Amended in Senate March 17, 2014

Amended in Assembly May 28, 2013

Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 600

Introduced by Assembly Member Bonta

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(Principal coauthor: Assembly Member Wieckowski)

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(Principal coauthor: Senator Corbett)

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February 20, 2013

An act to amend Section begin delete 22928 end delete begin insert 25503.6 end insert of the Business and Professions Code, relating to begin delete business end delete begin insert alcoholic beverage control, and declaring the urgency thereof, to take effect immediately end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 600, as amended, Bonta. begin delete Intermodal marine terminals. end delete begin insert Alcoholic beverages: tied-house restrictions: advertising. end insert

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Existing law generally prohibits a manufacturer of alcoholic beverages and a winegrower from paying, crediting, or compensating a retailer for advertising or paying or giving anything of value for the privilege of placing a sign or advertisement with a retail licensee. It authorizes, as an exception, the holder of a winegrower’s license, a beer manufacturer, a distilled spirits manufacturer, or a distilled spirits manufacturer’s agent, to purchase advertising space and time from, or on behalf of, an on-sale retail licensee, under certain conditions, if the on-sale retail licensee is the owner, manager, agent of the owner, assignee of the owner’s advertising rights, or major tenant of specified facilities. Existing law specifies that any coercion or other illegal means to induce the purchase of advertising, permitted under this section by a specified licensee, is a crime.

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This bill would expand the exceptions to existing law to allow beer manufacturers, winegrowers, distilled spirits rectifiers, distilled spirits manufacturers, or distilled spirits manufacturer’s agents to purchase advertising space and time from, or on behalf of, on-sale retail licensees at specified facilities located in the City of Santa Clara, as provided.

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This bill would expand the scope of an existing crime thus imposing a state-mandated local program.

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This bill would make legislative findings and declarations as to the necessity of a special statute for the City of Santa Clara.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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This bill would declare that it is to take effect immediately as an urgency statute.

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Existing law prohibits an intermodal marine equipment provider or marine terminal operator from imposing per diem, detention, or demurrage charges, as defined, on an intermodal motor carrier relative to transactions involving cargo shipped by intermodal transport under certain circumstances. Existing law also prohibits an intermodal marine equipment provider from terminating, suspending, or restricting equipment interchange rights of a motor carrier for specified reasons and from charging back, deducting, or offsetting per diem or certain other charges from the motor carrier’s freight bill.

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This bill would recast these provisions to prohibit a party signatory to an interchange agreement involving intermodal marine equipment from unilaterally terminating, suspending, or restricting the equipment interchange rights of any other signatory to the same interchange agreement. This bill would modify the circumstances under which an intermodal marine equipment provider or an intermodal marine terminal operator is prohibited from imposing per diem, detention, demurrage charges, or citations for parking violations.

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This bill would specify that an “intermodal marine terminal” does not include a railroad, warehouse, or any other domestic terminal facility that may handle intermodal marine equipment, but where cargo shipped by intermodal marine transport is not transferred to or from ocean-going vessels. The bill would declare that certain of its provisions are not a change in, but are declaratory of, existing law.

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Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 25503.6 of the end insert begin insert Business and Professions
Code end insert begin insert is amended to read: end insert

25503.6.  

(a) Notwithstanding any other provision of this
chapter, a beer manufacturer, the holder of a winegrower’s license,
a distilled spirits rectifier, a distilled spirits manufacturer, or
distilled spirits manufacturer’s agent may purchase advertising
space and time from, or on behalf of, an on-sale retail licensee
subject to all of the following conditions:

(1) The on-sale licensee is the owner, manager, agent of the
owner, assignee of the owner’s advertising rights, or the major
tenant of the owner of any of the following:

(A) An outdoor stadium or a fully enclosed arena with a fixed
seating capacity in excess of 10,000 seats located in Sacramento
County or Alameda County.

(B) A fully enclosed arena with a fixed seating capacity in
excess of 18,000 seats located in Orange County or Los Angeles
County.

(C) An outdoor stadium or fully enclosed arena with a fixed
seating capacity in excess of 8,500 seats located in Kern County.

(D) An exposition park of not less than 50 acres that includes
an outdoor stadium with a fixed seating capacity in excess of 8,000
seats and a fully enclosed arena with an attendance capacity in
excess of 4,500 people, located in San Bernardino County.

(E) An outdoor stadium with a fixed seating capacity in excess
of 10,000 seats located in Yolo County.

(F) An outdoor stadium and a fully enclosed arena with fixed
seating capacities in excess of 10,000 seats located in Fresno
County.

(G) An athletic and entertainment complex of not less than 50
acres that includes within its boundaries an outdoor stadium with
a fixed seating capacity of at least 8,000 seats and a second outdoor
stadium with a fixed seating capacity of at least 3,500 seats located
within Riverside County.

(H) An outdoor stadium with a fixed seating capacity in excess
of 1,500 seats located in Tulare County.

(I) A motorsports entertainment complex of not less than 50
acres that includes within its boundaries an outdoor speedway with
a fixed seating capacity of at least 50,000 seats, located within San
Bernardino County.

(J) An exposition park, owned or operated by a bona fide
nonprofit organization, of not less than 400 acres with facilities
including a grandstand with a seating capacity of at least 8,000
people, at least one exhibition hall greater than 100,000 square
feet, and at least four exhibition halls, each greater than 30,000
square feet, located in the City of Pomona or the City of La Verne
in Los Angeles County.

(K) An outdoor soccer stadium with a fixed seating capacity of
at least 25,000 seats, an outdoor tennis stadium with a fixed
capacity of at least 7,000 seats, an outdoor track and field facility
with a fixed seating capacity of at least 7,000 seats, and an indoor
velodrome with a fixed seating capacity of at least 2,000 seats, all
located within a sports and athletic complex built before January
1, 2005, within the City of Carson in Los Angeles County.

(L) An outdoor professional sports facility with a fixed seating
capacity of at least 4,200 seats located within San Joaquin County.

(M) A fully enclosed arena with a fixed seating capacity in
excess of 13,000 seats in the City of Inglewood.

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(N) An outdoor stadium with a fixed seating capacity of at least
68,000 seats located in the City of Santa Clara.

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(2) The outdoor stadium or fully enclosed arena described in
paragraph (1) is not owned by a community college district.

(3) The advertising space or time is purchased only in connection
with the events to be held on the premises of the exposition park,
stadium, or arena owned by the on-sale licensee. With respect to
an exposition park as described in subparagraph (J) of paragraph
(1) that includes at least one hotel, the advertising space or time
shall not be displayed on or in any hotel located in the exposition
park, or purchased in connection with the operation of any hotel
located in the exposition park.

(4) The on-sale licensee serves other brands of beer distributed
by a competing beer wholesaler in addition to the brand
manufactured or marketed by the beer manufacturer, other brands
of wine distributed by a competing wine wholesaler in addition to
the brand produced by the winegrower, and other brands of distilled
spirits distributed by a competing distilled spirits wholesaler in
addition to the brand manufactured or marketed by the distilled
spirits rectifier, the distilled spirits manufacturer or the distilled
spirits manufacturer’s agent that purchased the advertising space
or time.

(b) Any purchase of advertising space or time pursuant to
subdivision (a) shall be conducted pursuant to a written contract
entered into by the beer manufacturer, the holder of the
winegrower’s license, the distilled spirits rectifier, the distilled
spirits manufacturer, or the distilled spirits manufacturer’s agent
and the on-sale licensee.

(c) Any beer manufacturer or holder of a winegrower’s license,
any distilled spirits rectifier, any distilled spirits manufacturer, or
any distilled spirits manufacturer’s agent who, through coercion
or other illegal means, induces, directly or indirectly, a holder of
a wholesaler’s license to fulfill all or part of those contractual
obligations entered into pursuant to subdivision (a) or (b) shall be
guilty of a misdemeanor and shall be punished by imprisonment
in the county jail not exceeding six months, or by a fine in an
amount equal to the entire value of the advertising space, time, or
costs involved in the contract, whichever is greater, plus ten
thousand dollars ($10,000), or by both imprisonment and fine. The
person shall also be subject to license revocation pursuant to
Section 24200.

(d) Any on-sale retail licensee, as described in subdivision (a),
who, directly or indirectly, solicits or coerces a holder of a
wholesaler’s license to solicit a beer manufacturer, a holder of a
winegrower’s license, a distilled spirits rectifier, a distilled spirits
manufacturer, or a distilled spirits manufacturer’s agent to purchase
advertising space or time pursuant to subdivision (a) or (b) shall
be guilty of a misdemeanor and shall be punished by imprisonment
in the county jail not exceeding six months, or by a fine in an
amount equal to the entire value of the advertising space or time
involved in the contract, whichever is greater, plus ten thousand
dollars ($10,000), or by both imprisonment and fine. The person
shall also be subject to license revocation pursuant to Section
24200.

(e) For the purposes of this section, “beer manufacturer” includes
any holder of a beer manufacturer’s license, any holder of an
out-of-state beer manufacturer’s certificate, or any holder of a beer
and wine importer’s general license.

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begin insert SEC. 2. end insert   

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The Legislature finds and declares that a special law
is necessary and that a general law cannot be made applicable
within the meaning of Section 16 of Article IV of the California
Constitution because of the unique circumstances and concerns
applicable to certain facilities in the City of Santa Clara.

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begin insert SEC. 3. end insert   

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No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

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begin insert SEC. 4. end insert   

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This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

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In order to ensure the fair and efficient application of the
alcoholic beverage control licensing laws with respect to eligible
facilities in the City of Santa Clara, it is necessary that this act
take immediate effect.

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SECTION 1.  

Section 22928 of the Business and Professions
Code is amended to read:

22928.  

(a) The Legislature finds and declares all of the
following:

(1) That no party who is a signatory to an interchange agreement
involving intermodal marine equipment shall unilaterally terminate,
suspend, or restrict the equipment interchange rights of any other
party signatory to the same interchange agreement, as specified in
this section.

(2) Nothing in this section shall restrict any parties from entering
into contracts with enforceable contractual and commercial terms
to provide drayage services if the contract is consistent with Part
2 (commencing with Section 1549) of Division 3 of Civil Code.

(3) If the parties to a contract to provide drayage services are
mutual signatories to an interchange agreement, then the terms of
that agreement are binding except to the extent that they otherwise
conflict with this section, other provisions of law, or otherwise by
agreement of the contracting parties.

(b) An intermodal marine equipment provider or intermodal
marine terminal operator shall not impose per diem or detention
charges on an intermodal motor carrier relating to transactions
involving cargo shipped by intermodal marine transport under any
of the following circumstances:

(1) When the intermodal marine terminal truck gate is closed
during posted normal working hours, including any gate closures
that occur on a weekend or holiday, during a labor disruption
period, or during any other period involving an act of God, or any
other planned or unplanned action that closes the truck gate.

(2) When the intermodal marine terminal or intermodal marine
equipment provider decides to divert the return of equipment from
the point at which it was interchanged without 48 hours’ electronic
or written notification to the intermodal motor carrier having
possession of the equipment.

(3) When the intermodal marine terminal is assessed a fine
pursuant to Section 40720 of the Health and Safety Code.

(4) When the intermodal equipment is not compliant with
Section 34505.9 of the Vehicle Code or is placed out of service.

(5) When the intermodal marine terminal is too congested to
safely or reasonably accept the intermodal marine equipment and
the intermodal marine terminal turns away the intermodal motor
carrier.

(c) An intermodal marine equipment provider shall not take any
of the following actions:

(1) Charge back, deduct, or offset per diem or detention charges,
maintenance and repair charges, or peak hour pricing from an
intermodal motor carrier’s freight bill.

(2) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of an intermodal motor carrier that utilizes the
dispute resolution process contained in the Uniform Intermodal
Interchange and Facilities Access Agreement to contest a charge,
fee, or fine, including a charge for maintenance and repairs imposed
by the intermodal marine terminal, while the dispute resolution
process is ongoing or after a challenge is resolved, solely on the
basis that the dispute resolution process was utilized by the
intermodal motor carrier.

(3) Unilaterally terminate, suspend, or restrict the equipment
interchange rights of an intermodal motor carrier for late payment
of an undisputed invoice from the intermodal marine terminal,
provided that the payment is no more than 60 days late.

(d) Except as otherwise included in a terminal tariff agreement
filed with the federal Maritime Commission, an intermodal marine
terminal shall not take any of the following actions:

(1) Require an intermodal motor carrier to pay for any parking
violation or to pay for any parking citation issued by the marine
terminal unless the citation remains unpaid more than 60 days after
the intermodal motor carrier is in actual physical receipt of the
citation. For the purposes of this subdivision, delivery by certified
mail or other recorded delivery service shall constitute evidence
that the intermodal motor carrier is in actual physical custody of
a parking violation citation.

(2) Issue a parking citation to an intermodal motor carrier for a
parking violation if the assigned parking space at issue was
occupied and the trouble window or terminal administration was
unable to immediately provide a place to park, or if the driver was
instructed to park the equipment in a different spot by marine
terminal personnel or security.

(3) Issue a parking violation citation more than five business
days after the date that the violation occurred.

(e) (1) Other than what is specified in an agreement or the
governing port tariff, a party shall not collect cargo demurrage
unless it is due and payable in a manner that is consistent with this
section.

(2) An intermodal motor carrier shall not be liable for any
portion of cargo demurrage that is solely for the account of the
beneficial owner or the owner’s agent.

(3) Except as otherwise agreed to in writing, an intermodal
motor carrier shall not be required by a cargo owner, or an owner’s
agent, to pick up a loaded container that has any outstanding cargo
charges, including, but not limited to, demurrage charges.

(4) Commencing January 1, 2015, an intermodal marine terminal
shall require that any outstanding cargo charges, including, but
not limited to, all cargo demurrage charges, imposed relative to
transactions involving intermodal marine cargo be paid
electronically by the responsible party, or that party’s agent, before
a container is released.

(5) If a loaded container is not made available for pickup when
an intermodal motor carrier arrives at the intermodal marine
terminal, and all current charges have been paid as set forth in
paragraph (4), the intermodal marine terminal operator shall not
impose any further cargo demurrage charges on the intermodal
motor carrier.

(f) As used in this chapter:

(1) “Per diem,” or “detention,” means a charge imposed by an
equipment provider or marine terminal operator for late return or
pickup of an empty or a loaded intermodal container and chassis.

(2) “Closed” means not open or available to receive equipment.
The intermodal marine terminal shall have posted working hours,
and “closed” shall mean that the terminal is not open to release or
accept intermodal marine equipment during those posted working
hours.

(3) “Divert equipment” means the motor carrier has been
directed to return the equipment to a location different from the
location where the equipment was picked up by the motor carrier.

(4) “Intermodal marine equipment” means equipment commonly
used in the road transport of intermodal cargo by an intermodal
motor carrier to or from an intermodal marine terminal, including
trailers, chassis, containers, and associated devices, but excluding
tractors.

(5)  “Intermodal marine terminal” means a terminal location or
facility that engages in discharging or receiving intermodal marine
equipment owned, operated, or controlled by an intermodal marine
equipment provider. This definition does not apply to any railroad,
warehouse, or any other domestic terminal facility that may handle
intermodal marine equipment, but where cargo shipped by
intermodal marine transport is not transferred to or from
ocean-going vessels.

(6) “Written or electronic notification” means any
communication by postal letter, facsimile, electronic mail, or other
electronic notification.

(7) “Intermodal marine equipment provider” means the party
providing intermodal marine equipment to an intermodal motor
carrier at an intermodal marine terminal pursuant to the Uniform
Intermodal Interchange and Facilities Access Agreement or any
other interchange agreement.

(8) “Cargo demurrage” means a charge including, but not limited
to, any “wharf demurrage” applied against cargo that results from
the storage of the cargo on an intermodal terminal beyond the end
of the allowable free time as established by tariff or agreement.

SEC. 2.  

The amendment of subdivision (b) of Section 22928
of the Business and Professions Code made by Section 1 of this
act does not constitute a change in, but is declaratory of, existing
law relative to the prohibition on the imposition of per diem and
retention charges by intermodal marine equipment providers in
the instances identified therein.

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