421 - Registration of distributors.
§ 421. Registration of distributors. 1. General. The commissioner, upon the application of a distributor, shall register such distributor in suitable books to be kept by the department for that purpose, conditioned upon the obtaining of appropriate licenses pursuant to the alcoholic beverage control law, and the continuance of such license shall be a continuing condition of registration as a distributor under this article. The application shall be in a form and contain such data as the commissioner shall prescribe. No distributor, unless so registered, shall make any sale of alcoholic beverages within this state, except a sale, if any, as to which this state is without power to impose such condition. No person, unless so registered, shall (i) import or cause any liquors to be imported in this state for sale or use within this state, (ii) purchase a warehouse receipt and pursuant to such purchase then cause liquors covered by such receipt to be removed from a warehouse in this state or (iii) except in accordance with clause (i) or (ii) of paragraph (b) of subdivision four of section four hundred twenty of this article, produce, distill, manufacture, compound, mix or ferment any such liquors within this state for sale. Provided, however, that the commissioner may exclude from registration requirements any person who is a distributor of liquors solely by reason of the importation into this state of no more than ninety liters of liquors during a one-year period for such person's personal use and consumption to register as a distributor with respect to liquor. Provided, further, that an abbreviated registration in the from of a permit, without a bond, may be instituted by the commissioner for the purpose of authorizing the importation of up to three hundred sixty liters of liquors per year into this state by an individual for such individual's personal use and consumption in this state. 2. Temporary restraining order and permanent injunction against unlawful importation and a forfeiture of unlawfully imported or produced liquors. (a) In an action commenced pursuant to this subdivision whenever evidence is furnished by the commissioner showing a substantial likelihood that a person not registered as a distributor as required by this article has imported or may import liquors into this state or caused or may cause liquors to be imported into this state for sale or use in this state or has produced, distilled, manufactured, compounded, mixed or fermented or may produce, distill, manufacture, compound, mix or ferment liquors within the state or, pursuant to a purchase of a warehouse receipt, has caused or may cause liquors covered by such receipt to be removed from a warehouse in this state, the court, taking into consideration the fungible nature of such liquors, may make a temporary order without notice prohibiting such person and his agents from selling, transferring or otherwise disposing of any liquors or any liquors and also prohibiting all other persons in possession of or having control over the same from selling, releasing, transferring or otherwise disposing of any liquors imported or caused to be imported, produced, distilled, manufactured, compounded, mixed or fermented, sold or transferred or removed by such person not so registered pending a hearing for a preliminary injunction. (b) Upon granting a temporary order, the court shall direct that a hearing be held at the earliest possible time upon such notice and service as the court shall direct. Where, after such opportunity for a hearing, the court determines that there is a likelihood that the commissioner will prevail in such action, the court may grant a preliminary injunction restraining the sale, release, transfer or other disposition of liquors subject to the temporary order. (c) (1) Whenever the commissioner shall discover that any person not registered as a distributor as required by this article has importedliquors into this state or caused liquors to be imported into this state for sale or use in this state or has produced, distilled, manufactured, compounded, mixed or fermented liquors within the state or, pursuant to a purchase of a warehouse receipt, has caused liquors covered by such receipt to be removed from a warehouse in this state, the commissioner may commence an action in supreme court for a permanent injunction and forfeiture of liquors. If it is established by a preponderance of the evidence that liquors were imported or caused to be imported into this state for sale or use in this state, were produced, distilled, manufactured, compounded, mixed or fermented, or were caused to be removed from a warehouse in this state by the purchaser of a warehouse receipt with respect to such liquors, by any person not registered as a distributor, as required by this article, the court shall grant a judgment (i) permanently enjoining such person and his agents from selling, transferring or otherwise disposing of any such liquors or any liquors within this state and (ii) declaring the forfeiture of any liquors that were so imported, caused to be imported, produced, distilled, manufactured, compounded, mixed, fermented or removed by such person. (2) With respect to liquors that were imported, caused to be imported, produced, distilled, manufactured, compounded, mixed, fermented or removed by a person not registered as a distributor as required by this article or that were unlawfully sold or transferred by such person, if it is established by a preponderance of the evidence that any other person in possession of or having control over such liquors was not a purchaser or transferee in good faith of such liquors with respect to the fact that such liquors were so imported, caused to be imported, produced, distilled, manufactured, compounded, mixed, fermented or removed by a person not registered as a distributor as required by this article or that such liquors were so unlawfully sold or transferred by such person, the court shall grant a judgment (i) permanently enjoining such other person and such person's agents from selling, releasing, transferring or otherwise disposing of any such liquors and (ii) declaring the forfeiture of such liquors in the possession or under the control of such other person. (d) The commissioner may, at any time subsequent to the granting of the temporary order pursuant to paragraph (a) of this subdivision, with the approval of the court, consent to a sale of liquors subject to such temporary order which is in the possession or under the control of a person other than the person or the agent of the person who imported, caused to be imported, produced, distilled, manufactured, compounded, mixed, fermented, removed or unlawfully sold or transferred such liquors. As a condition of granting permission to a sale of liquors pursuant to this subdivision, the commissioner shall require the payment of all taxes, penalties and interest imposed by and pursuant to the authority of this chapter with respect to such liquors. (e) (1) At any time during the pendency of an action under this section, the liquors subject to a temporary, preliminary or permanent order hereunder may be released from the scope of such order if there is given an undertaking, in an amount equal to the market value of such liquors plus any excise, state and local sales and use and federal excise taxes, to the effect that there will be paid to the commissioner the amount of the market value of such liquors and such taxes in the event that such liquors are adjudged forfeited. (2) Any person enjoined by a temporary order or a preliminary injunction issued pursuant to this subdivision or other person interested in any such liquors may move at any time, on notice to all parties, to vacate or modify it.(f) The procedures of the civil practice law and rules applicable to temporary restraining orders, preliminary injunctions and permanent injunctions not inconsistent with this subdivision shall apply to temporary orders, preliminary injunctions and permanent injunctions issued under this subdivision. The procedural provisions set forth in paragraph three of subdivision (d) and in subdivision (j) of section eighteen hundred forty-five of this chapter shall apply to the forfeiture proceedings under this subdivision and, in respect to a declaration of forfeiture under this subdivision, the court may direct the commissioner to sell or otherwise dispose of such forfeited liquors on such conditions the commissioner deems most advantageous and just under the circumstances. The commissioner shall not be required to file any undertaking in connection with an action pursuant to this subdivision.