S T A T E   O F   N E W   Y O R K
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                                  7337

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 31, 2009
                               ___________

Introduced by M. of A. ABBATE -- read once and referred to the Committee
  on Economic Development, Job Creation, Commerce and Industry

AN  ACT  to  amend the general business law, in relation to establishing
  minimum distances in which a refiner  may  operate  a  retail  service
  station;  and providing for the repeal of such provisions upon expira-
  tion thereof

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

  Section  1.  Section  199-a  of the general business law is amended by
adding a new subdivision 6 to read as follows:
  6. "REFINER" MEANS ANY PERSON WHO IS  ENGAGED  IN  THE  PRODUCTION  OR
REFINING  OF  CRUDE  OIL  TO PRODUCE MOTOR FUEL WHETHER SUCH REFINING OR
PRODUCTION OCCURS IN THIS STATE OR ELSEWHERE, AND INCLUDES ANY AFFILIATE
OF SUCH PERSON.
  S 2. The general business law is amended by adding a new section 199-o
to read as follows:
  S 199-O. REFINERS OPERATING RETAIL SERVICE STATIONS; DISTANCE  LIMITA-
TIONS.  1.  NO  REFINER WITH A FRANCHISE AGREEMENT WITH A RETAIL SERVICE
STATION DEALER OR DISTRIBUTOR SHALL OPERATE  A  RETAIL  SERVICE  STATION
WITH  COMPANY PERSONNEL EMPLOYED BY SUCH REFINER OR EMPLOYED BY A PARENT
COMPANY OF SUCH REFINER OR WITH ANY PERSON, FIRM OR CORPORATION MANAGING
A RETAIL SERVICE STATION ON A COMMISSION FEE ARRANGEMENT UNDER  CONTRACT
WITH  THE REFINER WHERE SUCH REFINER RETAINS OWNERSHIP OF THE MOTOR FUEL
WITHIN THE FOLLOWING DISTANCES AS MEASURED BY THE  MOST  DIRECT  SURFACE
TRANSPORTATION DISTANCE FROM THE DEALER FRANCHISEE:
  A. IN CITIES WITH A POPULATION OF ONE MILLION OR MORE, ONE MILE.
  B.  IN COUNTIES WITH A POPULATION OF NINE HUNDRED THOUSAND OR MORE NOT
WHOLLY CONTAINED WITHIN A CITY, ONE AND ONE-HALF MILES.
  C. FOR ALL OTHER COUNTIES, TWO MILES.
  2.  THE DISTANCE LIMITATIONS ESTABLISHED IN SUBDIVISION  ONE  OF  THIS
SECTION SHALL NOT BE APPLICABLE:
  A.  TO A RETAIL SERVICE STATION WHICH IS TO BE LOCATED ON THE OPPOSITE
SIDE OF A DIVIDED HIGHWAY FROM AN EXISTING DEALER OR  DISTRIBUTOR  FRAN-
CHISEE  RETAIL  SERVICE STATION. A DIVIDED HIGHWAY, FOR PURPOSES OF THIS

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07949-01-9

A. 7337                             2

SECTION, SHALL CONSIST OF TWO OR MORE ROADWAYS, WHICH ARE THIRTY FEET OR
MORE APART AND TO WHICH ACCESS AND EGRESS  IS  CONTROLLED  OR  TO  WHICH
ACCESS  OR  EGRESS  IS CONTROLLED FROM ENTRANCES THERETO OR EXITS THERE-
FROM;
  B.  TO A RETAIL SERVICE STATION WHICH IS TO BE LOCATED ON THE OPPOSITE
SIDE OF A NATURAL PHYSICAL BARRIER SUCH AS A  NAVIGABLE  BODY  OF  WATER
WHICH  PROVIDES  A  GEOGRAPHIC  SEPARATION  FROM  AN  EXISTING DEALER OR
DISTRIBUTOR FRANCHISEE RETAIL SERVICE STATION; OR
  C. TO A RETAIL SERVICE STATION WHICH IS TO BE LOCATED ON PROPERTY  THE
TITLE TO WHICH IS IN THE STATE OF NEW YORK OR AN INDIAN TRIBE.
  3.  A REFINER OR A DEALER OR DISTRIBUTOR FRANCHISEE MAY MAKE AN APPLI-
CATION TO AN ARBITRATOR, WHO SHALL BE APPOINTED WITH THE CONSENT OF BOTH
PARTIES, TO DETERMINE ANY DISPUTE ARISING OUT OF  THE  APPLICABILITY  OF
ANY  OF  THE EXEMPTIONS PROVIDED IN SUBDIVISION TWO OF THIS SECTION. ANY
ARBITRATION FEES SHALL BE EQUALLY DIVIDED AMONG THE PARTIES TO THE ARBI-
TRATION, AND SHALL OTHERWISE BE GOVERNED BY THE  PROVISIONS  OF  SECTION
ONE HUNDRED NINETY-NINE-G OF THIS ARTICLE.
  4. THE EFFECT OF THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION MAY
NOT BE MODIFIED OR DISCLAIMED BY ANY AGREEMENT, WHETHER WRITTEN OR ORAL,
AND  MAY  NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR AGREEMENT OR BY A
PRIOR COURSE OF DEALING OR USAGE OF  TRADE.  HOWEVER,  NOTHING  IN  THIS
ARTICLE  SHALL  PROHIBIT  A  REFINER  FROM  OPERATING AN EXISTING RETAIL
SERVICE STATION WITH COMPANY  PERSONNEL  EMPLOYED  BY  SUCH  REFINER  OR
EMPLOYED BY A PARENT COMPANY OF SUCH REFINER OR WITH ANY PERSON, FIRM OR
CORPORATION  MANAGING  A  RETAIL  SERVICE  STATION  ON  A COMMISSION FEE
ARRANGEMENT UNDER CONTRACT WITH THE REFINER WHERE  THE  REFINER  RETAINS
OWNERSHIP  OF  THE MOTOR FUEL, PROVIDED THAT SUCH RETAIL SERVICE STATION
WAS:
  A. SOLD FOR FAIR  COMPENSATION  TO  SUCH  REFINER  BY  THE  DEALER  OR
DISTRIBUTOR  FRANCHISEE.  "FAIR  COMPENSATION," FOR THE PURPOSES OF THIS
SUBDIVISION, SHALL INCLUDE, BUT NOT BE LIMITED  TO,  GOOD  WILL  OF  THE
DEALER  OR  DISTRIBUTOR  FRANCHISEE  WHICH MAY NOT BE FIXED OR OTHERWISE
DETERMINED IN THE FRANCHISE OR LEASE AGREEMENT BETWEEN THE  REFINER  AND
THE DEALER OR DISTRIBUTOR FRANCHISEE; OR
  B.  THE  SUBJECT OF AN AGREEMENT WHICH, PROVIDES THAT FOR FAIR COMPEN-
SATION, THE DEALER OR DISTRIBUTOR FRANCHISEE AGREES IN WRITING THAT  THE
REFINER MAY LOCATE A RETAIL SERVICE STATION IN VIOLATION OF THE DISTANCE
LIMITATIONS ESTABLISHED IN SUBDIVISION ONE OF THIS SECTION.
  S  3.  This  act shall take effect immediately and shall expire and be
deemed repealed three years after such effective date; provided,  howev-
er,  that  the  provisions  of  this  act shall not apply to: (a) retail
service stations operated by a refiner with company  personnel  employed
by  such refiner or employed by a parent company of such refiner or with
any person, firm or corporation managing a retail service station  on  a
commission  fee  arrangement  under  contract with the refiner where the
refiner retains ownership of the motor fuel on  the  effective  date  of
this  act;  (b)  any  retail  service  stations  for which a refiner has
applied for a building permit prior to the effective date  of  this  act
and  for which construction commences within 90 days after the effective
date of this act; and (c) any retail  service  stations  acquired  by  a
refiner  in  a  single transaction involving the purchase of ten or more
retail service stations and which are operated by a refiner with company
personnel, employed by such refiner within 90 days after  the  effective
date of this act.