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 alcoholic beverages to any  retail  licensee  except  for  cash  to  be  paid  at  the  time of delivery or 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 suchmanufacturer  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.