N.Y. Alcoholic Beverage Control Law § 101-aaa: Terms of sale; beer or wine products

§ 101-aaa. Terms of sale; beer or wine products. 1. As used in this

section:

a. "Credit period" means the following:

(1) A period beginning on Thursday, January first, two thousand four

and ending on Sunday, January eighteenth, two thousand four; and

(2) A period beginning on the first Monday succeeding the concluding

day of each prior period and ending on the second succeeding Sunday

thereafter.

b. "Payment period" means the period ending on the twelfth day

immediately following the last day of any credit period.

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

d. "Delinquent notice date" means the third business day immediately

following a final payment date.

e. "Notification date" means the day immediately following a

delinquent notice date.

f. "Retail licensee" means a person licensed pursuant to this chapter

who purchases beer and/or wine products for resale for on or off

premises consumption, except a person licensed to sell liquor and/or

wine for off premises consumption.

g. "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 in this paragraph 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 in this section 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.

h. "Business payment card" means: (1) any credit card issued to a

retail licensee for business or commercial use pursuant to an agreement

that allows the holder thereof to obtain goods and services on the

credit of the issuer or a debit card that provides access to a bank

account of a retail licensee; (2) a credit or debit card from an issuer

accepted by the manufacturer or wholesaler as permitted by the authority

in regulation; and (3) such credit card shall not include cards in which

a manufacturer or wholesaler has a financial interest or cards by which

their use benefits a manufacturer or wholesaler. Such card must be

issued in the same name as a retail licensee and registered to the same

address as the address on the retail license, or as otherwise permitted

by the authority in regulation.

i. "Final cash invoice amount" means the amount charged by a

manufacturer or wholesaler to a retail licensee pursuant to paragraphs

(a) and (b) of subdivision two of this section.

j. "Final business payment card invoice amount" means the amount

charged by a manufacturer or wholesaler to a retail licensee pursuant to

paragraph (c) of subdivision two of this section; and shall equal the

final cash invoice amount plus three percent of the final cash invoice

amount. The three percent represents the surcharges and fees that are

charged to the manufacturer or wholesaler by the business payment card

issuer or a person or entity associated with the issuer.

2. No manufacturer or wholesaler licensed under this chapter shall

sell or deliver any beer, mead, cider or wine products to any retail

licensee except as provided for in this section:

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

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

mead, cider, or wine products on or before the final payment date of any

credit period within which delivery is made; or

(c) by business payment card; provided that a manufacturer or

wholesaler that exercises reasonable diligence to ensure the sale

comports with the requirements of this section shall not be found to

have violated this subdivision where a retail licensee uses a credit

card other than a business payment card.

Provided, however, that the sale of wine products, mead, or cider to a

retail licensee by a wholesaler licensed under section fifty-eight,

sixty-two, or seventy-eight of this chapter, or a licensed manufacturer

of liquor, mead or wine or a cider producer's license, shall be governed

by the provisions of section one hundred-one-aa of this article.

2-a. A manufacturer or wholesaler that accepts business payment cards

shall clearly state the final cash invoice amount and the final business

payment card invoice amount on an invoice provided to a retail licensee.

Nothing in this section shall preclude, or permit a manufacturer or

wholesaler to prevent, a retail licensee that receives such an invoice

from electing to use any other form of payment method permitted pursuant

to subdivision two of this section following receipt of such invoice.

2-b. Nothing herein contained shall be construed to require any

manufacturer or wholesaler to accept business payment cards as a method

of payment by any retail licensee, provided that if such payment method

is made available it shall be available on equal terms to all retail

licensees.

3. Each such manufacturer and wholesaler shall, on or before the

respective delinquent notice date, give written notice of default, by

first class mail, to all such licensees who have failed to make payment

to the manufacturer or wholesaler on or before their final payment date

for beer or wine products sold or delivered to such licensees during the

previous credit period. Any such retail licensee receiving such notice

shall not thereafter purchase beer or wine products except for cash

until such time as the authority determines that its name shall not be

published on the delinquent list as provided in this subdivision, or

until such time as the authority permits sales or deliveries to such

licensee as provided in subdivision five of this section. Each such

manufacturer and wholesaler shall file with the authority, on or before

each notification date, copies of the notices sent by it to all

delinquent retail licensees, 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. The

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

compile, publish, and furnish each manufacturer and wholesaler licensed

under this chapter a 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-aa of this article as having failed to make payment as

required by this section or section one hundred one-aa of this article

for beer or wine products 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 beer or wine products 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 otherwise permitted by

this section. 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 beer or wine products as

required by this section. The failure of any manufacturer or wholesaler

to comply with the 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

access shall be restricted to those manufacturers and wholesalers

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 such manufacturer or

wholesaler shall have sold beer or wine products, either as to the fact

of payment or as to the amount due for such beer or wine products or as

to the quantity of the beer or wine products sold or delivered, which

dispute cannot be adjusted between them, the authority is 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 delinquent list.

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

made payment for beer or wine products, or on good cause shown to it,

may permit sales or deliveries to any retial 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 delinquent list.

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

delivery of beer or wine products 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 beer or wine products subsequently delivered.

7. Nothing contained in this section 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 beer or

wine products sold or delivered to any such retail licensee.

8. There shall be paid to the liquor authority by each person applying

after the effective date of this section for any license to sell beer or

wine products to retailers or upon the renewal of such license, a sum

equivalent to ten per centum of the annual license fee prescribed by

this chapter for each such licensee. Such moneys shall be used by the

authority to defray the expenses incurred in the administration of this

section.

9. Notwithstanding the law in effect at the time of the sale, the

final payment date for beer and/or wine products sold prior to the

effective date of this section for which payment has not been made shall

be the first final payment date as determined by the provisions of this

section.