Legislation

Search OpenLegislation Statutes
This entry was published on 2022-07-08
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 101-B
Unlawful discriminations prohibited; filing of schedules; schedule listing fund
Alcoholic Beverage Control (ABC) CHAPTER 3-B, ARTICLE 8
§ 101-b. Unlawful discriminations prohibited; filing of schedules;
schedule listing fund. 1. It is the declared policy of the state that it
is necessary to regulate and control the manufacture, sale, and
distribution within the state of alcoholic beverages for the purpose of
fostering and promoting temperance in their consumption and respect for
and obedience to the law. In order to eliminate the undue stimulation of
sales of alcoholic beverages and the practice of manufacturers and
wholesalers in granting discounts, rebates, allowances, free goods, and
other inducements to selected licensees, which contribute to a
disorderly distribution of alcoholic beverages, and which are
detrimental to the proper regulation of the liquor industry and contrary
to the interests of temperance, it is hereby further declared as the
policy of the state that the sale of alcoholic beverages should be
subjected to certain restrictions, prohibitions and regulations. The
necessity for the enactment of the provisions of this section is,
therefore, declared as a matter of legislative determination.

2. It shall be unlawful for any person who sells liquors or wines to
wholesalers or retailers

(a) to discriminate, directly or indirectly, in price, in discounts
for time of payment or in discounts on quantity of merchandise sold,
between one wholesaler and another wholesaler, or between one retailer
and another retailer purchasing liquor or wine bearing the same brand or
trade name and of like age and quality; (b) to grant, directly or
indirectly, any discount, rebate, free goods, allowance or other
inducement of any kind whatsoever, except a discount or discounts for
quantity of liquor or for quantity of wine and a discount not in excess
of one per centum for payment on or before ten days from date of
shipment.

3. (a) No brand of liquor or wine shall be sold to or purchased by a
wholesaler, irrespective of the place of sale or delivery, unless a
schedule, as provided by this section, is transmitted to and received by
the liquor authority, and is then in effect. Such schedule shall be
transmitted to the authority in such form, manner, medium and format as
the authority may direct; shall be deemed duly verified by the person
submitting such schedule upon its transmission to the authority; and
shall contain, with respect to each item, the exact brand or trade name,
capacity of package, nature of contents, age and proof where stated on
the label, the number of bottles contained in each case, the bottle and
case price to wholesalers, the net bottle and case price paid by the
seller, which prices, in each instance, shall be individual for each
item and not in "combination" with any other item, the discounts for
quantity, if any, and the discounts for time of payment, if any. Such
brand of liquor or wine shall not be sold to wholesalers except at the
price and discounts then in effect unless prior written permission of
the authority is granted for good cause shown and for reasons not
inconsistent with the purpose of this chapter. Such schedule shall be
transmitted by (1) the owner of such brand, or (2) a wholesaler selling
such brand and who is designated as agent for the purpose of filing such
schedule if the owner of the brand is not licensed by the authority, or
(3) with the approval of the authority, by a wholesaler, in the event
that the owner of the brand is unable to transmit a schedule or
designate an agent for such purpose. As used in this subdivision the
term "item" shall be deemed to include a sealed, pre-wrapped package
consisting of a sealed container of liquor, wine or wine product and
other merchandise reasonably used in connection with the preparation,
storage or service of liquor, wine or wine products provided that such
other merchandise shall not be potable or edible.

(b) No brand of liquor or wine shall be sold to or purchased by a
retailer unless a schedule, as provided by this section, is transmitted
to and received by the liquor authority, and is then in effect. Such
schedule shall be transmitted to the authority in such form, manner,
medium and format as the authority may direct; shall be deemed duly
verified by the person submitting such schedule upon its transmission to
the authority; and shall contain, with respect to each item, the exact
brand or trade name, capacity of package, nature of contents, age and
proof where stated on the label, the number of bottles contained in each
case, the bottle and case price to retailers, the net bottle and case
price paid by the seller, which prices, in each instance, shall be
individual for each item and not in "combination" with any other item,
the discounts for quantity, if any, and the discounts for time of
payment, if any. Such brand of liquor or wine shall not be sold to
retailers except at the price and discounts then in effect unless prior
written permission of the authority is granted for good cause shown and
for reasons not inconsistent with the purpose of this chapter. Such
schedule shall be transmitted by each manufacturer selling such brand to
retailers and by each wholesaler selling such brand to retailers.

(c) Provided however, nothing contained in this section shall require
any manufacturer or wholesaler to list in any schedule to be filed
pursuant to this section any item offered for sale to a retailer under a
brand which is owned exclusively by one retailer and sold at retail
within the state exclusively by such retailer.

(d) The authority may make available the schedules in paragraphs (a)
and (b) of this subdivision to all licensed wholesaler or retail
establishments by way of controlled internet access.

4. Each such schedule required by paragraph (a) of subdivision three
of this section shall be filed on or before the twenty-fifth day of each
month and the prices and discounts set forth therein shall become
effective on the first day of the second succeeding calendar month and
shall be in effect for such second succeeding calendar month. Each such
schedule required by paragraph (b) of subdivision three of this section
shall be filed on or before the fifth day of each month, and the prices
and discounts set forth therein shall become effective on the first day
of the calendar month following the filing thereof, and shall be in
effect for such calendar month. Within ten days after the filing of such
schedule the authority shall make them or a composite thereof available
for inspection by licensees. Within three business days after such
inspection is provided for, a wholesaler may amend his filed schedule
for sales to retailers in order to meet lower competing prices and
discounts for liquor or wine of the same brand or trade name, and of
like age and quality, filed pursuant to this section by any licensee
selling such brand, provided such amended prices are not lower and
discounts are not greater than those to be met. Any amended schedule so
filed shall become effective on the first day of the calendar month
following the filing thereof and shall be in effect for such calendar
month. All schedules filed shall be subject to public inspection, from
the time that they are required to be made available for inspection by
licensees, and shall not be considered confidential. Each manufacturer
and wholesaler shall retain in his licensed premises for inspection by
licensees a copy of his filed schedules as then in effect. The liquor
authority may make such rules as shall be appropriate to carry out the
purpose of this section.

4-a. No licensee shall refuse to sell any brand of liquor or wine to
any licensee authorized to purchase such brand of liquor or wine from
such licensee at the price listed in the schedule of prices of such
brand of liquor or wine required to be filed by such licensee with the
authority pursuant to this section, provided the purchaser pays cash
therefor, and except as herein provided.

(a) A schedule of prices to wholesalers filed by the brand owner or
its agent with the authority, pursuant to this section, may limit the
distribution or resale of a brand to wholesalers by the filing by the
brand owner or its agent with the authority of the names, addresses and
license numbers of such wholesalers. Such list shall be filed each month
together with the schedule of prices, and no name shall be added thereto
or removed therefrom after filing except with permission of the
authority.

(b) Only those wholesalers listed, pursuant to paragraph (a) of this
subdivision, may schedule the price to retailers for such brand, except
that when not inconsistent with the purpose of this section, the
authority may authorize any other wholesaler to schedule a price after
furnishing the quantity, source of purchase and any other information
the authority may require.

(c) When distribution or resale of a brand has been restricted,
pursuant to paragraph (a) of this subdivision, such brand shall not be
sold or purchased by any wholesalers who are not listed in accordance
with paragraph (a) of this subdivision.

(d) For good cause shown to the satisfaction of the authority,
permission may be granted for the filing of schedules limiting the
distribution or resale of a brand to retailers.

(e) Manufacturers and wholesalers may not require or compel retailers
to purchase other brands in order to be able to buy a particular brand.

(f) Nothing contained in this subdivision shall be construed as
authority for permitting any conduct or activity by any brand owner or
its agent or any wholesaler of liquor or wine proscribed by the
antitrust laws of this state or the United States.

(g) If any provision of any paragraph of this subdivision or any
subdivision of this section or the application thereof to any person or
circumstance shall be adjudged invalid by a court of competent
jurisdiction, such order or judgment shall be confined in its operation
to the controversy in which it was rendered and shall not affect or
invalidate the remainder of any provision of this subdivision or any
subdivision of this section or the application of any part thereof to
any other person or circumstance and to this end the provisions of each
paragraph of this subdivision and each subdivision of this section are
hereby declared to be severable.

5. (a) (i) Notwithstanding any other provision of law, each such
schedule required by paragraph (a) of subdivision three of this section
which is filed by a micro-winery, winery, or farm winery, or a class A,
A-1, B, B-1, C, or D distiller shall be filed annually on or before the
twenty-fifth day of November. The prices and discounts set forth therein
shall become effective on the first day of the second succeeding
calendar month and shall remain in effect for such twelve succeeding
calendar months, unless a price change filing is made pursuant to
subparagraph (ii) of this paragraph.

(ii) A micro-winery, winery, or farm winery, or a class A, A-1, B,
B-1, C, or D distiller licensee may file a price schedule change at any
time between the required annual filings. Each such price schedule
change shall be filed on or before the twenty-fifth day of each month
for a change in prices to become effective on the first day of the
second succeeding calendar month and shall remain in effect until the
effective date of the next filing.

(b) (i) Notwithstanding any other provision of law, each such schedule
required by paragraph (b) of subdivision three of this section which is
filed by a micro-winery, winery, or farm winery licensee, or a class A,
A-1, B, B-1, C, or D distiller shall be filed annually on or before the
fifth day of December. The prices and discounts set forth therein shall
become effective on the first day of the calendar month following the
filing thereof, and shall remain in effect for such twelve succeeding
calendar months, unless a price change filing is made pursuant to
subparagraph (ii) of this paragraph.

(ii) A micro-winery, winery, or farm winery, or a class A, A-1, B,
B-1, C, or D distiller licensee may file a price schedule change at any
time between the required annual filings. Each such price schedule
change shall be filed on or before the fifth day of each month for a
change in prices to become effective on the first day of the calendar
month following the filing thereof and shall remain in effect until the
effective date of the next filing.

(c) Within ten days after the filing of such schedules the authority
shall make them or a composite thereof available for inspection by
licensees. Within three business days after such inspection is provided
for, a wholesaler may amend his filed schedule for sales to retailers in
order to meet lower competing prices and discounts for wine of the same
brand or trade name, and of like age and quality, filed pursuant to this
section by any licensee selling such brand, provided such amended prices
are not lower and discounts are not greater than those to be met. Any
amended schedule so filed shall become effective on the first day of the
calendar month following the filing thereof and shall be in effect until
the effective date of the next filing.

(d) All schedules filed shall be subject to public inspection, from
the time that they are required to be made available for inspection by
licensees, and shall not be considered confidential. Each manufacturer
and wholesaler shall retain in his licensed premises for inspection by
licensees a copy of his filed schedules as then in effect. The liquor
authority may make such rules as shall be appropriate to carry out the
purpose of this subdivision.

6. For the purpose of raising the moneys necessary to defray the
expenses incurred in the administration of this section, on or before
the tenth day after this act becomes a law, there shall be paid to the
liquor authority by each manufacturer and wholesaler licensed under this
chapter to sell to retailers liquors and/or wines, a sum equivalent to
fifteen per centum of the annual license fee prescribed by this chapter
for each such licensee. A like sum shall be paid by each person
hereafter applying for any such license or the renewal of any such
license, and such sum shall accompany the application and the license
fee prescribed by this chapter for such license or renewal as the case
may be. In the event that any other law requires the payment of a fee by
any such licensee or applicant as set forth in this section for schedule
listing, then and in such event the total fee imposed by this section
and such other law or laws on each such licensee shall not exceed in the
aggregate a sum equivalent to fifteen per centum of the annual license
fee prescribed by this chapter for such license.

7. The authority may revoke, cancel or suspend any license issued
pursuant to this chapter, and may recover (as provided in section one
hundred twelve of this chapter) the penal sum of the bond filed by a
licensee, or both, for any sale or purchase in violation of any of the
provisions of this section or for making a false statement in any
schedule filed pursuant to this section or for failing or refusing in
any manner to comply with any of the provisions of this section.