S T A T E O F N E W Y O R K
________________________________________________________________________
7337
2009-2010 Regular Sessions
I N A S S E M B L Y
March 31, 2009
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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.