§ 101-B — Unlawful discriminations prohibited; filing of schedules; schedule listing fund

New York § 101-B

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

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§ 101-b. Unlawful discriminations prohibited; filing of schedules;\nschedule listing fund. 1. It is the declared policy of the state that it\nis necessary to regulate and control the manufacture, sale, and\ndistribution within the state of alcoholic beverages for the purpose of\nfostering and promoting temperance in their consumption and respect for\nand obedience to the law. In order to eliminate the undue stimulation of\nsales of alcoholic beverages and the practice of manufacturers and\nwholesalers in granting discounts, rebates, allowances, free goods, and\nother inducements to selected licensees, which contribute to a\ndisorderly distribution of alcoholic beverages, and which are\ndetrimental to the proper regulation of the liquor industry and contrary\nto the interests of temperance, it is hereby further declared as the\npolicy of the state that the sale of alcoholic beverages should be\nsubjected to certain restrictions, prohibitions and regulations. The\nnecessity for the enactment of the provisions of this section is,\ntherefore, declared as a matter of legislative determination.\n 2. It shall be unlawful for any person who sells liquors or wines to\nwholesalers or retailers\n (a) to discriminate, directly or indirectly, in price, in discounts\nfor time of payment or in discounts on quantity of merchandise sold,\nbetween one wholesaler and another wholesaler, or between one retailer\nand another retailer purchasing liquor or wine bearing the same brand or\ntrade name and of like age and quality; (b) to grant, directly or\nindirectly, any discount, rebate, free goods, allowance or other\ninducement of any kind whatsoever, except a discount or discounts for\nquantity of liquor or for quantity of wine and a discount not in excess\nof one per centum for payment on or before ten days from date of\nshipment.\n 3. (a) No brand of liquor or wine shall be sold to or purchased by a\nwholesaler, irrespective of the place of sale or delivery, unless a\nschedule, as provided by this section, is transmitted to and received by\nthe liquor authority, and is then in effect. Such schedule shall be\ntransmitted to the authority in such form, manner, medium and format as\nthe authority may direct; shall be deemed duly verified by the person\nsubmitting such schedule upon its transmission to the authority; and\nshall contain, with respect to each item, the exact brand or trade name,\ncapacity of package, nature of contents, age and proof where stated on\nthe label, the number of bottles contained in each case, the bottle and\ncase price to wholesalers, the net bottle and case price paid by the\nseller, which prices, in each instance, shall be individual for each\nitem and not in "combination" with any other item, the discounts for\nquantity, if any, and the discounts for time of payment, if any. Such\nbrand of liquor or wine shall not be sold to wholesalers except at the\nprice and discounts then in effect unless prior written permission of\nthe authority is granted for good cause shown and for reasons not\ninconsistent with the purpose of this chapter. Such schedule shall be\ntransmitted by (1) the owner of such brand, or (2) a wholesaler selling\nsuch brand and who is designated as agent for the purpose of filing such\nschedule if the owner of the brand is not licensed by the authority, or\n(3) with the approval of the authority, by a wholesaler, in the event\nthat the owner of the brand is unable to transmit a schedule or\ndesignate an agent for such purpose.\n (b) No brand of liquor or wine shall be sold to or purchased by a\nretailer unless a schedule, as provided by this section, is transmitted\nto and received by the liquor authority, and is then in effect. Such\nschedule shall be transmitted to the authority in such form, manner,\nmedium and format as the authority may direct; shall be deemed duly\nverified by the person submitting such schedule upon its transmission to\nthe authority; and shall contain, with respect to each item, the exact\nbrand or trade name, capacity of package, nature of contents, age and\nproof where stated on the label, the number of bottles contained in each\ncase, the bottle and case price to retailers, the net bottle and case\nprice paid by the seller, which prices, in each instance, shall be\nindividual for each item and not in "combination" with any other item,\nthe discounts for quantity, if any, and the discounts for time of\npayment, if any. Such brand of liquor or wine shall not be sold to\nretailers except at the price and discounts then in effect unless prior\nwritten permission of the authority is granted for good cause shown and\nfor reasons not inconsistent with the purpose of this chapter. Such\nschedule shall be transmitted by each manufacturer selling such brand to\nretailers and by each wholesaler selling such brand to retailers.\n (c) Provided however, nothing contained in this section shall require\nany manufacturer or wholesaler to list in any schedule to be filed\npursuant to this section any item offered for sale to a retailer under a\nbrand which is owned exclusively by one retailer and sold at retail\nwithin the state exclusively by such retailer.\n (d) The authority may make available the schedules in paragraphs (a)\nand (b) of this subdivision to all licensed wholesaler or retail\nestablishments by way of controlled internet access.\n (e) As used in this subdivision the term "item" shall be deemed to\ninclude a sealed, pre-wrapped package consisting of a sealed container\nor containers of liquor, wine or wine products and other merchandise\nreasonably used in connection with the preparation, storage, promotion,\ngifting, or service of liquor, wine or wine products provided that such\nother merchandise shall not be potable or edible; provided however that\nany such wine, liquor or wine products sealed or pre-wrapped in\ncombination with other items shall also be available individually for\nsale. For the purposes of this section, gift and promotional items shall\nonly include those items that are complementary and directly associated\nwith the sale of wine or liquor they are gifting or promoting and shall\nmean: (1) items that are de minimis in value, but in no instance shall\nmerchandise be valued at more than fifteen dollars in total; (2) items\nthat are imprinted with the wine or liquor brand logo on the gift or\npromotional item; and (3) items that are included as part of a\nmanufactured pre-sealed package with the wine or liquor that is being\ngifted or promoted. Further, for the purposes of this section, gift or\npromotional items shall not include any food, non-alcoholic beverage, or\nother drink or food mix, nor shall these items be offered for sale to\nthe general public as individual items.\n 4. Each such schedule required by paragraph (a) of subdivision three\nof this section shall be filed on or before the twenty-fifth day of each\nmonth and the prices and discounts set forth therein shall become\neffective on the first day of the second succeeding calendar month and\nshall be in effect for such second succeeding calendar month. Each such\nschedule required by paragraph (b) of subdivision three of this section\nshall be filed on or before the fifth day of each month, and the prices\nand discounts set forth therein shall become effective on the first day\nof the calendar month following the filing thereof, and shall be in\neffect for such calendar month. Within ten days after the filing of such\nschedule the authority shall make them or a composite thereof available\nfor inspection by licensees. Within three business days after such\ninspection is provided for, a wholesaler may amend his filed schedule\nfor sales to retailers in order to meet lower competing prices and\ndiscounts for liquor or wine of the same brand or trade name, and of\nlike age and quality, filed pursuant to this section by any licensee\nselling such brand, provided such amended prices are not lower and\ndiscounts are not greater than those to be met. Any amended schedule so\nfiled shall become effective on the first day of the calendar month\nfollowing the filing thereof and shall be in effect for such calendar\nmonth. All schedules filed shall be subject to public inspection, from\nthe time that they are required to be made available for inspection by\nlicensees, and shall not be considered confidential. Each manufacturer\nand wholesaler shall retain in his licensed premises for inspection by\nlicensees a copy of his filed schedules as then in effect. The liquor\nauthority may make such rules as shall be appropriate to carry out the\npurpose of this section.\n 4-a. No licensee shall refuse to sell any brand of liquor or wine to\nany licensee authorized to purchase such brand of liquor or wine from\nsuch licensee at the price listed in the schedule of prices of such\nbrand of liquor or wine required to be filed by such licensee with the\nauthority pursuant to this section, provided the purchaser pays cash\ntherefor, and except as herein provided.\n (a) A schedule of prices to wholesalers filed by the brand owner or\nits agent with the authority, pursuant to this section, may limit the\ndistribution or resale of a brand to wholesalers by the filing by the\nbrand owner or its agent with the authority of the names, addresses and\nlicense numbers of such wholesalers. Such list shall be filed each month\ntogether with the schedule of prices, and no name shall be added thereto\nor removed therefrom after filing except with permission of the\nauthority.\n (b) Only those wholesalers listed, pursuant to paragraph (a) of this\nsubdivision, may schedule the price to retailers for such brand, except\nthat when not inconsistent with the purpose of this section, the\nauthority may authorize any other wholesaler to schedule a price after\nfurnishing the quantity, source of purchase and any other information\nthe authority may require.\n (c) When distribution or resale of a brand has been restricted,\npursuant to paragraph (a) of this subdivision, such brand shall not be\nsold or purchased by any wholesalers who are not listed in accordance\nwith paragraph (a) of this subdivision.\n (d) For good cause shown to the satisfaction of the authority,\npermission may be granted for the filing of schedules limiting the\ndistribution or resale of a brand to retailers.\n (e) Manufacturers and wholesalers may not require or compel retailers\nto purchase other brands in order to be able to buy a particular brand.\n (f) Nothing contained in this subdivision shall be construed as\nauthority for permitting any conduct or activity by any brand owner or\nits agent or any wholesaler of liquor or wine proscribed by the\nantitrust laws of this state or the United States.\n (g) If any provision of any paragraph of this subdivision or any\nsubdivision of this section or the application thereof to any person or\ncircumstance shall be adjudged invalid by a court of competent\njurisdiction, such order or judgment shall be confined in its operation\nto the controversy in which it was rendered and shall not affect or\ninvalidate the remainder of any provision of this subdivision or any\nsubdivision of this section or the application of any part thereof to\nany other person or circumstance and to this end the provisions of each\nparagraph of this subdivision and each subdivision of this section are\nhereby declared to be severable.\n 5. (a) (i) Notwithstanding any other provision of law, each such\nschedule required by paragraph (a) of subdivision three of this section\nwhich is filed by a micro-winery, winery, or farm winery, or a class A,\nA-1, B, B-1, C, or D distiller shall be filed annually on or before the\ntwenty-fifth day of November. The prices and discounts set forth therein\nshall become effective on the first day of the second succeeding\ncalendar month and shall remain in effect for such twelve succeeding\ncalendar months, unless a price change filing is made pursuant to\nsubparagraph (ii) of this paragraph.\n (ii) A micro-winery, winery, or farm winery, or a class A, A-1, B,\nB-1, C, or D distiller licensee may file a price schedule change at any\ntime between the required annual filings. Each such price schedule\nchange shall be filed on or before the twenty-fifth day of each month\nfor a change in prices to become effective on the first day of the\nsecond succeeding calendar month and shall remain in effect until the\neffective date of the next filing.\n (b) (i) Notwithstanding any other provision of law, each such schedule\nrequired by paragraph (b) of subdivision three of this section which is\nfiled by a micro-winery, winery, or farm winery licensee, or a class A,\nA-1, B, B-1, C, or D distiller shall be filed annually on or before the\nfifth day of December. The prices and discounts set forth therein shall\nbecome effective on the first day of the calendar month following the\nfiling thereof, and shall remain in effect for such twelve succeeding\ncalendar months, unless a price change filing is made pursuant to\nsubparagraph (ii) of this paragraph.\n (ii) A micro-winery, winery, or farm winery, or a class A, A-1, B,\nB-1, C, or D distiller licensee may file a price schedule change at any\ntime between the required annual filings. Each such price schedule\nchange shall be filed on or before the fifth day of each month for a\nchange in prices to become effective on the first day of the calendar\nmonth following the filing thereof and shall remain in effect until the\neffective date of the next filing.\n (c) Within ten days after the filing of such schedules the authority\nshall make them or a composite thereof available for inspection by\nlicensees. Within three business days after such inspection is provided\nfor, a wholesaler may amend his filed schedule for sales to retailers in\norder to meet lower competing prices and discounts for wine of the same\nbrand or trade name, and of like age and quality, filed pursuant to this\nsection by any licensee selling such brand, provided such amended prices\nare not lower and discounts are not greater than those to be met. Any\namended schedule so filed shall become effective on the first day of the\ncalendar month following the filing thereof and shall be in effect until\nthe effective date of the next filing.\n (d) All schedules filed shall be subject to public inspection, from\nthe time that they are required to be made available for inspection by\nlicensees, and shall not be considered confidential. Each manufacturer\nand wholesaler shall retain in his licensed premises for inspection by\nlicensees a copy of his filed schedules as then in effect. The liquor\nauthority may make such rules as shall be appropriate to carry out the\npurpose of this subdivision.\n 6. For the purpose of raising the moneys necessary to defray the\nexpenses incurred in the administration of this section, on or before\nthe tenth day after this act becomes a law, there shall be paid to the\nliquor authority by each manufacturer and wholesaler licensed under this\nchapter to sell to retailers liquors and/or wines, a sum equivalent to\nfifteen per centum of the annual license fee prescribed by this chapter\nfor each such licensee. A like sum shall be paid by each person\nhereafter applying for any such license or the renewal of any such\nlicense, and such sum shall accompany the application and the license\nfee prescribed by this chapter for such license or renewal as the case\nmay be. In the event that any other law requires the payment of a fee by\nany such licensee or applicant as set forth in this section for schedule\nlisting, then and in such event the total fee imposed by this section\nand such other law or laws on each such licensee shall not exceed in the\naggregate a sum equivalent to fifteen per centum of the annual license\nfee prescribed by this chapter for such license.\n 7. The authority may revoke, cancel or suspend any license issued\npursuant to this chapter, and may recover (as provided in section one\nhundred twelve of this chapter) the penal sum of the bond filed by a\nlicensee, or both, for any sale or purchase in violation of any of the\nprovisions of this section or for making a false statement in any\nschedule filed pursuant to this section or for failing or refusing in\nany manner to comply with any of the provisions of this section.\n