N.Y. Alcoholic Beverage Control Law § 101-aa: Terms of sale

§ 101-aa. Terms of sale. 1. As used in this section:

a. "Credit period" means a period beginning on the date alcoholic

beverages are delivered and ending thirty days thereafter.

b. "payment period" means the period beginning on the date alcoholic

beverages are delivered and ending on the thirtieth day following the

date on which alcoholic beverages are delivered.

c. "Final payment date" means the last day of a payment period.

d. "Notification date" means, notwithstanding section twenty-five of

the general construction law, for deliveries on:

(i) Monday, the Monday immediately following a final payment date;

(ii) Tuesday, the Tuesday immediately following the final payment

date;

(iii) Wednesday, the Wednesday immediately following the final payment

date;

(iv) Thursday, the Thursday immediately following the final payment

date;

(v) Friday, the Friday immediately following the final payment date.

e. "Retail licensee" means a person licensed to sell liquor and/or

wine at retail for on-premise consumption or for off-premise consumption

(including a person holding a permit granted by the authority pursuant

to subdivision six of section sixty-four of this chapter).

f. "Cash" means and includes currency and coin of the United States of

America, certified check, money order, electronic funds transfer, bank

officer's check or draft, or a check drawn on the account of the retail

licensee payable to the manufacturer or wholesaler and dated no later

than the date of delivery of the alcoholic beverages and which is

honored upon presentment for payment, provided, however, that if any

check or other instrument described herein tendered by a retail licensee

on the delinquent list is not honored upon presentment for payment, the

license of such retail licensee may be suspended for not more than

fifteen days for the first offense, and not more than sixty days for a

subsequent offense, which penalty shall be in addition to the penalty

provided for by the provisions of subdivision six of this section, and

provided further, that nothing herein contained shall require a

manufacturer or wholesaler to accept a check tendered by or drawn on the

account of a retail licensee on the delinquent list unless the same has

been certified.

2. No manufacturer or wholesaler licensed under this chapter shall

sell or deliver any liquor or wine to any retail licensee except as

provided for in this section:

(a) for cash to be paid at the time of delivery; or

(b) on terms requiring payment by such retail licensee for such

alcoholic beverages on or before the final payment date of the credit

period for which delivery is made.

3. Each such manufacturer and wholesaler is hereby required, on or

before the respective notification dates for each retail license, to

give written notice of default, by first class mail, to all such

licensees therein who have failed to make payment to him or her on or

before their final payment date for alcoholic beverages sold or

delivered to them during a credit period ending on their final payment

date. No retail licensee shall be placed in default if the wholesaler

has issued an account credit to the licensee, which after application to

all debts owed by the retail licensee, is equal to or greater than the

amount of the default. Any such retail licensee receiving such notice

shall not thereafter purchase alcoholic beverages except for cash until

such time as the authority determines that his or her name shall not be

published on the delinquent list as provided in subdivision four of this

section, or until such time as the authority permits sales or deliveries

to him or her as provided in subdivision five of this section. Each such

manufacturer and wholesaler is hereby required to file with the

authority, on or before each notification date, copies of the notices

sent by him or her to all delinquent retail licensees as required in

this subdivision, and in addition, if the authority shall so require, a

written list setting forth the names and addresses of all such

delinquent licensees. The authority, in its discretion, may extend for a

period not exceeding three days the date for giving written notice of

default to delinquent retail licensees and extend for three days the

date for filing with the authority the copies of notices sent to such

licensees and/or the written list of delinquent retail licensees as

required in this subdivision. The authority, in its discretion, may

limit the documents to be filed to those relating to licensees who are

to be added or deleted from the default list and direct that the

manufacturer or wholesaler maintain copies of all other documents

required under this section for future inspection by the authority. The

authority shall, as soon as practicable after each notification date,

compile and publish and furnish each manufacturer and wholesaler

licensed under this chapter a list, to be designated the delinquent list

containing the names and addresses of all retail licensees who have been

reported by manufacturers and wholesalers pursuant to the provisions of

this section or section one hundred one-aaa of this article as having

failed to make payment as required by this section for alcoholic

beverages sold or delivered to them, and no such manufacturer or

wholesaler, on or after the fifth day after the receipt of such

delinquent list, shall knowingly, wilfully or intentionally sell or

deliver any alcoholic beverages to any such licensee whose name appears

on such list, except for cash, until such time as the name of such

licensee is removed therefrom, except as hereinafter permitted. The

receipt of a delinquent list by a manufacturer or wholesaler shall

constitute knowledge of the names of the retail licensees who have

failed to make payment for alcoholic beverages as required by this

section. The failure of any manufacturer or wholesaler to comply with

the foregoing provisions of this section may, at the discretion of the

authority, subject the license of such manufacturer or wholesaler to

suspension for not more than five days for the first offense, and not

more than thirty days for a subsequent offense. The authority may

publish the delinquent list on its website; provided, however, that full

access shall be restricted to those manufacturers and wholesalers

licensed under this chapter and access to their specific status shall be

provided to retailers licensed under this chapter. Such publication

shall be considered receipt thereof by all manufacturers and

wholesalers.

4. In the event that any dispute shall exist between any manufacturer

or wholesaler and a retail licensee to whom he shall have sold alcoholic

beverages, either as to the fact of payment or as to the amount due for

such alcoholic beverages or as to the quantity of the alcoholic

beverages sold or delivered, which dispute cannot be adjusted between

them, the authority is hereby authorized to receive statements from each

of the parties to such dispute as to the facts and circumstances thereof

and to determine whether or not such retail licensee's name should be

published on the appropriate delinquent list.

5. The authority in the case of a retail licensee who has actually

made payment for alcoholic beverages, or on good cause shown to it, may

permit sales or deliveries to any retail licensee who has received

notice of default or who is named on any delinquent list, on terms other

than for cash, but within the limitations of this section, prior to the

publication of the next appropriate delinquent list.

6. The license of any retail licensee who purchases or accepts

delivery of alcoholic beverages on any terms, other than as provided in

this section, may be suspended for not more than five days for the first

offense and not more than thirty days for a subsequent offense. The

failure of any such retail licensee to pay any amount in default before

the expiration of the period of suspension shall be deemed and

punishable as a subsequent offense until paid. In addition, the

authority may require any such retail licensee, after default in making

payment in accordance with the provisions of this section to make

payment in cash for alcoholic beverages subsequently delivered.

7. a. All retail licensees who fail to pay manufacturers or

wholesalers for alcoholic beverages sold or delivered to such retail

licensees by such manufacturers or wholesalers subsequent to the

effective date of this section, shall liquidate and pay such unpaid

balances to such manufacturers or wholesalers in equal monthly

installments over a period of three months from the date upon which such

unpaid balances become due. The authority, shall not, however, because

of such an indebtedness or failure to pay such refuse to renew the

license of any such licensee.

b. All retail licensees shall, on or before October tenth, nineteen

hundred sixty-five, make payment in full to manufacturers and

wholesalers of all unpaid balances for alcoholic beverages sold and

delivered to such licensees during the month of September, nineteen

hundred sixty-five. All retail licensees in groups two, three, four and

one shall, on or before November tenth, nineteen hundred sixty-five,

make payment in full to manufacturers and wholesalers of all unpaid

balances for alcoholic beverages sold and delivered between October

first and October seventh, fourteenth, twenty-first and thirty-first,

nineteen hundred sixty-five, respectively. The authority may impose any

penalty or condition otherwise authorized by this section in the case of

any such retail licensee who fails or refuses to liquidate and pay

unpaid balance becoming due under this subdivision.

8. Nothing herein contained shall be construed to require any

manufacturer or wholesaler to extend credit to any retail licensee nor

to restrain any manufacturer or wholesaler from seeking to enforce by

legal action or otherwise, payment of any sum or sums of money due or

alleged to be due to any such manufacturer or wholesaler for alcoholic

beverages sold or delivered to any such retail licensee.

9. The state liquor authority is hereby authorized to do such acts,

prescribe such forms and make such rules, regulations and orders as it

may deem necessary or proper fully to effectuate the provisions of this

section, including but not limited to the changing of any date on which

any act or function pursuant to this section is to be performed by any

licensee or by the liquor authority.

10. 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 section becomes a law, there shall be paid to

the liquor authority by each manufacturer and wholesaler licensed under

this chapter to sell to retailers liquor and/or wines or beer, a sum

equivalent to ten 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.