State of Illinois
91st General Assembly
Public Acts

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Public Act 91-0002

HB0152 Enrolled                                LRB9101262LDmb

    AN ACT in relation to liquor distribution.

    Be it enacted by the People of  the  State  of  Illinois,
represented in the General Assembly:

    Section  1.   Short  title.  This Act may be cited as the
Illinois Wine and Spirits Industry Fair Dealing Act of 1999.

    Section 5.  Definitions.  As used in this Act:
    "Commission"   means   the   Illinois   Liquor    Control
Commission.
    "Distributorship"  means  a business relationship, either
express or  implied,  whether  oral  or  written,  between  a
supplier  of  wine  or  spirits  (other  than (i) an Illinois
winery or (ii) a winery that has annual  case  sales  in  the
State  of  Illinois  less  than or equal to 10,000  cases per
year) for resale and a distributor of such products in  which
the  distributor  is  given  the  right  to sell a designated
product or products, in a generally defined geographic  area,
in  exchange  for an express or implied promise to market the
product or products. A registration under the Liquor  Control
Act of 1934 as amended is a distributorship.
    "Supplier"  means  a person who is a grantor of a wine or
liquor distributorship in  this  State  (other  than  (i)  an
Illinois  winery  or (ii) a winery that has annual case sales
in the State of Illinois less than or equal to 10,000   cases
per year).
    "Distributor"  means  a person who is a grantee of a wine
or liquor distributorship in this State.
    "Agreement" means  any  contract,  agreement,  course  of
dealing,  or arrangement, express or implied, whether oral or
written, for  a  definite  or  indefinite  period  between  a
supplier  (other than (i) an Illinois winery or (ii) a winery
that has annual case sales in the State of Illinois less than
or equal to  10,000    cases  per  year,  and  a  distributor
pursuant   to   which   a  distributor  has  been  granted  a
distributorship).
    "Good cause" means a failure by a distributor  to  comply
with  essential  and reasonable requirements imposed upon the
distributor by the supplier or bad faith in  the  performance
of  the  distributorship agreement.  The requirements may not
be unreasonably discriminating either by their  terms  or  in
the  methods  or  effects  of  enforcement  as  compared with
requirements imposed on other similarly situated distributors
by the supplier.  The requirements may  not  be  inconsistent
with this Act or in violation of any law or regulation.
    "Wine   and  liquor"  means  spirituous  liquor  or  wine
containing alcohol in excess of 10 percent by weight, but not
including beer and other malt beverages.
    "Person"  means  a  natural  person,  partnership,  joint
venture, corporation, or other entity,  and  includes  heirs,
assigns, successors, personal representatives, and guardians.
    "Illinois winery" means a winery located in Illinois.

    Section   10.   Legislative   declaration;  purposes  and
construction.
    (a)  The General Assembly makes  the  following  findings
and declarations:
         (i)  Pursuant   to   the   21st   Amendment  of  the
    Constitution of the United States, the  General  Assembly
    has  enacted  the  Liquor  Control  Act  of  1934,  which
    establishes  a  three-tier system of distribution of wine
    and spirits to the public.
         (ii)  This Act is enacted pursuant to  authority  of
    the  State  of  Illinois  and under the provisions of the
    21st Amendment  to  the  United  States  Constitution  to
    promote  the  public's  interest  in fair, efficient, and
    competitive distribution of wine and liquor products.
    (b)  This Act shall be construed and applied  to  promote
its underlying remedial purposes and policies.
    (c)  The provisions of this Act are of a public order and
cannot be waived.  Any contract or agreement purporting to do
so is void and unenforceable to that extent.
    (d)  This   Act   shall   govern  all  relations  between
distributors and suppliers to the full extent consistent with
the constitutions of this State and  of  the  United  States.
Accordingly,  Section 35, which clarifies existing rights and
obligations and establishes remedial provisions,  applies  to
all  agreements  between  a distributor and a supplier (other
than agreements with an Illinois winery or a winery that  has
annual case sales in the State of Illinois less than or equal
to  10,000    cases  per  year) whether those agreements were
entered into before or after the effective date of this  Act.
Sections   15  through  30  of  this  Act  shall  govern  all
agreements between a distributor and a supplier  (other  than
agreements  with  an  Illinois  winery  or  a winery that has
annual case sales in the State of Illinois less than or equal
to 10,000 cases per year), entered into after  the  effective
date  of  this  Act, including any renewal of an agreement in
existence on or  before  the  effective  date  of  this  Act.
Renewal  of  an  agreement with a designated term or duration
shall mean (i) establishment of a new term, (ii) extension of
the agreement on any other basis, or (iii) shipment  of  wine
or  spirits  to  the  distributor after the expiration of the
designated term or duration.   Renewal  of  an  agreement  in
place  on  a  month to month, year to year, or other periodic
basis shall mean (i) continuation of the distributorship into
the next month, year, or other period, (ii) extension of  the
distributorship on any other basis, or (iii) shipment of wine
or spirits to a distributor after the expiration of the month
or  other  periodic  basis  designated as the duration of the
distributorship in the agreement.  Renewal  of  an  agreement
without  a designated term or duration shall mean shipment of
wine or spirits to a distributor after the effective date.
    (e)  In accordance with Section 1.31 of  the  Statute  on
Statutes,  the  provisions of this Act are severable.  If any
provision or interpretation of this Act, or  the  application
of  such  interpretation or provision to any distributorship,
is held invalid, the application of the  Act  to  persons  or
circumstances other than those as to which it is held invalid
shall not be affected thereby.

    Section    15.     Cancellation    and    alteration   of
distributorships. No supplier  may  cancel,  fail  to  renew,
otherwise  terminate,  or  alter on a discriminatory basis an
agreement unless the party intending  that  action  has  good
cause for the cancellation, failure to renew, termination, or
alteration  and,  in  any case in which prior notification is
required under Section 20, the party  intending  to  act  has
furnished  the  prior notification and the affected party has
not eliminated the reasons specified in the notification  for
cancellation, failure to renew, or termination within 90 days
after the sending of the notification.  Each party shall make
a  good  faith effort to resolve disputes under this Section.
The burden of proving good cause is on the party who  asserts
it.

    Section  20.   Notice  of  termination,  cancellation, or
alteration.
    (a)  Except  as  provided  in  subsection  (c)  of   this
Section,  no  supplier  may  cancel, fail to renew, otherwise
terminate,  or  alter  an  agreement  unless   the   supplier
furnishes   prior  notification  to  the  affected  party  in
accordance with subsection (b).
    (b)  The notification required under subsection (a) shall
be in writing and sent to the  affected  party  by  certified

mail  not  less  than  90  days  before the date on which the
agreement  will  be   cancelled,   not   renewed,   otherwise
terminated, or altered.  The notification shall contain (i) a
statement  of  intention  to cancel, fail to renew, otherwise
terminate, or alter an agreement, (ii) a  complete  statement
of  reasons  therefore,  including all data and documentation
necessary to fully apprise the distributor of the reasons for
the action, (iii) the date on which  the  action  shall  take
effect,  and  (iv)  shall provide that the distributor has 60
days in which to rectify  any  claimed  deficiency.   If  the
deficiency  is  rectified within 60 days, the notice shall be
void.
    (c)  A supplier may cancel, fail to renew,  or  otherwise
terminate   an   agreement   without   furnishing  any  prior
notification for any of the following reasons:
         (1)  Distributor's assignment  for  the  benefit  of
    creditors,  or  similar disposition, of substantially all
    of the assets of such party's business.
         (2)  Insolvency of distributor or the institution of
    proceedings in bankruptcy by or against the distributor.
         (3)  Dissolution or liquidation of the distributor.
         (4)  Distributor's conviction of, or plea of  guilty
    or  no  contest  to,  a  charge  of  violating  a  law or
    regulation in this State that  materially  and  adversely
    affects  the  ability of either party to continue to sell
    wine or liquor  in  this  State,  or  the  revocation  or
    suspension  of a license or permit to sell wine or liquor
    in this State.
    (d)  The notification required under subsection (a) shall
be sent not  less  than  10  days  before  the  date  of  the
cancellation,  nonrenewal,  termination, or alteration of the
notice if the notice is based  on  (i)  failure  to  pay  any
account  when  due  and  upon demand by the supplier for such
payment, in accordance with agreed payment terms, or (ii) bad
faith in the performance of  the  distributorship  agreement.
If  the  notice is based on a failure to pay any account, the
distributor shall  have  10  days  in  which  to  remedy  the
default.   If  the  default  in payment is remedied within 10
days, the notice shall be void.

    Section 25.  Action for damages  and  injunctive  relief.
Parties to a distributorship may bring an action in any court
of   competent   jurisdiction  for  damages  sustained  as  a
consequence  of  the  violation,  and  may  also  be  granted
injunctive relief against unlawful termination, cancellation,
nonrenewal, or other harm. For  agreements  entered  into  or
renewed  after the effective date of this Act, this remedy is
an addition to the remedies provided in Section  35.   It  is
the  policy  of  this  State  to  avoid  unfair  or  wrongful
terminations.      Notwithstanding   any  provisions  of  any
agreement between a supplier and a distributor, the venue for
any  such  action  shall  be   at   the   location   of   the
distributorship and this Act shall apply.

    Section  30.   Application to arbitration agreements.  An
agreement between a supplier that is not an  Illinois  winery
or  a  winery  that  has  annual  case  sales in the State of
Illinois less than or equal to 10,000  cases per year  and  a
distributor  providing  for  binding  arbitration of disputes
shall be valid and enforceable in accordance with the Federal
Arbitration Act.  In the event that a dispute concerning  the
existence  of  good  cause  for  a termination, cancellation,
nonrenewal, or other harm is  resolved  through  arbitration,
the  definition  of good cause and the substantive provisions
of this Act shall apply.

    Section 35.  Procedural provisions; good faith;  role  of
Liquor Control Commission.
    (a)  This   Section   clarifies   existing   rights   and
obligations and establishes remedial procedures applicable to
registrations  under Section 6-9 of the Liquor Control Act of
1934.
    (b)  Under existing Illinois common  and  statutory  law,
suppliers,  other than (i) Illinois wineries or (ii) wineries
that have annual case sales in the  State  of  Illinois  less
than  or  equal to 10,000  cases per year, who have or should
have registered names of distributors under  Section  6-9  of
the  Liquor  Control  Act  of  1934,  granting  or confirming
distributors rights to sell at wholesale in this State,  have
an  obligation  to  act  in  good faith in all aspects of the
registration  and   distributorship   relationship,   without
discrimination  or  coercion  under  threat of retaliation or
termination  in  bad  faith,  and  in  conformity  with   any
emergency  or  final regulations issued by the Liquor Control
Commission  pursuant  to  Section  3-12  or  6-19  or   other
applicable  provision of the Liquor Control Act of 1934 or by
the Department of Revenue.  Under the existing obligation  to
act  in good faith, no registration or obligation to register
under Section 6-9 may be terminated, nor may a supplier  that
is  not  an  Illinois winery or a winery that has annual case
sales in the State of Illinois less than or equal  to  10,000
cases  per  year  fail  to  renew  or extend a product, name,
brand, registration,  or  an  agreement  with  a  distributor
except  by  acting  in  good  faith  in  all  aspects  of the
relationship, without discrimination or coercion, and not  in
retaliation  or  as a result of the distributor's exercise of
its right to petition the General Assembly, the Congress,  or
any  other unit or form of government for any purpose, to any
end, or for or against any proposition, provision, amendment,
bill, resolution, judgment, decision,  rule,  regulation,  or
interpretation.
    (c)  In  order to enforce the existing obligation of good
faith with respect to registrations under  Section  6-9,  the
Commission shall have power to:
         (1)  Prohibit or suspend any supplier that is not an
    Illinois winery or a winery that has annual case sales in
    the State of Illinois less than or equal to 10,000  cases
    per  year  or  its  successors  or  assigns found to have
    flagrantly  or   repeatedly   violated   the   obligation
    described  in  this  Section  from selling any product or
    products governed under the Liquor Control  Act  of  1934
    and  the  Twenty-First  Amendment  to  the  United States
    Constitution in Illinois.
         (2)  Order the supplier, if the supplier is  not  an
    Illinois winery or a winery that has annual case sales in
    the State of Illinois less than or equal to 10,000  cases
    per year, to continue providing products to a distributor
    at    prices   and   quantities   in   effect   for   the
    distributorship prior to any termination  or  failure  to
    renew   that   becomes   the  subject  of  a  dispute  or
    administrative proceedings under this Section  until  the
    matters  in  dispute  are determined by an order which is
    final and non-reviewable.
    Orders of the Liquor  Control  Commission  entered  under
this  Section shall be deemed orders as to which an emergency
exists.
    (d)  Notwithstanding  Section  30  of   this   Act,   any
aggrieved   party   under  this  Section  may  apply  to  the
Commission for a finding that another party has violated this
Section and request relief.
    (e)  Orders entered by the Commission under this  Section
shall  be  reviewable by the Circuit Court under the terms of
the Administrative Review Law.  In  accordance  with  Section
3-110   of   the  Administrative  Review  Law,  findings  and
conclusions of the Commission shall be held to be prima facie
true and correct.
    (f)  No court shall  enter  a  stay,  restraining  order,
injunction,  mandamus,  or other order that has the effect of
suspending, delaying, modifying, or overturning a  Commission
finding  or  determination  under  this Section before a full
hearing and final decision on the merits  of  the  Commission
ruling, finding, or order.

    Section  99.  Effective date.  This Act takes effect upon
becoming law.

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