N.Y. Alcoholic Beverage Control Law § 79-c: Direct interstate wine shipments

§ 79-c. Direct interstate wine shipments. 1. Authorization.

Notwithstanding any provision of law, rule or regulation to the

contrary, any holder of a license to manufacture wine 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 each case) of wine 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 wine 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 winery is

located affords to New York state winery and farm winery licensees

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 wine 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 wine in the applicant's state of domicile

along with a copy of the applicant's federal basic permit 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 winery 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

each case) per year of wine 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 thirty-five, fifty-nine-b, and sixty-eight of this

chapter, as applicable;

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

ship wine 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 wine shipped into the state each

calendar year; the names and addresses of the purchasers to whom the

wine was shipped, the date purchased, the name of the common carrier

used to deliver the wine, and the quantity and value of each shipment;

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

of wine 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 wine 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 chapter;

(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.