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ARTICLE 4
SPECIAL PROVISIONS RELATING TO BEER
Section 50. Kinds of licenses.
51. Brewer`s license.
52. Brewer`s retail license.
53. Wholesaler`s license.
53-a. Vendor`s license.
54. License to sell beer at retail for consumption off the
premises.
54-a. License to sell beer and wine products at retail for
consumption off the premises.
55. License to sell beer at retail for consumption on the
premises.
55-a. License to sell beer at retail, in certain counties, for
consumption at baseball parks, race tracks and outdoor
athletic fields and stadia where admission fees are
charged, in operation for certain periods of the year.
55-b. Manner of changing beer prices to wholesalers and retail
licensees.
55-c. Agreements between brewers and beer wholesalers.
56. License fees.
56-a. Filing fees and refunds.
57. License fees; when due and payable; fee for part of year.
57-a. Change in duration of licenses.
S 50. Kinds of licenses. The following kinds of licenses may be
issued for the brewing and sale of beer:
1. Brewer`s licenses;
2. Brewer`s retail licenses;
3. Wholesaler`s licenses;
4. Vendor`s licenses;
5. Licenses to sell beer at retail for consumption off the premises;
and
6. Licenses to sell beer at retail for consumption on the premises.
S 51. Brewer`s license. 1. Any person may apply to the liquor
authority for a license to brew beer within this state for sale. Such
application shall be in writing and verified and shall contain such
information as the liquor authority shall require. Such application
shall be accompanied by a check or draft for the amount required by this
article for such license. If the liquor authority shall grant the
application, it shall issue a license in such form as shall be
determined by its rules. Such license shall contain a description of the
licensed premises and in form and in substance shall be a license to the
person therein specifically designated to brew beer in the premises
therein specifically licensed.
2. Such a license shall authorize the sale from the licensed premises
of the beer brewed by such licensee to duly licensed wholesalers,
retailers and permittees in this state, and to sell or deliver such beer
to persons outside the state pursuant to the laws of the place of such
sale or delivery. A person holding a brewer`s license may apply for a
license to sell beer brewed by him at wholesale at premises other than
those designated in the brewery license and the provisions of this
article relative to wholesaler`s licenses shall apply so far as
applicable to such application.
3. A licensed brewer may, under such rules as may be adopted by the
liquor authority, sell beer at retail in bulk by the keg, cask or barrel
for consumption and not for resale at a clam-bake, barbeque, picnic,
outing or other similar outdoor gathering at which more than fifty
persons are assembled.
4. A licensed brewer may apply to the liquor authority for a license
to sell beer, wine or liquor at retail for consumption on the premises
in a restaurant owned by him and conducted and operated by him in or
adjacent to the brewery for which he is licensed. All of the provisions
of this chapter relative to licenses to sell beer, wine or liquor at
retail for consumption on the premises shall apply so far as applicable
to such application.
5. Except as otherwise provided in subdivisions three and four of this
section and except as provided in section fifty-two no brewer shall sell
any beer, wine or liquor at retail.
7. Notwithstanding any contrary provision of law or of any rule or
regulation promulgated pursuant thereto, and in addition to the
activities which may otherwise be carried on by any person licensed as a
brewer under this chapter, such person may, on the premises designated
in such license: (a) produce, package, bottle, sell and deliver soft
drinks and other non-alcoholic beverages, vitamins, malt, malt sirup,
and other by-products; (b) dry spent grain from the brewery; (c) recover
carbon dioxide and yeast; (d) store bottles, packages and supplies
necessary or incidental to all such operations; and (e) package, bottle,
sell and deliver wine products. If any licensed brewer desires to engage
in any of the foregoing activities which (a) require the use of
by-products or wastage from the production of beer, or utilize
buildings, room-areas or equipment not fully employed in the production
of beer; or (b) are reasonably necessary to realize the maximum benefit
from the premises and equipment and to reduce the overhead of the
brewery; or (c) are in the public interest because of emergency
conditions; or (d) involve experiments or research projects related to
equipment, materials, processes, products, by-products or wastage of the
brewery, he shall submit an application so to do to the liquor
authority, on forms prescribed and furnished by it. If the authority
determines that the activities specified in the application will not
impede the effective administration of the alcoholic beverage control
law, it may approve such application, subject to such restrictions or
modifications, and in such manner and form as it may determine, and no
brewer licensed under this chapter shall engage in any such activities
without the prior approval of the authority. The liquor authority is
hereby authorized to adopt such rules and regulations as it may
determine necessary to effectuate the provisions of this subdivision.
S 52. Brewer`s retail license. 1. The liquor authority may in its
discretion and upon such terms and conditions as it may by rule
prescribe, issue to a licensed brewer upon his application therefor a
license authorizing him to sell beer at retail to a person for
consumption in his home.
2. Such application shall be in writing and verified and shall contain
such information as the liquor authority shall require. Such application
shall be accompanied by a check or draft for the amount required by this
section for such license. If the liquor authority shall grant the
application it shall issue a license in such manner as shall be
determined by its rules.
3. Such a license and the exercise of the privilege given thereunder
may be subjected by the liquor authority to such requirements and
restrictions as it may deem necessary to impose by rule.
4. For the exercise of the privilege granted by such license there is
assessed a fee to be paid by the licensee in the sum of three hundred
seventy-five dollars per year which license may be issued for
semi-annual periods and which fee shall be in addition to the fee
provided for in this article for a brewer`s license.
S 53. Wholesaler`s license. Any person may apply to the liquor
authority for a license to sell beer at wholesale. Such application
shall be in writing and verified and shall contain such information as
the liquor authority shall require. Such application shall be
accompanied by a check or draft for the amount required by this article
for such license. If the liquor authority shall grant the application it
shall issue a license in such form as shall be determined by its rules.
Such a license shall contain a description of the licensed premises and
in form and in substance shall be a license to the person therein
specifically designated to sell beer at wholesale in the premises
therein specifically licensed to duly licensed wholesalers, retailers
and permittees in this state, and to sell or deliver beer to persons
outside the state pursuant to the laws of the place of such sale or
delivery. A wholesaler`s license issued or renewed prior to July first,
nineteen hundred sixty, and thereafter renewed or transferred, shall
authorize the holder thereof to sell beer at retail to a person for
consumption in his home; provided, however, that regardless of the date
issued, renewed or transferred, a wholesaler`s license issued to a
brewer or to the wholly-owned subsidiary of a brewer, shall authorize
the holder thereof to sell beer at retail to a person for consumption in
his home.
S 53-a. Vendor`s license. In cities having a population of one
million or more, any individual person may apply for a license to sell
beer as a vendor. Such application shall be in writing, and verified,
and shall contain such information as the liquor authority shall
require. Such application shall be accompanied by a check or draft for
the amount required by this article for such license. If the liquor
authority shall grant the application it shall issue a license in such
form as shall be determined by its rules. Such a license shall contain a
description of the licensed premises and in form and in substance shall
be a license to the person therein specifically designated to sell beer
as a vendor in cities having a population of one million or more only,
from the premises therein specifically licensed. A vendor`s license
shall authorize the holder thereof to sell beer at retail to be
delivered by such vendor to a person for consumption in his home and
shall authorize the holder thereof to operate one vehicle for the
delivery of beer, but shall not authorize the sale to any person or
licensee for resale.
S 54. License to sell beer at retail for consumption off the premises.
1. Any person may apply to the appropriate board for a license to sell
beer at retail not to be consumed upon the premises where sold. Such
application shall be in writing and verified and shall contain such
information as the liquor authority shall require. Such application
shall be accompanied by a check or draft for the amount required by this
article for such license. The term "premises" shall include any duly
licensed supply ship operating in harbors in Lake Erie.
2. In the event that the liquor authority issues such license it shall
forward the same to the applicant.
3. If the authority shall disapprove an application for a license or
permit, it shall state and file in its offices the reasons therefor and
shall notify the applicant thereof. Such applicant may thereupon apply
to the liquor authority for a review of such action in a manner to be
prescribed by the rules of the liquor authority. A hearing upon notice
to the applicant shall thereupon be held by the liquor authority or by
one of its members at its office most conveniently situated to the
office of its duly authorized representative in a manner to be
prescribed in its rules; and on such hearing proof may be taken by oral
testimony or by affidavit relative thereto. After such hearing, if the
liquor authority confirms such disapproval, it shall endorse such
application accordingly and shall send notice to the applicant of its
action in such form as the liquor authority may prescribe. If the liquor
authority does not confirm the disapproval action it may grant such
application and issue such license.
4. No such license shall be issued, however, to any person for any
premises other than a grocery store, drug store, or duly licensed supply
ship operating in harbors in Lake Erie.
5. Such license shall contain a description of the licensed premises
and in form and in substance shall be a license to the person
specifically designated therein to sell beer at retail in the premises
specifically licensed, not to be consumed upon said premises.
S 54-a. License to sell beer and wine products at retail for consumption off
the premises. 1. Any person may apply to the appropriate
board for a license to sell beer and wine products at retail not to be
consumed upon the premises where sold. Such application shall be in
writing and verified and shall contain such information as the liquor
authority shall require. Such application shall be accompanied by a
check or draft for the amount required by section fifty-six of this
article for such license. The term "premises" shall include any duly
licensed supply ship operating in harbors in Lake Erie. All the
provisions contained in subdivisions two and three of section fifty-four
of this article shall apply to the procedure relative to an application
for a license under this section.
2. No such license shall be issued, however, to any person for any
premises other than a grocery store, drug store, or duly licensed supply
ship operating in harbors in Lake Erie.
3. Such license shall contain a description of the licensed premises
and in form and in substance shall be a license to the person
specifically designated therein to sell beer and wine products at retail
in the premises specifically licensed, not to be consumed upon said
premises.
S 55. License to sell beer at retail for consumption on the premises.
1. Any person may make an application to the appropriate board for a
license to sell beer at retail to be consumed upon the premises. Such
application shall be in writing and verified and shall contain such
information as the liquor authority shall require. Such application
shall be accompanied by a check or draft for the amount required by this
article for such license. All of the provisions contained in
subdivisions two and three of the preceding section shall apply to the
procedure relative to an application for a license under this section.
2. Such a license shall contain a description of the licensed premises
and in form and in substance shall be a license to the person therein
specifically designated to sell beer in the premises therein
specifically licensed, at retail, to be consumed upon such premises.
Such license shall also include the privilege of selling beer at retail
to be consumed off the premises.
2-a. Notwithstanding any other provision of this chapter, upon receipt
in the city of New York of an application for a license under this
section, an application for renewal under section one hundred nine of
this chapter, or an application for an alteration to a premises licensed
for consumption on the premises under section ninety-nine-d of this
chapter, the applicant shall notify the community board established
pursuant to section twenty-eight hundred of the New York city charter
with jurisdiction over the area in which such licensed premises is to be
located by certified mail, return receipt requested, wherein the
prospective licensed premises is to be located or, in the case of an
application for renewal, or alteration where it is presently located not
less than thirty days prior to the submission of its application for a
license under this section or for a renewal thereof pursuant to section
one hundred nine of this chapter. Such community board may express an
opinion for or against the granting of such license. Any such opinion
shall be deemed part of the record upon which the liquor board makes its
determination to grant or deny such license.
3. No such license shall be issued, however, to any person for any
premises other than premises for which a license may be issued under
section sixty-four or sixty-four-a of this chapter or a hotel or
premises which are kept, used, maintained, advertised or held out to the
public to be a place where food is prepared and served for consumption
on the premises in such quantities as to satisfy the liquor authority
that the sale of beer intended is incidental to and not the prime source
of revenue from the operation of such premises. The foregoing provisions
of this subdivision shall not apply to any premises located at, in, or
on the area leased by the city of New York to New York World`s Fair 1964
Corporation pursuant to the provisions of chapter four hundred
twenty-eight of the laws of nineteen hundred sixty, as amended by a
chapter of the laws of nineteen hundred sixty-one, during the term or
duration of such lease. Such license may also include such suitable
space outside of the licensed premises and adjoining it as may be
approved by the liquor authority.
S 55-a. License to sell beer at retail, in certain counties, for consumption
at baseball parks, race tracks and outdoor athletic fields and stadia where admission
fees are charged, in operation for certain periods of the year.
1. Any person may make an application to the
appropriate board for a license to sell beer to be consumed at baseball
parks, race tracks, and other athletic fields and stadia where admission
fees are charged, other than such parks, fields and stadia as are
operated and maintained by educational institutions, to be consumed on
the premises. Such application shall be in writing and verified and
shall contain such information as the liquor authority shall require.
Such application shall be accompanied by a check or draft for the amount
required by this article for such license. All of the provisions
contained in subdivisions two and three of section fifty-four shall
apply to the procedure relative to an application for a license under
this section.
2. Such a license shall contain a description of the licensed premises
and in form and substance shall be a license to the person therein
specifically designated to sell beer on the premises therein
specifically licensed, at retail, to be consumed upon such premises.
S 55-b. Manner of changing beer prices to wholesalers and retail licensees.
1. It is hereby declared as the policy of the state that the
sale and distribution of beer shall be subject to certain restrictions,
prohibitions and regulations which tend to maintain an orderly market
and prevent destructive competition. The necessity of the provisions of
this section is therefore declared as a matter of legislative necessity.
2. No brewer or beer wholesaler may increase the price per case, draft
package or special package of beer sold to beer wholesalers or retail
licensees until at least one hundred eighty days have elapsed since his
last price decrease on such case, draft package or special package,
provided, however, that the brewer or beer wholesaler may increase any
price established by him at any time in the amount of any direct tax
increase on beer, or on containers thereof, actually paid by such brewer
or beer wholesaler, and provided further, however, that if a brewer or
beer wholesaler has increased his price to beer wholesalers at any time
pursuant to the provisions hereof, the beer wholesaler may increase the
price established by him on such package in an amount equal to the
direct price increase to the beer wholesaler. The price per case, draft
package or special package of beer sold to beer wholesalers or retail
licensees on the first day of the month following the effective date of
this act shall be deemed the base price, to or from which price
increases or decreases may be made in accordance with the provisions of
this section.
3. The authority is authorized and empowered to do such acts,
prescribe such forms and adopt rules and regulations as it may deem
necessary or proper to carry into effect the purpose and provisions of
this section and to prevent circumvention or evasion thereof.
Without limiting the generality of the foregoing, and in addition to
its other powers, the authority may, in its discretion, adopt rules or
regulations:
a. Particularizing the standards of packaging which constitute a case,
special package and draft package of beer.
b. Defining the guidelines relating to "price" within the purview of
this section which guidelines may provide, without limitation thereto,
that,
(1) Whenever a brewer or beer wholesaler decreases his price per case,
draft package or special package of beer to beer wholesalers, the beer
wholesaler may decrease his price to retail licensees on such reduced
item or items by no more than the amount in dollars and cents by which
the brewer or beer wholesaler has decreased the price per case, draft
package or special package to the beer wholesaler.
(2) Whenever the price per case, draft package or special package of
beer is increased to retail licensees by action of the brewer or beer
wholesaler following a price decrease, the brewer or beer wholesaler may
not increase its price to retailers on any item or items more than
one-half of the price decrease previously granted, nor may the brewer or
beer wholesaler selling such item or items to the beer wholesaler
increase its price to such beer wholesaler more than one-half of the
price decrease previously granted, provided, however, such restrictions
on price increases by both brewers and beer wholesalers shall remain in
effect for the period of one hundred eighty days.
(3) Whenever a brewer or beer wholesaler lowers its price per case,
draft package or special package of beer to any beer wholesaler in New
York state it must lower its price on each item or items by the same
amount to all beer wholesalers throughout New York state to whom such
item or items is offered for sale.
(4) Whenever a brewer or beer wholesaler, following a price decrease,
raises its price per case, draft package or special package of beer to
any beer wholesaler in New York state it must raise its price on each
item or items by the same amount to all beer wholesalers throughout New
York state to whom such item or items are offered for sale.
c. Providing that for good cause shown to its satisfaction, the
authority may grant waivers to licensees adversely affected by this
section, under such terms and conditions as the authority deems
appropriate.
d. Requiring licensees to file with the authority reports certifying
their prices of beer, the dates of any changes in the price of any item
of beer, and such other matters as the authority may determine from time
to time to be necessary to disclose accurately the price of beer during
the previous twelve months and requiring licensees to keep forms,
records and memoranda prescribed by the authority.
4. For the purpose of defraying the expenses incurred in the
administration of this section, there shall be paid to the authority by
each person hereafter applying for a license as brewer or beer
wholesaler the following sums: brewer whose annual production is sixty
thousand barrels per year or more, one thousand dollars; brewer whose
annual production is less than sixty thousand barrels per year, one
hundred dollars; beer wholesaler, one hundred dollars. A like sum shall
be paid by each person hereafter applying for the issuance or 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
thereof, as the case may be. The sums prescribed by this subdivision
shall not be pro-rated for any portion of the license fee and shall have
no refund value.
5. For any violation of any provision of this section or of any rule
or regulation duly promulgated under this section the authority may
revoke, cancel or suspend a license or recover, as provided in section
one hundred twelve of this chapter, the penal sum of the bond filed by
the licensee.
S 55-c. Agreements between brewers and beer wholesalers. 1. Purpose.
It is hereby declared to be the policy of this state, that the sale and
delivery of beer by brewers to beer wholesalers shall be pursuant to a
written agreement. That further, the regulation of business relations
between brewers and beer wholesalers is necessary and appropriate to the
general economy and tax base of this state and in the public interest.
2. Definitions. As used in this section, the following words shall
have the following meanings:
(a) "Agreement" means any contract, agreement, arrangement, course of
dealing or commercial relationship between a brewer and a beer
wholesaler pursuant to which a beer wholesaler is granted the right to
purchase, offer for sale, resell, warehouse or physically deliver beer
sold by a brewer.
(b) "Brewer" means any person or entity engaged primarily in business
as a brewer, manufacturer of alcoholic beverages, importer, marketer,
broker or agent of any of the foregoing who sells or offers to sell beer
to a beer wholesaler in this state or any successor to a brewer.
(c) "Successor to a brewer" means any person or entity which acquires
the business or beer brands of a brewer, without limitation, by way of
the purchase, assignment, transfer, lease, or license or disposition of
all or a portion of the assets, business or equity of a brewer in any
transaction, including merger, corporate reorganization or consolidation
or the formation of a partnership, joint venture or other joint
marketing alliance.
(d) "Beer wholesaler" and "wholesaler" means the holder of a
wholesaler`s license pursuant to section fifty-three of this article who
purchases, offers to sell, resells, markets, promotes, warehouses or
physically distributes beer sold by a brewer.
(e) "Good cause" means and shall be limited to:
(i) (A) The implementation by a brewer of a national or regional
policy of consolidation which is reasonable, nondiscriminatory and
essential. Such policy shall have been previously disclosed, in
writing, in reasonable detail to the brewer`s wholesalers, and shall
result in a contemporaneous reduction in the number of a brewer`s
wholesalers not only for a brand in this state, but also for a brand in
contiguous states or in a majority of the states in which the brewer
sells the brand. All affected wholesalers and affected brewers shall be
afforded ninety days prior notice of the implementation of such policy,
and such notice shall be provided by the brewer implementing said
policy. Further, an affected wholesaler who has actual knowledge of the
intended implementation of such policy shall also notify each affected
brewer. The term "affected brewers" means all other brewers with an
agreement with an affected wholesaler who is a multiple brands
wholesaler. The term "affected wholesalers" means wholesalers who may
reasonably be expected to experience a loss or diminishment of a right
to distribute a brand, in whole or in part, as a consequence of a
proposed consolidation policy.
(B) An affected brewer receiving notice pursuant to this paragraph
may, within one hundred twenty days after receiving such notice,
terminate an agreement with a multiple brands wholesaler in the event:
(1) the total case purchases computed in twenty-four twelve ounce
equivalence units by the wholesaler of the products of the affected
brewer amounted to two percent or less of the multiple brands
wholesaler`s total sales volume during the twelve month period preceding
the notice; and (2) the affected brewer, prior to such termination, pays
compensation to the multiple brands wholesaler.
(ii) There is a failure by the beer wholesaler to comply with a
material term of an agreement required by subdivision three of this
section between the brewer and beer wholesaler, provided that: (A) the
wholesaler was given written notice by the brewer of the failure to
comply with the agreement as provided for in subdivision five of this
section and in which the brewer states with particularity the basis for
the brewer`s determination of non-compliance, and upon the wholesaler`s
written request within ten days of receipt of the notice, the brewer has
supplemented such notice by submitting to the wholesaler in writing the
brewer`s recommended plan of corrective action to cure the claimed
defaults or deficiencies in a manner satisfactory to it; (B) the
wholesaler was afforded a reasonable opportunity to assert good faith
efforts to comply with the agreement by curing the claimed defaults or
deficiencies specified in said notice within the time provided for in
clause (C) of this subparagraph; and (C) the wholesaler was afforded
fifteen days after receipt of such notice to submit a written plan of
corrective action to comply with the agreement by curing the claimed
non-compliance and seventy-five days to cure such non-compliance in
accordance with the plan. Provided, however, that such period for cure
may be increased or reduced to a commercially reasonable period by an
order of a court in this state entered after a hearing at which the
brewer has the burden to demonstrate that the claimed defaults or
deficiencies can be substantially rectified in the period of time
afforded the wholesaler or that, after receipt of notice of default or
deficiency as provided for in subdivision five of this section, the
wholesaler has intentionally engaged in an affirmative course of conduct
in which the brewer`s current marketing plans and other trade secrets
are disclosed to a third party without the prior consent of the brewer
or in which the wholesaler acts or threatens to act to significantly
impair, harm or dilute the reputation or competitive position of the
brewer or otherwise irreparably injure the brewer, its brands or
trademarks. Provided, further however: (1) that such period for cure
need not exceed forty-five days if within the twelve months immediately
following a cure, the wholesaler intentionally engages in conduct which
repeats the same specified default and deficiency which the brewer had
deemed cured; and (2) that such period for cure need not exceed sixty
days in the event that during the twelve month period preceding the
notice, the total case purchases by the wholesaler of the affected
products of the brewer account for less than one-half of one percent of
the wholesaler`s aggregate case purchases from all sources or one
thousand cases. For purposes of this subdivision, case purchases of
affected products whether package or draught shall be computed in
twenty-four twelve ounce equivalence units.
(f) "Good faith" means honesty in fact and the observance of
reasonable commercial standards in the trade.
(g) "Material modification" of an agreement or to "materially modify"
means and includes a substantial and significant change in the
competitive circumstances under which the agreement was entered into and
is performed which is caused by a brewer without fault on the part of
the wholesaler.
(h) "Multiple brands wholesaler" means a wholesaler which pursuant to
agreements with different brewers holds the rights to purchase, resell,
warehouse or physically deliver two or more competing products in
substantially the same geographic area or to the same customer class.
(i) "Fair market value of distribution rights" means the amount a
willing seller, under no compulsion to sell, would be willing to accept
and a willing buyer, under no compulsion to purchase, would be willing
to pay for the distribution rights.
3. Written agreement required. Except as provided for in subdivision
ten of this section, beer offered for sale in this state by a brewer to
a beer wholesaler shall be sold and delivered pursuant to a written
agreement which conforms to the provisions of this section and which
sets forth all essential and material terms, requirements, standards of
performance and conditions of the business relationship between a brewer
and a beer wholesaler. Such agreement may be cancelled, terminated,
materially modified or not renewed for good cause as defined in this
section, provided the brewer has acted in good faith.
4. Termination for cause and opportunity to cure. (a) No brewer may
cancel, fail to renew, or terminate an agreement unless the party
intending such action has good cause for such cancellation, failure to
renew, or termination and in any case in which prior notification is
required under this section, the party intending to act has furnished
said prior notification as provided for in subdivision five of this
section and the wholesaler has failed to cure such defaults or
deficiencies after a period for cure, as provided for in clause (C) of
subparagraph (ii) of paragraph (e) of subdivision two of this section.
(b) No brewer shall amend or materially modify or otherwise terminate
any essential and material term or requirement of an agreement unless
the brewer has good cause therefor and has furnished the affected party
with at least fifteen days prior notification as required by subdivision
five of this section.
5. Notice of default or deficiency. (a) Except as provided in
paragraph (d) of this subdivision, no brewer may cancel, fail to renew
or terminate an agreement unless the brewer or beer wholesaler furnished
prior notification in accordance with paragraph (c) of this subdivision.
(b) Notwithstanding any agreement, no brewer or beer wholesaler may
materially amend or modify an essential and material term or requirement
unless the brewer or beer wholesaler furnished prior notification in
accordance with paragraph (c) of this subdivision.
(c) The notification required under paragraphs (a) and (b) of this
subdivision shall be in writing and sent to the affected party by
certified mail. Such notification shall contain:
(i) a statement of intent to cancel, not renew, otherwise terminate,
materially amend or modify an agreement;
(ii) a statement of all reasons therefor, stated with particularity;
and
(iii) the date on which such action shall take effect.
(d) A brewer or beer wholesaler may cancel, fail to renew or otherwise
terminate an agreement without furnishing the prior notification
required under this section only:
(i) in the event the affected party has made an assignment for the
benefit of creditors or similar disposition of all or substantially all
of the assets of such party`s business;
(ii) in the event of a conviction or plea of guilty or no contest to a
felony which in the reasonable judgment of the brewer may adversely
affect the goodwill or interests of the wholesaler or brewer;
(iii) in the event of the revocation or suspension for thirty-one days
or more of any license or permit required of the wholesaler for the
normal operation of its business;
(iv) in the event there was fraudulent conduct on the part of the
brewer or beer wholesaler in its dealings with the other party;
(v) in the event of the failure by either party to pay sums of money
to the other party when due or if either the wholesaler or brewer takes
any action which would provide grounds for immediate termination
pursuant to the reasonable terms of a written enforceable agreement
between them, which was freely entered into without threat of
termination or other coercion or compulsion and was in full force and
effect sixty days from the effective date of the chapter of the laws of
nineteen hundred ninety-seven which amended this subparagraph;
(vi) in the event the brewer and beer wholesaler voluntarily agree in
writing to terminate the agreement.
6. Right of action. If a brewer fails to comply with the provisions of
this section, a beer wholesaler may maintain a civil action in a court
of competent jurisdiction within this state for damages sustained in
accordance with the laws of this state which shall govern all disputes
arising under an agreement or by reason of its making and performance.
In any such action the court may grant such equitable relief as is
necessary or appropriate, considering the purposes of this section, to
remedy the effects of any failure to comply with the provisions of this
section or the effects of conduct prohibited hereunder, including
declaratory judgment, mandatory or prohibitive injunctive relief, or
preliminary or other interim equitable relief; provided, however, that
permanent injunctive relief shall not be granted to prohibit the
effectiveness of a termination or non-renewal of an agreement in
furtherance of a policy of consolidation that is in compliance with
subparagraph (i) of paragraph (e) of subdivision two of this section. In
any legal action challenging any cancellation, termination or failure to
renew, or where an issue is the brewer`s compliance with the provisions
of subparagraph (i) of paragraph (e) of subdivision two of this section,
the brewer shall have the burden of proof that its action was based upon
good cause, provided however, the wholesaler shall retain the burden of
proof in all other respects. The rights and remedies provided in this
section to a beer wholesaler with respect to an agreement with a brewer
and to an affected wholesaler or an affected brewer shall be intended to
supplement and not be exclusive of any rights and remedies otherwise
available pursuant to any other statute, or at law or equity.
7. Reasonable compensation. (a) Any brewer who shall implement a
national or regional consolidation policy, pursuant to this section,
shall not terminate its relationship with an affected wholesaler until
compensation as provided for in this subdivision has been paid. Such
brewer shall pay the affected beer wholesaler the fair market value of
the distribution rights which will be lost or diminished by reason of
the implementation of such policy, together with fair and reasonable
compensation for other damages sustained.
(b) Every brewer who without good cause amends, cancels, terminates,
materially modifies or fails to renew any agreement, or who in violation
of this section causes a beer wholesaler to resign from an agreement or
denies or withholds consent to any assignment, transfer or sale of a
beer wholesaler`s business assets or capital stock or other equity or
debt securities, shall pay the affected beer wholesaler the fair market
value of the beer wholesaler`s business, including distribution rights,
which have been lost or diminished as the result of the brewer`s
actions.
(c) In the event that the brewer and the beer wholesaler are unable to
agree on the compensation to be paid for the value of the beer
wholesaler`s business and assets, the matter may with the consent of
both the brewer and the beer wholesaler, be submitted to a neutral
arbitrator to be selected by the parties; if they cannot agree on such
an arbitrator, the same shall be selected by a judge of a court of
competent jurisdiction. No brewer or beer wholesaler may impose binding
arbitration of any issue as a term or condition of an agreement.
Arbitration costs shall be equally divided by the beer wholesaler and
the brewer. The award of the arbitrator shall be confirmed by a court of
competent jurisdiction in this state, the judgment of which shall be
binding.
8. Sale and transfer of beer wholesaler`s business. No brewer shall
unreasonably withhold or delay its approval of any assignment, sale or
transfer of all or any portion of beer wholesaler`s corporate equity or
debt or assets, including the beer wholesaler`s rights and obligations
under the terms of an agreement, whenever the person or persons to be
substituted meet objectively reasonable standards imposed by the brewer.
A wholesaler who sells, assigns or transfers an agreement made pursuant
to this section shall provide written notice of such sale, assignment or
transfer to all other brewers with whom it has entered agreements.
9. (a) A brewer qualified to do business in the state of New York may
hold an interest in a limited partnership licensed by the authority as a
wholesaler, when the brewer or its affiliate is a limited partner and
the beer wholesaler is the general partner. Notwithstanding any other
provision of law, such brewer may loan money to a general partner of an
aforementioned limited partnership. Provided, however, any brewer or
its affiliate who holds an interest in a limited partnership licensed by
the authority as a wholesaler or who loans money to a general partner of
such limited partnership may only exercise such control of the business
as permitted by section 121-303 of the partnership law.
(b) Notwithstanding subdivision (a) of this subdivision, no brewer or
its affiliate may acquire or hold an interest in or loan money to a
general partner of a multiple brands wholesaler unless and until all
other brewers having agreements with said multiple brands wholesaler
have been afforded sixty days prior written notice of the particular
terms and conditions of the limited partnership or loan agreement or of
any change therein. A "loan" for purposes of this subdivision shall not
include bona fide credit terms for product purchases customarily
extended by a brewer to wholesalers in the normal course of business.
(c) For one hundred twenty days after the formation, licensing and
commencement of operations as a beer wholesaler of a limited partnership
or the making of a loan, and upon at least fifteen days prior
notification as required by subdivision five of this section, a brewer
may terminate an agreement with a multiple brands wholesaler in the
event: (i) a competing brewer or its affiliate becomes a limited partner
with or loans money to a general partner of a multiple brands
wholesaler, (ii) by reason of said loan, the performance of a loan
agreement, or the terms or conduct of the limited partnership, there is
a reasonable likelihood that competition between brands of the competing
brewers has been or may be significantly reduced in a relevant
geographic area or market, and (iii) in lieu of other rights and
remedies it might have under this chapter to terminate for good cause,
the terminating brewer pays compensation to the multiple brands
wholesaler.
10. Coverage. (a) This section shall not apply to written agreements
that were in effect prior to the effective date of this section which
set forth all terms and conditions of material significance governing
the relationship between the brewer and beer wholesaler, including but
not limited to the grounds and procedures which govern: (i) termination
of the relationship; (ii) approval and disapproval of managers; (iii)
change in ownership; and (iv) whether or not the wholesaler is entitled
to compensation in the event the wholesaler is terminated for deficient
performance under such agreement or without good cause. Provided,
however, that this section shall apply to any agreement entered into,
and renewals, extensions, amendments or conduct constituting a material
modification of an agreement on or after the effective date of this
section.
(b) Where an agreement between a brewer and beer wholesaler in effect
prior to the effective date of this section is continuous in nature or
has no specific duration or has no renewal provision and fails to set
forth all terms and conditions of material significance governing the
relationship between the brewer and beer wholesaler, including but not
limited to the grounds and procedures which govern: (i) termination of
the relationship; (ii) approval and disapproval of managers; (iii)
change in ownership; and (iv) whether or not the wholesaler is entitled
to compensation in the event the wholesaler is terminated for deficient
performance under such agreement or without good cause; such agreement
shall be considered for purposes of this section to have been renewed
sixty days after the effective date of this section.
11. The requirements of this section may not be altered, waived or
modified by written or oral agreement in advance of a bona fide case and
controversy arising under a written agreement complying with this
section.
S 56. License fees. 1. The annual fee for a brewer`s license shall be
four thousand dollars, unless the annual production of the brewer is
less than sixty thousand barrels per year, in which case the annual fee
shall be three hundred twenty dollars.
2. The annual fee for a wholesaler`s beer license shall be eight
hundred dollars.
3. The annual fee for a vendor`s license shall be one hundred
forty-four dollars.
4. The annual fee for a license to sell beer at retail not to be
consumed on the premises where sold shall be one hundred ten dollars.
Where, however, the applicant is the holder of two such licenses, the
annual fee for each additional license thereafter issued to such
licensee shall be double the amount hereinabove set forth.
5. The annual fee for a license to sell beer at retail to be consumed
on the premises where sold shall be three hundred twenty dollars in
cities having a population of one hundred thousand or over, and one
hundred sixty dollars elsewhere; provided, however, that where the
premises to be licensed remain open only within the period commencing
April first and ending October thirty-first of any one year or only
within the period commencing October first and ending the following
April thirtieth, the liquor authority, in its discretion, may grant a
summer or winter license effective only for such appropriate period of
time, for which an annual fee of one hundred sixty dollars shall be paid
where the premises are located in cities having a population of one
hundred thousand or over, and eighty dollars where such premises are
located elsewhere.
6. The annual fee for selling beer upon any railroad car to be
consumed on such car or any car connected therewith shall be ninety-six
dollars for each railroad car licensed.
7. The annual fee for selling beer upon any vessel in this state,
other than one regularly and exclusively engaged in the business of
carrying passengers for hire, by charter or otherwise, for fishing
purposes, to be consumed on such vessel, shall be one hundred sixty
dollars for each vessel licensed. The annual fee for selling beer upon a
vessel regularly and exclusively engaged in the business of carrying
passengers for hire, by charter or otherwise, for fishing purposes, to
be consumed on such vessel, shall be forty dollars for each vessel
licensed. The annual fee for selling beer for off-premise consumption
upon a vessel regularly and exclusively engaged, as a duly licensed
supply ship, in furnishing supplies to other vessels, shall be eighty
dollars.
8. The annual fee for selling beer at any baseball park, race track or
outdoor athletic field or stadium, to be consumed in any such baseball
park, race track, or outdoor athletic field or stadium, shall be one
hundred ninety-two dollars.
9. The annual fee for a license to sell beer and wine products at
retail not to be consumed on the premises where sold shall be one
hundred ninety-eight dollars.
10. The annual fee for a license to sell beer and wine products at
retail not to be consumed on the premises where sold, when the applicant
is the holder of two such licenses, the annual fee for each additional
license thereafter issued to such licensee shall be three hundred
fifty-two dollars.
S 56-a. Filing fees and refunds. 1. In addition to the annual fees
provided for in this chapter, there shall be paid to the authority with
each initial application for a license filed pursuant to section
fifty-one, fifty-three, fifty-eight, sixty-one, sixty-two, seventy-six
or seventy-eight of this chapter, a filing fee of two hundred dollars
with each initial application for a license filed pursuant to section
sixty-three, sixty-four, sixty-four-a or sixty-four-b of this chapter, a
filing fee of one hundred dollars; with each initial application for a
license filed pursuant to section fifty-three-a, fifty-four, fifty-five,
fifty-five-a, seventy-nine, eighty-one or eighty-one-a of this chapter,
a filing fee of fifty dollars; with each initial application for a
permit filed pursuant to section seventy-seven, ninety-one,
ninety-one-a, ninety-two, ninety-two-a, ninety-three, ninety-three-a, if
such permit is to be issued on a calendar year basis, ninety-four,
ninety-five, ninety-six or ninety-six-a, or pursuant to subdivisions b,
c, e or j of section ninety-nine-b if such permit is to be issued on a
calendar year basis, or for an additional bar pursuant to subdivision
four of section one hundred of this chapter, a filing fee of ten
dollars; and with each application for a permit under section
ninety-three-a, other than a permit to be issued on a calendar year
basis, ninety-seven, ninety-eight, ninety-nine, or ninety-nine-b of this
chapter, other than a permit to be issued pursuant to subdivisions b, c,
e or j of said section ninety-nine-b on a calendar year basis, a filing
fee of five dollars.
2. In addition to the annual fees provided for in this chapter, there
shall be paid to the authority with each renewal application for a
license filed pursuant to section fifty-one, fifty-three, fifty-eight,
sixty-one, sixty-two, seventy-six or seventy-eight of this chapter, a
filing fee of one hundred dollars; with each renewal application for a
license filed pursuant to section sixty-three, sixty-four, sixty-four-a
or sixty-four-b of this chapter, a filing fee of ninety dollars; with
each renewal application for a license filed pursuant to section
seventy-nine, eighty-one or eighty-one-a of this chapter, a filing fee
of twenty-five dollars; and with each renewal application for a license
or permit filed pursuant to section fifty-three-a, fifty-four,
fifty-five, fifty-five-a, seventy-seven, ninety-one, ninety-one-a,
ninety-two, ninety-two-a, ninety-three, ninety-three-a, if such permit
is issued on a calendar year basis, ninety-four, ninety-five, ninety-six
or ninety-six-a of this chapter or pursuant to subdivisions b, c, e or j
of section ninety-nine-b, if such permit is issued on a calendar year
basis, or with each renewal application for an additional bar pursuant
to subdivision four of section one hundred of this chapter, a filing fee
of thirty dollars.
3. If the authority shall deny an application filed pursuant to this
chapter it shall return the annual fee to the applicant and retain the
filing fee.
S 57. License fees; when due and payable; fee for part of year. 1.
(a) Except as otherwise provided pursuant to section fifty-seven-a, each
license issued pursuant to this article other than the one specified in
paragraph (b) of this subdivision shall be effective for a license year
expiring on the thirtieth day of June following the date of its issuance
and the license fee prescribed therefor shall be the license fee due and
payable therefor and shall be paid in advance at the time of the
application as provided for in this article.
(b) Each license issued pursuant to section fifty-five-a of this
article shall be effective for a license year expiring on the
thirty-first day of March following the date of its issuance and the
license fee prescribed therefor shall be the license fee due and payable
therefor and shall be paid in advance of the time of the application as
provided for in this article.
2. When application for any license under this article is made after
the commencement of the license year hereinbefore provided the license
fee therefor shall, for the balance of the license year, be in
proportion as the remainder of such year shall bear to the whole year,
except that it shall in no case be for less than one-half of such year.
S 57-a. Change in duration of licenses. The liquor authority is
authorized to change the periods during which the licenses authorized by
sections fifty-three-a, fifty-four, fifty-five and fifty-five-a shall be
effective and to establish the commencement dates, duration and
expiration dates thereof, provided that no such license shall be
effective for a period in excess of three years. When any change or
changes are made in the duration of any such license, the license fee
shall be equal to the annual license fee specified in this article
multiplied by the number of years for which such license is issued. The
liquor authority may make such rules as shall be appropriate to carry
out the purpose of this section.