
AGENCIES AND INSTRUMENTALITIES AND THE COURTS OF THIS  STATE  CONCERNING
ENFORCEMENT OF THIS SECTION AND ANY RELATED LAWS, RULES, OR REGULATIONS,
INCLUDING TAX LAWS, RULES OR REGULATIONS;
  (I)  PRIOR  TO  OBTAINING  AN  OUT-OF-STATE  DIRECT SHIPPER'S LICENSE,
OBTAIN A CERTIFICATE OF AUTHORITY PURSUANT  TO  SECTION  ELEVEN  HUNDRED
THIRTY-FOUR  OF THE TAX LAW AND A REGISTRATION AS A DISTRIBUTOR PURSUANT
TO SECTIONS FOUR HUNDRED TWENTY-ONE AND FOUR HUNDRED TWENTY-TWO  OF  THE
TAX LAW; AND
  (J)  REPORT TO THE AUTHORITY, IN A METHOD PRESCRIBED BY THE AUTHORITY,
WITHIN FIVE BUSINESS DAYS OF RECEIVING AN ORDER THAT IS GREATER THAN TWO
CASES OR FIVE HUNDRED SEVENTY-SIX OUNCES OF BEER, OR FIVE CASES OR FOUR-
TEEN HUNDRED FORTY OUNCES OF BEER WITHIN A THIRTY-DAY PERIOD.
  4. SITUS. DELIVERY OF A SHIPMENT IN THIS STATE BY  THE  HOLDER  OF  AN
OUT-OF-STATE  DIRECT  SHIPPER'S  LICENSE SHALL BE DEEMED TO CONSTITUTE A
SALE IN THIS STATE AT THE PLACE OF DELIVERY AND SHALL BE SUBJECT TO  ALL
EXCISE  TAXES LEVIED PURSUANT TO SECTION FOUR HUNDRED TWENTY-FOUR OF THE
TAX LAW AND ALL SALES TAXES LEVIED PURSUANT TO ARTICLES TWENTY-EIGHT AND
TWENTY-NINE OF SUCH LAW.
  5. TAXES. DELIVERY OF A SHIPMENT IN THIS STATE FROM THE HOLDER  OF  AN
OUT-OF-STATE  SHIPPER'S  LICENSE SHALL BE DEEMED TO CONSTITUTE A SALE IN
THIS STATE AT THE PLACE OF DELIVERY AND SHALL BE SUBJECT  TO  ALL  SALES
TAXES  LEVIED PURSUANT TO SECTION ELEVEN HUNDRED FIVE OF THE TAX LAW AND
ALL EXCISE TAXES LEVIED PURSUANT TO SECTION FOUR HUNDRED TWENTY-FOUR  OF
THE TAX LAW.
  6.  RENEWAL.  THE  OUT-OF-STATE SHIPPER MAY ANNUALLY RENEW ITS LICENSE
WITH THE AUTHORITY BY PAYING A ONE HUNDRED DOLLAR RENEWAL FEE, PROVIDING
THE AUTHORITY WITH A TRUE COPY OF ITS  CURRENT  LICENSE  IN  SUCH  OTHER
STATE  AS  AN ALCOHOLIC BEVERAGE MANUFACTURER AND BY COMPLYING WITH SUCH
OTHER PROCEDURES AS ARE PRESCRIBED BY RULE OF THE AUTHORITY.
  7. RULES AND REGULATIONS. THE AUTHORITY AND THE DEPARTMENT OF TAXATION
AND FINANCE MAY PROMULGATE  RULES  AND  REGULATIONS  TO  EFFECTUATE  THE
PURPOSES OF THIS SECTION.
  8.  ENFORCEMENT.  THE  AUTHORITY  MAY ENFORCE THE REQUIREMENTS OF THIS
SECTION INCLUDING THE REQUIREMENTS IMPOSED ON  THE  COMMON  CARRIER,  BY
ADMINISTRATIVE  PROCEEDINGS  TO  SUSPEND OR REVOKE AN OUT-OF-STATE SHIP-
PER'S LICENSE AND THE AUTHORITY MAY ACCEPT PAYMENT OF AN  ADMINISTRATIVE
FINE  IN  LIEU OF SUSPENSION, SUCH PAYMENTS TO BE DETERMINED BY RULES OR
REGULATIONS PROMULGATED BY THE AUTHORITY. IN ADDITION, THE AUTHORITY  OR
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK SHALL REPORT VIOLATIONS OF
THIS  SECTION,  WHERE  APPROPRIATE,  TO  THE UNITED STATES DEPARTMENT OF
TREASURY, TAX AND TRADE BUREAU, FOR ADMINISTRATIVE ACTION TO SUSPEND  OR
REVOKE THE FEDERAL BASIC PERMIT.
  9.  VIOLATIONS.  IN  ANY ACTION BROUGHT UNDER THIS SECTION, THE COMMON
CARRIER AND THE LICENSEE SHALL ONLY BE HELD LIABLE FOR THEIR INDEPENDENT
ACTS.
  S 53-C.   DIRECT INTRASTATE BEER OR  MALT  BEVERAGE  SHIPMENTS.    ANY
PERSON  HAVING APPLIED FOR AND RECEIVED A LICENSE AS A BREWER UNDER THIS
ARTICLE MAY SHIP BEER OR MALT BEVERAGES PRODUCED OR DISTRIBUTED BY  SUCH

A. 1110                             4

BREWER  DIRECTLY TO A NEW YORK STATE RESIDENT WHO IS AT LEAST TWENTY-ONE
YEARS OF AGE, FOR SUCH RESIDENT'S PERSONAL USE AND NOT FOR RESALE.
  1. LICENSEE'S SHIPPING RESPONSIBILITIES. NOTWITHSTANDING ANY PROVISION
TO  THE  CONTRARY CONTAINED IN THIS CHAPTER, ANY ABOVE REFERRED LICENSEE
SHALL:
  (A) IN THE CASE OF A BREWER, SHIP BEER OR MALT BEVERAGES  PRODUCED  OR
DISTRIBUTED BY SUCH LICENSE HOLDER DIRECTLY TO A NEW YORK STATE RESIDENT
WHO  IS  AT  LEAST TWENTY-ONE YEARS OF AGE, FOR SUCH RESIDENT'S PERSONAL
USE AND NOT FOR RESALE;
  (B) ENSURE THAT THE OUTSIDE OF EACH SHIPPING CONTAINER  USED  TO  SHIP
BEER OR MALT BEVERAGES DIRECTLY TO A NEW YORK STATE RESIDENT IS CONSPIC-
UOUSLY  LABELED WITH THE WORDS: "CONTAINS BEER - SIGNATURE OF PERSON AGE
21 OR OLDER REQUIRED FOR DELIVERY," OR WITH OTHER LANGUAGE  SPECIFICALLY
APPROVED BY THE NEW YORK STATE LIQUOR AUTHORITY;
  (C)  REPORT  TO THE AUTHORITY ANNUALLY, IN SUCH MANNER AND FORM AS THE
AUTHORITY MAY DIRECT THE TOTAL AMOUNT OF BEER OR MALT BEVERAGES  SHIPPED
IN THE STATE THE PRECEDING CALENDAR YEAR, THE NAMES AND ADDRESSES OF THE
PURCHASERS  TO  WHOM  THE  BEER  OR  MALT BEVERAGE WAS SHIPPED, THE DATE
PURCHASED, THE NAME OF THE COMMON CARRIER USED TO DELIVER  THE  BEER  OR
MALT BEVERAGE, AND THE QUANTITY AND VALUE OF EACH SHIPMENT;
  (D)  IN  CONNECTION  WITH THE ACCEPTANCE OF AN ORDER FOR A DELIVERY OF
BEER OR MALT BEVERAGE TO A NEW YORK RESIDENT,  REQUIRE  THE  PROSPECTIVE
CUSTOMER  TO REPRESENT THAT HE OR SHE HAS ATTAINED THE AGE OF TWENTY-ONE
YEARS OR MORE AND THAT THE BEER OR MALT BEVERAGE  BEING  PURCHASED  WILL
NOT BE RESOLD OR INTRODUCED INTO COMMERCE; AND
  (E) REQUIRE COMMON CARRIERS TO:
  (I)  REQUIRE  A  RECIPIENT, AT THE DELIVERY ADDRESS, UPON DELIVERY, TO
DEMONSTRATE THAT THE RECIPIENT IS AT LEAST TWENTY-ONE YEARS  OF  AGE  BY
PROVIDING  A  VALID  FORM  OF  PHOTOGRAPHIC IDENTIFICATION AUTHORIZED BY
SECTION SIXTY-FIVE-B OF THIS CHAPTER;
  (II) REQUIRE A RECIPIENT TO SIGN AN ELECTRONIC OR PAPER FORM OR  OTHER
ACKNOWLEDGMENT OF RECEIPT AS APPROVED BY THE AUTHORITY; AND
  (III)  REFUSE DELIVERY WHEN THE PROPOSED RECIPIENT APPEARS TO BE UNDER
TWENTY-ONE YEARS OF AGE AND REFUSES TO PRESENT VALID  IDENTIFICATION  AS
REQUIRED BY SUBPARAGRAPH (I) OF THIS PARAGRAPH.
  2.  VIOLATIONS.  IN  ANY ACTION BROUGHT UNDER THIS SECTION, THE COMMON
CARRIER AND THE LICENSEE SHALL ONLY BE HELD LIABLE FOR THEIR INDEPENDENT
ACTS.
  S 2. Paragraphs (a) and (b) of subdivision 1 of  section  102  of  the
alcoholic beverage control law, as amended by chapter 210 of the laws of
2005, are amended to read as follows:
  (a)   Except   as  provided  in  section  seventy-nine-c  AND  SECTION
FIFTY-THREE-B of this chapter, no alcoholic beverages shall  be  shipped
into  the  state  unless  the  same  shall be consigned to a person duly
licensed hereunder to traffic in alcoholic beverages.  This  prohibition
shall  apply to all shipments of alcoholic beverages into New York state
and includes importation or distribution for  commercial  purposes,  for
personal  use,  or otherwise, and irrespective of whether such alcoholic
beverages were purchased within or without the state, provided, however,
this prohibition shall not apply to any shipment consigned to a New York
resident who  has  personally  purchased  alcoholic  beverages  for  his
personal  use  while  outside  the United States for a minimum period of
forty-eight consecutive hours and which he has shipped as  consignor  to
himself  as  consignee.  Purchases  made  outside  the  United States by
persons other than the purchaser himself, regardless whether made as his

A. 1110                             5

agent, or by his authorization or on his behalf, are deemed not to  have
been personally purchased within the meaning of this paragraph.
  (b)   Except   as  provided  in  section  seventy-nine-c  AND  SECTION
FIFTY-THREE-B of this chapter, no common carrier or other  person  shall
bring  or  carry into the state any alcoholic beverages, unless the same
shall be consigned to a person duly licensed  hereunder  to  traffic  in
alcoholic  beverages, provided, however, that alcoholic beverages may be
delivered by a trucking permittee from a steamship or  railroad  station
or terminal to a New York resident who has personally purchased alcohol-
ic  beverages for his personal use while outside the United States for a
minimum period of  forty-eight  consecutive  hours,  and  which  he  has
shipped  as  consignor to himself as consignee, and except as so stated,
no trucking permittee shall accept for delivery,  deliver  or  transport
from  a  steamship or railroad station or terminal any shipment of alco-
holic beverages consigned to a non-licensed person having  his  home  or
business  in  New  York  state.    Purchases of alcoholic beverages made
outside the United States by persons other than the  purchaser  himself,
regardless  whether made as his agent, or by his authorization or on his
behalf, are deemed not to have  been  personally  purchased  within  the
meaning of this paragraph.
  S 3. Severability. If the provisions of this act or if any application
thereof  to any person or circumstance is held to be invalid, such inva-
lidity shall not affect other provisions or  applications  of  this  act
which  shall  be given effect without the invalid provisions or applica-
tion, and to this end the provisions of this act are severable.
  S 4. This act shall take effect on the ninetieth day  after  it  shall
have  become  a  law; provided, however, that effective immediately, the
addition, amendment and/or repeal of any rule  or  regulation  necessary
for  the implementation of this act on its effective date are authorized
and directed to be made and completed on or before such effective date.