S T A T E O F N E W Y O R K
________________________________________________________________________
8397
2011-2012 Regular Sessions
I N A S S E M B L Y
June 15, 2011
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Introduced by M. of A. ORTIZ -- read once and referred to the Committee
on Economic Development
AN ACT to amend the alcoholic beverage control law, in relation to
flavored malt beverages and wine products, to repeal section 54-a of
the alcoholic beverage control law, in relation to the sale of beer
and wine products at retail for consumption off the premises, and
section 79-a of the alcoholic beverage control law, in relation to
authorization to sell wine products by certain licensees for consump-
tion off the premises
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 3 of section 3 of the alcoholic beverage
control law is amended to read as follows:
3. "Beer" means and includes any fermented beverages of any name or
description manufactured from malt, wholly or in part, or from any
substitute therefor. THE TERM BEER SHALL INCLUDE FLAVORED MALT BEVERAG-
ES.
S 2. Section 3 of the alcoholic beverage control law is amended by
adding a new subdivision 12-b-1 to read as follows:
12-B-1. "FLAVORED MALT BEVERAGE" MEANS AND INCLUDES ANY ALCOHOLIC
BEVERAGE OF ANY NAME OR DESCRIPTION THAT IS MANUFACTURED FROM MALT,
WHOLLY OR IN PART, OR FROM ANY SUBSTITUTE THEREFOR INCLUDING, BUT NOT
LIMITED TO, LIQUOR, SPIRIT OR WINE; AND CONTAINING MORE THAN ONE PER
CENTUM SUGAR BY VOLUME WHICH IS MANUFACTURED WITH THE ADDITION OF
FLAVORINGS OR OTHER INGREDIENTS INCLUDING, BUT NOT LIMITED TO, FRUIT,
FRUIT JUICE OR FRUIT FLAVOR, OR HERBS, NUTS OR SPICES (INCLUDING, BUT
NOT LIMITED TO, CHOCOLATE, LICORICE OR VANILLA), OR STIMULANTS (INCLUD-
ING, BUT NOT LIMITED TO, CAFFEINE, GUARANA, GINSENG, TAURINE OR WORMWOOD
OIL). THE AUTHORITY MAY, PURSUANT TO SUBDIVISION FIFTEEN OF SECTION
SEVENTEEN OF THIS CHAPTER, FURTHER DEFINE THOSE ALCOHOLIC BEVERAGES THAT
SHALL BE INCLUDED WITHIN SUCH TERM. A FLAVORED MALT BEVERAGE IS A BEER.
NATURALLY FERMENTED OR TRADITIONALLY BREWED BEERS, SUCH AS ALES,
BITTERS, BROWNS, LAGERS, PORTERS, STOUTS, SEASONAL BEERS, WHEAT BEERS OR
OTHER SPECIALTY BEERS SHALL NOT BE DEEMED FLAVORED MALT BEVERAGES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11483-02-1
A. 8397 2
S 3. Section 17 of the alcoholic beverage control law is amended by
adding a new subdivision 15 to read as follows:
15. TO ESTABLISH RULES AND REGULATIONS FURTHER DEFINING THE TERM
"FLAVORED MALT BEVERAGE" IN ACCORDANCE WITH SUBDIVISION TWELVE-B-1 OF
SECTION THREE OF THIS CHAPTER. SUCH RULES AND REGULATIONS SHALL EXCLUDE
FROM SUCH TERM THOSE TRADITIONALLY BREWED BEERS AND MALT LIQUORS WHICH
HAVE SMALL AMOUNTS OF FRUIT, FRUIT JUICE, FRUIT FLAVOR OR OTHER NATURAL
HERBS OR SPICES ADDED DURING THE FERMENTATION PROCESS. HOWEVER, THE
AUTHORITY SHALL INCLUDE WITHIN SUCH TERM THOSE ALCOHOLIC BEVERAGES WHICH
CONTAIN FLAVORS OR CONSIST OF COLORS OR SWEETNESS LEVELS THAT WOULD
APPEAL TO PERSONS UNDER THE AGE OF TWENTY-ONE YEARS.
S 4. Subdivision 5 of section 50 of the alcoholic beverage control
law, as amended by chapter 519 of the laws of 1937, is amended to read
as follows:
5. Licenses to sell beer OTHER THAN FLAVORED MALT BEVERAGES at retail
for consumption off the premises; and
S 5. Section 53 of the alcoholic beverage control law, as amended by
chapter 361 of the laws of 1994, is amended to read as follows:
S 53. Wholesaler's license. 1. Any person may apply to the liquor
authority for a license to sell beer at wholesale. Such application
shall be in writing and verified and shall contain such information as
the liquor authority shall require. Such application shall be accompa-
nied by a check or draft for the amount required by this article for
such license. If the liquor authority shall grant the application it
shall issue a license in such form as shall be determined by its rules.
Such a license shall contain a description of the licensed premises and
in form and in substance shall be a license to the person therein
specifically designated to sell beer at wholesale in the premises there-
in specifically licensed to duly licensed wholesalers, retailers and
permittees in this state, and to sell or deliver beer to persons outside
the state pursuant to the laws of the place of such sale or delivery. A
wholesaler's license issued or renewed prior to July first, nineteen
hundred sixty, and thereafter renewed or transferred, shall authorize
the holder thereof to sell beer at retail to a person for consumption in
his home; provided, however, that regardless of the date issued, renewed
or transferred, a wholesaler's license issued to a brewer or to the
wholly-owned subsidiary of a brewer, shall authorize the holder thereof
to sell beer at retail to a person for consumption in his OR HER home.
2. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION, ON AND
AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION A WHOLESALER'S LICENSE
SHALL NOT AUTHORIZE THE HOLDER TO SELL FLAVORED MALT BEVERAGES TO A
PERSON AT RETAIL FOR CONSUMPTION IN HIS OR HER HOME. THE HOLDER OF A
WHOLESALER'S LICENSE THAT IS IN EFFECT ON THE EFFECTIVE DATE OF THIS
SUBDIVISION MAY CONTINUE TO SELL FLAVORED MALT BEVERAGES AT RETAIL TO A
PERSON FOR CONSUMPTION IN HIS OR HER HOME ONLY UNTIL THE EXPIRATION OF
THE THEN CURRENT TERM OF SUCH LICENSE. THE RENEWAL OF SUCH A LICENSE
SHALL NOT INCLUDE THE RIGHT TO SELL FLAVORED MALT BEVERAGES AT RETAIL TO
A PERSON FOR CONSUMPTION IN HIS OR HER HOME.
S 6. Section 53-a of the alcoholic beverage control law, as amended by
chapter 361 of the laws of 1994, is amended to read as follows:
S 53-a. Vendor's license. 1. In cities having a population of one
million or more, any individual person may apply for a license to sell
beer as a vendor. Such application shall be in writing, and verified,
and shall contain such information as the liquor authority shall
require. Such application shall be accompanied by a check or draft for
the amount required by this article for such license. If the liquor
A. 8397 3
authority shall grant the application it shall issue a license in such
form as shall be determined by its rules. Such a license shall contain a
description of the licensed premises and in form and in substance shall
be a license to the person therein specifically designated to sell beer
as a vendor in cities having a population of one million or more only,
from the premises therein specifically licensed. A vendor's license
shall authorize the holder thereof to sell beer at retail to be deliv-
ered by such vendor to a person for consumption in his OR HER home and
shall authorize the holder thereof to operate one vehicle for the deliv-
ery of beer, but shall not authorize the sale to any person or licensee
for resale.
2. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION, ON AND
AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION, A VENDOR'S LICENSE SHALL
NOT AUTHORIZE THE HOLDER TO SELL FLAVORED MALT BEVERAGES TO BE DELIVERED
BY SUCH VENDOR TO A PERSON FOR CONSUMPTION IN HIS OR HER HOME OR THE
RIGHT TO OPERATE A VEHICLE FOR DELIVERY OF FLAVORED MALT BEVERAGES. THE
HOLDER OF A VENDOR'S LICENSE THAT IS IN EFFECT ON THE EFFECTIVE DATE OF
THIS SUBDIVISION MAY CONTINUE TO SELL FLAVORED MALT BEVERAGES TO BE
DELIVERED BY SUCH VENDOR TO A PERSON FOR CONSUMPTION IN HIS OR HER HOME
AND TO OPERATE A VEHICLE FOR DELIVERY OF FLAVORED MALT BEVERAGES ONLY
UNTIL THE EXPIRATION OF THE THEN CURRENT TERM OF SUCH LICENSE. THE
RENEWAL OF SUCH A LICENSE SHALL NOT INCLUDE THE RIGHT TO SELL FLAVORED
MALT BEVERAGES TO BE DELIVERED BY SUCH VENDOR TO A PERSON FOR CONSUMP-
TION IN HIS OR HER HOME OR THE RIGHT TO OPERATE A VEHICLE FOR DELIVERY
OF FLAVORED MALT BEVERAGES.
S 7. The section heading of section 54 of the alcoholic beverage
control law is amended to read as follows:
License to sell beer OTHER THAN FLAVORED MALT BEVERAGES at retail for
consumption off the premises.
S 8. Section 54 of the alcoholic beverage control law is amended by
adding a new subdivision 6 to read as follows:
6. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION, ON AND
AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION, A LICENSE DESCRIBED IN
THIS SECTION SHALL NOT AUTHORIZE THE HOLDER TO SELL FLAVORED MALT BEVER-
AGES. THE HOLDER OF A LICENSE THAT IS IN EFFECT ON THE EFFECTIVE DATE OF
THIS SUBDIVISION MAY CONTINUE TO SELL FLAVORED MALT BEVERAGES UNTIL THE
EXPIRATION OF THE THEN CURRENT TERM OF SUCH LICENSE. THE RENEWAL OF SUCH
A LICENSE SHALL NOT INCLUDE THE RIGHT TO SELL FLAVORED MALT BEVERAGES.
S 9. Section 54-a of the alcoholic beverage control law is REPEALED.
S 10. Section 55-a of the alcoholic beverage control law is amended by
adding a new subdivision 3 to read as follows:
3. NOTWITHSTANDING ANY INCONSISTENT PROVISION OF THIS SECTION, ON AND
AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION, A LICENSE DESCRIBED IN
THIS SECTION SHALL NOT AUTHORIZE THE HOLDER TO SELL FLAVORED MALT BEVER-
AGES. THE HOLDER OF A LICENSE THAT IS IN EFFECT ON THE EFFECTIVE DATE OF
THIS SUBDIVISION MAY CONTINUE TO SELL FLAVORED MALT BEVERAGES UNTIL THE
EXPIRATION OF THE THEN CURRENT TERM OF SUCH LICENSE. THE RENEWAL OF SUCH
A LICENSE SHALL NOT INCLUDE THE RIGHT TO SELL FLAVORED MALT BEVERAGES.
S 11. Subdivision 3 of section 63 of the alcoholic beverage control
law is amended to read as follows:
3. Such license shall in form and in substance be a license to the
person specifically designated therein to sell liquor in the premises
specifically licensed at retail for off-premise consumption and shall
also include the privilege to sell wine, WINE PRODUCTS, AND FLAVORED
MALT BEVERAGES under the same terms and conditions without the payment
of any additional fee.
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S 12. Section 79-a of the alcoholic beverage control law is REPEALED.
S 13. Subdivision 2-a of section 100 of the alcoholic beverage control
law, as amended by chapter 249 of the laws of 2002, is amended to read
as follows:
2-a. No retailer shall employ, or permit to be employed, or shall
suffer to work, on any premises licensed for retail sale hereunder, any
person under the age of eighteen years, as a hostess, waitress, waiter,
or in any other capacity where the duties of such person require or
permit such person to sell, dispense or handle alcoholic beverages;
except that: (1) any person under the age of eighteen years and employed
by any person holding a grocery or drug store beer license shall be
permitted to handle and deliver [beer and wine products] for such licen-
see THE ALCOHOLIC BEVERAGES WHICH SUCH PERSON IS AUTHORIZED TO SELL
PURSUANT TO SUCH LICENSE, (2) any person under the age of eighteen
employed as a cashier by a person holding a grocery or drug store beer
license shall be permitted to record and receive payment for [beer and
wine product] sales OF SUCH ALCOHOLIC BEVERAGES when in the presence of
and under the direct supervision of a person eighteen years of age or
over, (2-a) any person under the age of eighteen years and employed by a
person holding a grocery store or drug store beer license as either a
cashier or in any other position to which handling of containers which
may have held alcoholic beverages is necessary, shall be permitted to
handle the containers if such have been presented for redemption in
accordance with the provisions of title ten of article twenty-seven of
the environmental conservation law, and (3) any person under the age of
eighteen years employed as a dishwasher, busboy, or other such position
as to which handling of containers which may have held alcoholic bever-
ages is necessary shall be permitted to do so under the direct super-
vision of a person of legal age to purchase alcoholic beverages in the
state.
S 14. Paragraph f of subdivision 1 of section 101-aaa of the alcoholic
beverage control law, as added by section 183 of part A of chapter 389
of the laws of 1997, is amended to read as follows:
f. "Retail licensee" means a person licensed pursuant to this chapter
who purchases beer and/or wine products for resale for on or off prem-
ises consumption[, except a person licensed to sell liquor and/or wine
for off premises consumption].
S 15. Section 101-aaa of the alcoholic beverage control law is amended
by adding a new subdivision 10 to read as follows:
10. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO AUTHORIZE THE SALE
OF WINE PRODUCTS OR FLAVORED MALT BEVERAGES FOR CONSUMPTION OFF PREMISES
EXCEPT BY A PERSON WHO HOLDS A LICENSE AUTHORIZING SUCH SALES.
S 16. All licenses to sell beer and wine products at retail for
consumption off the premises and all permits to sell wine products by
certain licensees for consumption off the premises issued prior to the
effective date of this act pursuant to any provision repealed by this
act and in force immediately prior to the taking effective of such
repeal shall continue in force until they expire or are revoked as if
the provisions under which they were issued had not been repealed.
S 17. Nothing in this act shall be deemed to impair the authority of
the state liquor authority to commence or maintain an action under
section 17 of the alcoholic beverage control law, nor to pursue or
defend any appeals of such actions.
S 18. This act shall take effect on the one hundred twentieth day
after it shall have become a law.