S T A T E   O F   N E W   Y O R K
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                                  1584

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 3, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to  the  marketing
  of motor fuels

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

  Section 1. Subdivision 1 of section 199-a of the general business law,
as added by chapter 265 of the laws of  1975,  is  amended  to  read  as
follows:
  1.  "Distributor"  means any person [engaged in the sale, consignment,
or distribution of motor fuels to dealers], INCLUDING ANY  AFFILIATE  OF
SUCH PERSON, WHO PURCHASES MOTOR FUEL FOR SALE, CONSIGNMENT, OR DISTRIB-
UTION  TO  ANOTHER,  OR  WHO  RECEIVES  MOTOR  FUEL  ON CONSIGNMENT, FOR
CONSIGNMENT OR DISTRIBUTION TO THEIR  OWN  MOTOR  FUEL  ACCOUNTS  OR  TO
ACCOUNTS OF THEIR SUPPLIER.  "DISTRIBUTOR" DOES NOT INCLUDE A PERSON WHO
IS AN EMPLOYEE OF, OR MERELY SERVES AS A COMMON CARRIER PROVIDING TRANS-
PORTATION SERVICE FOR SUCH SUPPLIER.
  S  2.  Section  199-a of the general business law is amended by adding
seven new subdivisions 6, 7, 8, 9, 10, 11 and 12 to read as follows:
  6. "REFINER" MEANS ANY PERSON ENGAGED IN THE REFINING OF CRUDE OIL  TO
PRODUCE MOTOR FUEL, AND INCLUDES ANY AFFILIATE OF SUCH PERSON.
  7.  "MOTOR  FUEL" MEANS GASOLINE AND DIESEL FUEL OF A TYPE DISTRIBUTED
FOR  SELF-PROPELLED  VEHICLES  DESIGNED  PRIMARILY  FOR  USE  ON  PUBLIC
STREETS, ROADS AND HIGHWAYS.
  8.  "CONSUMER  RETAIL PRICE" MEANS THE PRICE PER GALLON AT WHICH MOTOR
FUEL IS SOLD TO THE PUBLIC AT A DIRECT OPERATED  SERVICE  STATION.    IF
MOTOR  FUEL  IS  SOLD  WITH ANOTHER ITEM OR SERVICE AT A COMBINED PRICE,
THEN THE CONSUMER RETAIL PRICE SHALL BE ADJUSTED TO  INCLUDE  THE  PRICE
PER  GALLON OF ANY SUCH ITEM OR SERVICE LESS THE COST PER GALLON OF SUCH
ITEM OR SERVICE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07782-01-9

              

S. 1584                             2

  9. "DIRECT OPERATED SERVICE STATION" MEANS A SERVICE STATION  OPERATED
BY A REFINER OR DISTRIBUTOR OF PETROLEUM PRODUCTS.
  10.  "SAME OR SIMILAR GRADE OR QUALITY OF MOTOR FUEL" MEANS MOTOR FUEL
CONTAINING AN ADDITIVE WHICH DOES NOT CHANGE THE OCTANE OR CETANE RATING
OF SUCH PRODUCT BY MORE THAN ONE POINT.
  11. "SAME GEOGRAPHIC AREA" MEANS THE AREA SERVED BY ANY TERMINAL  FROM
WHICH  A  DIRECT OPERATED SERVICE STATION RECEIVES ITS MOTOR FUEL OR ANY
TERMINAL WITHIN TEN MILES OF SUCH DIRECT OPERATED SERVICE STATION.
  12. "SCHEME" MEANS ANY THREAT, INTIMIDATION,  COMMUNICATION,  BOYCOTT,
PATTERN OF ACTION, INDUCEMENT OR COERCION.
  S 3. The general business law is amended by adding a new section 199-o
to read as follows:
  S  199-O. PROHIBITED MARKETING PRACTICES. 1. NO REFINER OR DISTRIBUTOR
SHALL SELL MOTOR FUEL TO ANY DEALER AT A PRICE THAT EXCEEDS  NINETY-FOUR
PERCENT  OF  THE  CONSUMER RETAIL PRICE FOR THE SAME OR SIMILAR GRADE OR
QUALITY OF MOTOR FUEL SOLD FROM A DIRECT OPERATED SERVICE STATION IN THE
SAME GEOGRAPHIC AREA.
  2. NO REFINER OR DISTRIBUTOR SHALL ENTER INTO ANY SCHEME OR  AGREEMENT
TO  SET,  CHARGE OR MAINTAIN MAXIMUM RETAIL PRICES OF MOTOR FUEL, EXCEPT
THAT THIS SUBDIVISION SHALL NOT APPLY TO A REFINER'S,  DISTRIBUTOR'S  OR
WHOLESALER'S RETAIL SALES AT ITS DIRECT OPERATED SERVICE STATION.
  3. A VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL FINE NOT
TO  EXCEED  FIVE  THOUSAND  DOLLARS.  THE SECOND OFFENSE AND ANY OFFENSE
COMMITTED THEREAFTER SHALL BE PUNISHABLE BY A CIVIL FINE NOT  TO  EXCEED
TEN THOUSAND DOLLARS.
  4.  WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION AN APPLICATION
MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF  THE  PEOPLE  OF  THE
STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL
PROCEEDING  TO  ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF
NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF  SUCH
VIOLATION;  AND  IF  IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR
JUSTICE THAT THE DEFENDANT HAS,  IN  FACT,  VIOLATED  THIS  SECTION,  AN
INJUNCTION  MAY  BE  ISSUED  BY  THE  COURT  OR  JUSTICE,  ENJOINING AND
RESTRAINING ANY FURTHER VIOLATIONS, WITHOUT  REQUIRING  PROOF  THAT  ANY
PERSON  HAS,  IN  FACT,  BEEN  INJURED  OR  DAMAGED THEREBY. IN ANY SUCH
PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO  THE  ATTORNEY  GENERAL  AS
PROVIDED  IN  PARAGRAPH  SIX  OF SUBDIVISION (A) OF SECTION EIGHTY-THREE
HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES, AND  DIRECT  RESTITU-
TION.  IN  CONNECTION  WITH  ANY  SUCH PROPOSED APPLICATION THE ATTORNEY
GENERAL IS AUTHORIZED TO TAKE PROOF AND  MAKE  A  DETERMINATION  OF  THE
RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRAC-
TICE LAW AND RULES.
  5.  ANY DEALER WHO HAS BEEN INJURED BY REASON OF ANY VIOLATION OF THIS
SECTION MAY BRING AN ACTION IN HIS OR HER OWN NAME TO ENJOIN SUCH UNLAW-
FUL ACT OR PRACTICE, AN ACTION TO RECOVER HIS OR HER ACTUAL  DAMAGES  OR
FIVE  THOUSAND  DOLLARS, WHICHEVER IS GREATER, OR BOTH SUCH ACTIONS. THE
COURT MAY, IN ITS DISCRETION, INCREASE THE AWARD OF DAMAGES TO AN AMOUNT
NOT TO EXCEED THREE TIMES THE ACTUAL DAMAGES, IF  THE  COURT  FINDS  THE
DEFENDANT  WILLFULLY  OR  KNOWINGLY VIOLATED THIS SECTION. THE COURT MAY
AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S 4. This act shall take effect on the one hundred twentieth day after
it shall have become a law.