S T A T E   O F   N E W   Y O R K
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                                  5922

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                              March 8, 2013
                               ___________

Introduced  by M. of A. ORTIZ -- read once and referred to the Committee
  on Economic Development

AN ACT to amend the alcoholic beverage control law, in relation to regu-
  lating the retail sale of flavored malt beverages

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    Subdivision 12-c of section 3 of the alcoholic beverage
control law, as renumbered by chapter 366 of the laws of 1992, is renum-
bered subdivision 12-d and a new subdivision 12-c is added  to  read  as
follows:
  12-C. "FLAVORED MALT BEVERAGE" MEANS AND INCLUDES ANY ALCOHOLIC BEVER-
AGE OF ANY NAME OR DESCRIPTION THAT IS MANUFACTURED FROM MALT, WHOLLY OR
IN PART, OR FROM ANY SUBSTITUTE THEREFOR; AND CONTAINING MORE THAN EIGHT
PER  CENTUM ALCOHOL BY VOLUME WHICH IS A FERMENTED PRODUCT FOR WHICH THE
FORMULA THEREOF IS REQUIRED TO BE FILED WITH  THE  FEDERAL  ALCOHOL  AND
TOBACCO  TAX AND TRADE BUREAU PURSUANT TO 27 CODE OF FEDERAL REGULATIONS
S 25.55 (A), AS SUCH REGULATIONS SHALL BE AMENDED FROM TIME TO TIME.
  S 2.  Section 65 of the alcoholic beverage control law is  amended  by
adding a new subdivision 3-a to read as follows:
  3-A.  NO  PERSON, OR HIS OR HER AGENT OR EMPLOYEE, SHALL SELL, DELIVER
OR GIVE AWAY, OR CAUSE, PERMIT OR PROCURE TO BE SOLD, DELIVERED OR GIVEN
AWAY TO ANY PERSON, ACTUALLY OR APPARENTLY, UNDER THE AGE OF  TWENTY-ONE
YEARS, ANY FLAVORED MALT BEVERAGE. A VIOLATION OF THIS SUBDIVISION SHALL
BE A CLASS E FELONY AS DEFINED IN THE PENAL LAW.
  S  3.  Section 100 of the alcoholic beverage control law is amended by
adding a new subdivision 8 to read as follows:
  8. NO LICENSEE, PERMITTEE OR PERSON SHALL SELL, DELIVER OR GIVE  AWAY,
OR  CAUSE,  PERMIT  OR  PROCURE  TO  BE SOLD, DELIVERED OR GIVEN AWAY AT
RETAIL IN THIS STATE ANY FLAVORED MALT BEVERAGE IN ANY CONTAINER  HAVING
A VOLUME IN EXCESS OF TWELVE OUNCES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09616-01-3

              

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  S  4.  Section 105 of the alcoholic beverage control law is amended by
adding a new subdivision 13 to read as follows:
  13.  (A)  EACH RETAIL LICENSEE FOR OFF-PREMISES CONSUMPTION THAT SELLS
FLAVORED MALT BEVERAGES SHALL SELL SUCH BEVERAGES  IN  AN  AREA  OF  THE
LICENSED  PREMISES THAT IS SEGREGATED FROM THE AREA WHERE OTHER BEVERAG-
ES, INCLUDING BEERS WHICH ARE NOT FLAVORED MALT BEVERAGES, ARE SOLD.  NO
FLAVORED  MALT  BEVERAGES  SHALL  BE  COMMINGLED WITH OTHER ALCOHOLIC OR
NONALCOHOLIC BEVERAGES.
  FURTHERMORE, THE SEGREGATED AREA OF THE  LICENSED  PREMISES  AT  WHICH
FLAVORED MALT BEVERAGES ARE SOLD SHALL BE LOCATED SO AS TO BE WITHIN THE
VIEW OF THE EMPLOYEES AT SUCH PREMISES' SALES COUNTER OF THE LICENSEE OR
WITHIN THE COVERAGE AREA OF VIDEO SURVEILLANCE EQUIPMENT WHICH IS VIEWED
BY THE EMPLOYEES OF THE LICENSEE DURING ALL PERIODS OF TIME IN WHICH THE
LICENSED PREMISES IS OPEN FOR BUSINESS.
  (B)  ALL  FLAVORED  MALT  BEVERAGES  SOLD  BY  A  RETAIL  LICENSEE FOR
OFF-PREMISES CONSUMPTION SHALL BE SOLD IN AN UNREFRIGERATED STATE AND NO
SUCH LICENSEE SHALL SELL ANY SUCH BEVERAGE WHICH HAS BEEN  COOLED  BELOW
THE ROOM TEMPERATURE OF THE LICENSED PREMISES.
  (C) AT THE FRONT OF THE SEGREGATED AREA OF THE LICENSED PREMISES WHERE
FLAVORED  MALT BEVERAGES ARE SOLD, THE LICENSEE SHALL CONSPICUOUSLY POST
A SIGN THAT STATES THAT (I) THESE BEVERAGES ARE  HIGH  ALCOHOL  FLAVORED
MALT  BEVERAGES  THAT  CONTAIN  MORE  THAN  EIGHT  PER CENTUM ALCOHOL BY
VOLUME, (II) THAT THESE BEVERAGES SHOULD  NOT  BE  CONFUSED  WITH  OTHER
ALCOHOLIC  OR  NONALCOHOLIC BEVERAGES WITH LOWER ALCOHOL CONTENT SUCH AS
BEER, AND (III) THE SALE OF SUCH BEVERAGES TO PERSONS UNDER THE  AGE  OF
TWENTY-ONE  YEARS  CARRIES  WITH  IT HEIGHTENED CRIMINAL PENALTIES.  THE
STATE LIQUOR AUTHORITY SHALL BE AUTHORIZED TO PROMULGATE RULES AND REGU-
LATIONS PROVIDING FOR THE FORM AND CONTENT OF SUCH NOTICES AND WARNINGS.
  S 5. Subdivision 2 of section 107-a of the alcoholic beverage  control
law,  as added by chapter 479 of the laws of 1940, is amended to read as
follows:
  2. Such regulations shall be calculated to prohibit deception  of  the
consumer;  to  afford  him OR HER adequate information as to quality and
identity; and to achieve national uniformity in this field in so far  as
possible.  IN ADDITION, FOR THE APPROVAL OF LABELS FOR CONTAINERS OF ANY
FLAVORED MALT BEVERAGE, THE LABEL OR CONTAINER THEREOF MUST:
  (A)  HAVE  A DISCLOSURE THAT IS EITHER PART OF THE LABEL OR AFFIXED TO
THE CONTAINER THAT ADVISES  PURCHASERS  THAT  THIS  IS  A  HIGH  ALCOHOL
FLAVORED  MALT  BEVERAGE (I) OVER CONSUMPTION OF THIS ALCOHOLIC BEVERAGE
MAY CAUSE A SIGNIFICANTLY HIGHER RISK OF ACCIDENTAL PHYSICAL  INJURY  TO
THE  CONSUMER OR OTHERS, OR ALCOHOL POISONING; AND (II) THE OPERATION OF
MOTOR VEHICLES AND OTHER MACHINERY SHOULD  BE  AVOIDED  AFTER  CONSUMING
THIS ALCOHOLIC BEVERAGE;
  (B)  BE  DESIGNED  SO  THAT IT CANNOT BE CONFUSED WITH OTHER BEVERAGES
THAT ARE NOT ALCOHOLIC AND ARE LEGALLY AVAILABLE  FOR  SALE  TO  PERSONS
UNDER  THE  AGE OF TWENTY-ONE YEARS, OR OTHER ALCOHOLIC BEVERAGES WITH A
LOWER ALCOHOL CONTENT SUCH AS BEER.  SUCH DESIGN MAY BE ACCOMPLISHED  BY
A LABEL DESIGN THAT PLACES A STRIPE OR OTHER INDICATOR TO SHOW THAT THIS
IS  A  HIGH ALCOHOL FLAVORED MALT BEVERAGE OR BY AFFIXING THE DISCLOSURE
REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION THAT  ALSO  CLEARLY  INDI-
CATES  THAT  THIS  IS  A  FLAVORED MALT BEVERAGE THAT CONTAINS MORE THAN
EIGHT PER CENTUM ALCOHOL BY VOLUME;
  (C) BE DESIGNED SO AS  NOT  TO  BE  ATTRACTIVE  TO  OR  ENCOURAGE  THE
CONSUMPTION OF SUCH ALCOHOLIC BEVERAGE BY PERSONS UNDER THE AGE OF TWEN-
TY-ONE  YEARS.  SUCH  DESIGN  MAY BE ACCOMPLISHED BY A LABEL DESIGN THAT

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CLEARLY INDICATES THAT THIS IS AN  ALCOHOLIC  BEVERAGE  THAT  CANNOT  BE
LEGALLY CONSUMED BY PERSONS UNDER THE AGE OF TWENTY-ONE YEARS; AND
  (D) PROVIDE NOTICE THAT THE SALE OF FLAVORED MALT BEVERAGES TO PERSONS
UNDER  THE  AGE  OF TWENTY-ONE YEARS CARRIES WITH IT HEIGHTENED CRIMINAL
PENALTIES.
  S 6. Clause (ii) of subparagraph 2 of paragraph (c) of  subdivision  4
of  section  107-a  of the alcoholic beverage control law, as amended by
chapter 490 of the laws of 1993, is amended to read as follows:
  (ii) the authority does not deny such application within  thirty  days
after receipt; PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY FLAVORED MALT
BEVERAGE,  THE  AUTHORITY  DOES  NOT  DENY  SUCH  APPLICATION WITHIN ONE
HUNDRED TWENTY DAYS AFTER RECEIPT SO THAT THE AUTHORITY HAS A SUFFICIENT
PERIOD OF TIME TO REVIEW SUCH LABEL AND  ENSURE  THAT  THE  REQUIREMENTS
ESTABLISHED IN SUCH SUBDIVISION ARE COMPLIED WITH.
  S 7. Severability. If any clause, sentence, paragraph, section or part
of  this act shall be adjudged by any court of competent jurisdiction to
be invalid and after exhaustion of  all  further  judicial  review,  the
judgment  shall  not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the  clause,  sentence,  para-
graph,  section or part of this act directly involved in the controversy
in which the judgment shall have been rendered.
  S 8. This act shall take effect on the one hundred eightieth day after
it shall have become a law.   Effective immediately,  the  state  liquor
authority  is authorized to add, amend and/or repeal any rules and regu-
lations necessary to implement the provisions of this act on its  effec-
tive date.