N.Y. Alcoholic Beverage Control Law § 35: Direct interstate mead and braggot shipments

§ 35. Direct interstate mead and braggot shipments. 1. Authorization.

Notwithstanding any provision of law, rule or regulation to the

contrary, any holder of a license to manufacture mead and/or braggot in

any other state, who obtains an out-of-state direct shipper's license,

as provided in this section, may ship no more than thirty-six cases (no

more than nine liters per case) of mead and/or braggot produced by such

license holder per year directly to a resident of New York who is at

least twenty-one years of age, for such resident's personal use and not

for resale, provided the state in which such person is so licensed

affords lawful means for shipments of mead and/or braggot to be received

by a resident thereof who is at least twenty-one years of age, for such

resident's personal use and not for resale, from a person licensed in

this state as a manufacturer and, provided further, that the state in

which such out-of-state manufacturer of mead and/or braggot is located

affords to New York state manufacturers of mead and/or braggot

reciprocal shipping privileges, meaning shipping privileges that are

substantially similar to the requirements in this section. No person

shall place an order for shipment of mead and/or braggot unless they are

twenty-one years of age or older. Any common carrier with a permit

issued pursuant to this chapter to whom such out-of-state shipper's

license is presented is authorized to make delivery of shipments

provided for hereunder in this state in compliance with this section.

2. License. Before sending any shipment hereunder to a resident in

this state, the out-of-state shipper shall first obtain a license from

the authority under procedures prescribed by rules and regulations of

the authority and after providing the authority with a true copy of its

current license to manufacture mead and/or braggot in the applicant's

state of domicile along with a copy of the applicant's federal basic

permit and/or brewer's notice after payment of an annual fee of one

hundred twenty-five dollars. Notwithstanding the provisions of section

one hundred ten of this chapter, the authority in its discretion, may

excuse an out-of-state manufacturer of mead and/or braggot from the

submission of such information.

3. Licensee's responsibilities. The holder of an out-of-state direct

shipper's license:

(a) shall ship no more than thirty-six cases (no more than nine liters

per case) per year of mead and/or braggot produced by such license

holder directly to a New York state resident who is at least twenty-one

years of age, for such resident's personal use and not for resale;

(b) may ship within the same packaging any and all alcoholic beverages

it lawfully produces and which it sells in accordance with its shipping

privileges and responsibilities pursuant to the provisions of this

section and sections fifty-nine-b, sixty-eight, and seventy-nine-c of

this chapter, as applicable;

(c) shall ensure that the outside of each shipping container used to

ship mead and/or braggot directly to a New York resident is

conspicuously labeled with the words: "CONTAINS ALCOHOLIC BEVERAGES -

SIGNATURE OF PERSON AGE 21 OR OLDER REQUIRED FOR DELIVERY - NOT FOR

RESALE," or with other language specifically approved by the New York

state liquor authority;

(d) shall maintain records in such manner and form as the authority

may direct, showing the total amount of mead and/or braggot shipped into

the state each calendar year; the names and addresses of the purchasers

to whom the mead and/or braggot was shipped, the date purchased, the

name of the common carrier used to deliver the mead and/or braggot, and

the quantity and value of each shipment;

(e) shall in connection with the acceptance of an order for a delivery

of mead and/or braggot to a New York resident, require the prospective

customer to represent that he or she has attained the age of twenty-one

years or more and that the mead and/or braggot being purchased will not

be resold or introduced into commerce;

(f) shall require common carriers to:

(i) require a recipient, at the delivery address, upon delivery, to

demonstrate that the recipient is at least twenty-one years of age by

providing a valid form of photographic identification authorized by

section sixty-five-b of this article;

(ii) require a recipient to sign an electronic or paper form or other

acknowledgement of receipt as approved by the authority; and

(iii) refuse delivery when the proposed recipient appears to be under

twenty-one years of age and refuses to present valid identification as

required by subparagraph (i) of this paragraph;

(g) shall file returns with and pay to the New York state department

of taxation and finance all state and local sales taxes and excise taxes

due on sales into this state in accordance with the applicable

provisions of the tax law relating to such taxes, the amount of such

taxes to be determined on the basis that each sale in this state was at

the location where delivery is made;

(h) shall keep all records required by this section for three years

and provide copies of such records, upon written request, to the

authority or the department of taxation and finance;

(i) shall permit the authority or the department of taxation and

finance to perform an audit of such out-of-state shipper upon request;

(j) shall execute a written consent to the jurisdiction of this state,

its agencies and instrumentalities and the courts of this state

concerning enforcement of this section and any related laws, rules, or

regulations, including tax laws, rules or regulations; and

(k) shall prior to obtaining an out-of-state direct shipper's license,

obtain a certificate of authority pursuant to section eleven hundred

thirty-four of the tax law and a registration as a distributor pursuant

to sections four hundred twenty-one and four hundred twenty-two of the

tax law.

4. Situs. Delivery of a shipment in this state by the holder of an

out-of-state direct shipper's license shall be deemed to constitute a

sale in this state at the place of delivery and shall be subject to all

excise taxes levied pursuant to section four hundred twenty-four of the

tax law and all sales taxes levied pursuant to articles twenty-eight and

twenty-nine of such law.

5. Renewal. The out-of-state shipper may annually renew its license

with the authority by paying a one hundred twenty-five dollar renewal

fee, providing the authority with a true copy of its current license in

such other state as an alcoholic beverage manufacturer and by complying

with such other procedures as are prescribed by rule of the authority.

6. Rules and regulations. The authority and the department of taxation

and finance may promulgate rules and regulations to effectuate the

purposes of this section.

7. Enforcement. The authority may enforce the requirements of this

section including the requirements imposed on the common carrier, by

administrative proceedings to suspend or revoke an out-of-state

shipper's license and the authority may accept payment of an

administrative fine in lieu of suspension, such payments to be

determined by rules or regulations promulgated by the authority. In

addition, the authority or the attorney general of the state of New York

shall report violations of this section, where appropriate, to the

United States department of treasury, tax and trade bureau, for

administrative action to suspend or revoke the federal basic permit.

8. Violations. In any action brought under this section, the common

carrier and the licensee shall only be held liable for their independent

acts.