§ 101-AAA — Terms of sale; beer or wine products

New York § 101-AAA

• Jurisdiction: New York
• Law ABC: Alcoholic Beverage Control
• Art. 8: General Provisions

Text

§ 101-aaa. Terms of sale; beer or wine products. 1. As used in this\nsection:\n a. "Credit period" means the following:\n (1) A period beginning on Thursday, January first, two thousand four\nand ending on Sunday, January eighteenth, two thousand four; and\n (2) A period beginning on the first Monday succeeding the concluding\nday of each prior period and ending on the second succeeding Sunday\nthereafter.\n b. "Payment period" means the period ending on the twelfth day\nimmediately following the last day of any credit period.\n c. "Final payment date" means the last day of a payment period.\n d. "Delinquent notice date" means the third business day immediately\nfollowing a final payment date.\n e. "Notification date" means the day immediately following a\ndelinquent notice date.\n f. "Retail licensee" means a person licensed pursuant to this chapter\nwho purchases beer and/or wine products for resale for on or off\npremises consumption, except a person licensed to sell liquor and/or\nwine for off premises consumption.\n g. "Cash" means and includes currency and coin of the United States of\nAmerica, certified check, money order, electronic funds transfer, bank\nofficer's check or draft, or a check drawn on the account of the retail\nlicensee payable to the manufacturer or wholesaler and dated no later\nthan the date of delivery of the alcoholic beverages and which is\nhonored upon presentment for payment; provided, however, that if any\ncheck or other instrument described in this paragraph tendered by a\nretail licensee on the delinquent list is not honored upon presentment\nfor payment, the license of such retail licensee may be suspended for\nnot more than fifteen days for the first offense, and not more than\nsixty days for a subsequent offense, which penalty shall be in addition\nto the penalty provided for by the provisions of subdivision six of this\nsection, and provided further, that nothing in this section shall\nrequire a manufacturer or wholesaler to accept a check tendered by or\ndrawn on the account of a retail licensee on the delinquent list unless\nthe same has been certified.\n h. "Business payment card" means: (1) any credit card issued to a\nretail licensee for business or commercial use pursuant to an agreement\nthat allows the holder thereof to obtain goods and services on the\ncredit of the issuer or a debit card that provides access to a bank\naccount of a retail licensee; (2) a credit or debit card from an issuer\naccepted by the manufacturer or wholesaler as permitted by the authority\nin regulation; and (3) such credit card shall not include cards in which\na manufacturer or wholesaler has a financial interest or cards by which\ntheir use benefits a manufacturer or wholesaler. Such card must be\nissued in the same name as a retail licensee and registered to the same\naddress as the address on the retail license, or as otherwise permitted\nby the authority in regulation.\n i. "Final cash invoice amount" means the amount charged by a\nmanufacturer or wholesaler to a retail licensee pursuant to paragraphs\n(a) and (b) of subdivision two of this section.\n j. "Final business payment card invoice amount" means the amount\ncharged by a manufacturer or wholesaler to a retail licensee pursuant to\nparagraph (c) of subdivision two of this section; and shall equal the\nfinal cash invoice amount plus three percent of the final cash invoice\namount. The three percent represents the surcharges and fees that are\ncharged to the manufacturer or wholesaler by the business payment card\nissuer or a person or entity associated with the issuer.\n 2. No manufacturer or wholesaler licensed under this chapter shall\nsell or deliver any beer, mead, cider or wine products to any retail\nlicensee except as provided for in this section:\n (a) for cash to be paid at the time of delivery;\n (b) on terms requiring payment by such retail licensee for such beer,\nmead, cider, or wine products on or before the final payment date of any\ncredit period within which delivery is made; or\n (c) by business payment card; provided that a manufacturer or\nwholesaler that exercises reasonable diligence to ensure the sale\ncomports with the requirements of this section shall not be found to\nhave violated this subdivision where a retail licensee uses a credit\ncard other than a business payment card.\n Provided, however, that the sale of wine products, mead, or cider to a\nretail licensee by a wholesaler licensed under section fifty-eight,\nsixty-two, or seventy-eight of this chapter, or a licensed manufacturer\nof liquor, mead or wine or a cider producer's license, shall be governed\nby the provisions of section one hundred-one-aa of this article.\n 2-a. A manufacturer or wholesaler that accepts business payment cards\nshall clearly state the final cash invoice amount and the final business\npayment card invoice amount on an invoice provided to a retail licensee.\nNothing in this section shall preclude, or permit a manufacturer or\nwholesaler to prevent, a retail licensee that receives such an invoice\nfrom electing to use any other form of payment method permitted pursuant\nto subdivision two of this section following receipt of such invoice.\n 2-b. Nothing herein contained shall be construed to require any\nmanufacturer or wholesaler to accept business payment cards as a method\nof payment by any retail licensee, provided that if such payment method\nis made available it shall be available on equal terms to all retail\nlicensees.\n 3. Each such manufacturer and wholesaler shall, on or before the\nrespective delinquent notice date, give written notice of default, by\nfirst class mail, to all such licensees who have failed to make payment\nto the manufacturer or wholesaler on or before their final payment date\nfor beer or wine products sold or delivered to such licensees during the\nprevious credit period. Any such retail licensee receiving such notice\nshall not thereafter purchase beer or wine products except for cash\nuntil such time as the authority determines that its name shall not be\npublished on the delinquent list as provided in this subdivision, or\nuntil such time as the authority permits sales or deliveries to such\nlicensee as provided in subdivision five of this section. Each such\nmanufacturer and wholesaler shall file with the authority, on or before\neach notification date, copies of the notices sent by it to all\ndelinquent retail licensees, and in addition, if the authority shall so\nrequire, a written list setting forth the names and addresses of all\nsuch delinquent licensees. The authority, in its discretion, may extend\nfor a period not exceeding three days the date for giving written notice\nof default to delinquent retail licensees and extend for three days the\ndate for filing with the authority the copies of notices sent to such\nlicensees and/or the written list of delinquent retail licensees. The\nauthority shall, as soon as practicable after each notification date,\ncompile, publish, and furnish each manufacturer and wholesaler licensed\nunder this chapter a delinquent list containing the names and addresses\nof all retail licensees who have been reported by manufacturers and\nwholesalers pursuant to the provisions of this section or section one\nhundred one-aa of this article as having failed to make payment as\nrequired by this section or section one hundred one-aa of this article\nfor beer or wine products sold or delivered to them, and no such\nmanufacturer or wholesaler, on or after the fifth day after the receipt\nof such delinquent list, shall knowingly, wilfully or intentionally sell\nor deliver any beer or wine products to any such licensee whose name\nappears on such list, except for cash, until such time as the name of\nsuch licensee is removed therefrom, except as otherwise permitted by\nthis section. The receipt of a delinquent list by a manufacturer or\nwholesaler shall constitute knowledge of the names of the retail\nlicensees who have failed to make payment for beer or wine products as\nrequired by this section. The failure of any manufacturer or wholesaler\nto comply with the provisions of this section may, at the discretion of\nthe authority, subject the license of such manufacturer or wholesaler to\nsuspension for not more than five days for the first offense, and not\nmore than thirty days for a subsequent offense. The authority may\npublish the delinquent list on its website; provided, however, that\naccess shall be restricted to those manufacturers and wholesalers\nlicensed under this chapter. Such publication shall be considered\nreceipt thereof by all manufacturers and wholesalers.\n 4. In the event that any dispute shall exist between any manufacturer\nor wholesaler and a retail licensee to whom such manufacturer or\nwholesaler shall have sold beer or wine products, either as to the fact\nof payment or as to the amount due for such beer or wine products or as\nto the quantity of the beer or wine products sold or delivered, which\ndispute cannot be adjusted between them, the authority is authorized to\nreceive statements from each of the parties to such dispute as to the\nfacts and circumstances thereof and to determine whether or not such\nretail licensee's name should be published on the delinquent list.\n 5. The authority in the case of a retail licensee who has actually\nmade payment for beer or wine products, or on good cause shown to it,\nmay permit sales or deliveries to any retial licensee who has received\nnotice of default or who is named on any delinquent list, on terms other\nthan for cash, but within the limitations of this section, prior to the\npublication of the next delinquent list.\n 6. The license of any retail licensee who purchases or accepts\ndelivery of beer or wine products on any terms, other than as provided\nin this section, may be suspended for not more than five days for the\nfirst offense and not more than thirty days for a subsequent offense.\nThe failure of any such retail licensee to pay any amount in default\nbefore the expiration of the period of suspension shall be deemed and\npunishable as a subsequent offense until paid. In addition, the\nauthority may require any such retail licensee, after default in making\npayment in accordance with the provisions of this section to make\npayment in cash for beer or wine products subsequently delivered.\n 7. Nothing contained in this section shall be construed to require any\nmanufacturer or wholesaler to extend credit to any retail licensee nor\nto restrain any manufacturer or wholesaler from seeking to enforce by\nlegal action or otherwise, payment of any sum or sums of money due or\nalleged to be due to any such manufacturer or wholesaler for beer or\nwine products sold or delivered to any such retail licensee.\n 8. There shall be paid to the liquor authority by each person applying\nafter the effective date of this section for any license to sell beer or\nwine products to retailers or upon the renewal of such license, a sum\nequivalent to ten per centum of the annual license fee prescribed by\nthis chapter for each such licensee. Such moneys shall be used by the\nauthority to defray the expenses incurred in the administration of this\nsection.\n 9. Notwithstanding the law in effect at the time of the sale, the\nfinal payment date for beer and/or wine products sold prior to the\neffective date of this section for which payment has not been made shall\nbe the first final payment date as determined by the provisions of this\nsection.\n