S*707 Session 110 (1993-1994)
S*0707(Rat #0202, Act #0161) General Bill, By Leatherman, Land, Leventis,
A.S. Macaulay, Short and Thomas
Similar(H 3998)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
39-5-325 so as to provide that except where permitted to meet competition, it
is an unfair trade practice and unlawful for any person who is in the retail
business of selling motor fuel to sell motor fuel of like grade and quality at
retail at a price which is below the cost of acquiring the product plus taxes
and transportation, to provide exceptions, and to require certain
recordkeeping; to amend Section 39-5-350, relating to merchandising unfair
trade practices and exemptions, and Section 39-3-150, relating to the
provision of law that sales at less than cost for the purpose of injuring
competitors is a conspiracy to form a monopoly, so as to provide that any
wholesale or retail sale of motor fuel at a level below the actual cost of
acquiring the product, which is permitted meet competition, shall require
certain documentation of the competition's pricing; and by adding Section
39-41-255 so as to require every retail motor fuel outlet to post in a
conspicuous place the self-service pump price for each type of gasoline it has
available and provide for related matters.-amended title
04/15/93 Senate Introduced and read first time SJ-12
04/15/93 Senate Referred to Committee on Labor, Commerce and
Industry SJ-12
04/22/93 Senate Committee report: Favorable Labor, Commerce and
Industry SJ-10
04/27/93 Senate Read second time SJ-60
04/27/93 Senate Ordered to third reading with notice of
amendments SJ-60
04/28/93 Senate Read third time and sent to House
04/28/93 Senate Reconsidered
04/29/93 Senate Read third time and sent to House SJ-14
05/04/93 House Introduced and read first time HJ-10
05/04/93 House Referred to Committee on Labor, Commerce and
Industry HJ-11
05/19/93 House Committee report: Favorable with amendment Labor,
Commerce and Industry HJ-19
05/26/93 House Objection by Rep. Carnell, Cato, Fair, Stoddard,
Marchbanks, Canty, HJ-76
05/26/93 House Objection by Rep. J. Bailey & Cooper HJ-76
05/27/93 House Objection withdrawn by Rep. Marchbanks, Cooper,
Cato & Stoddard HJ-137
05/27/93 House Objection withdrawn by Rep. Fair HJ-139
06/01/93 House Objection withdrawn by Rep. J. Bailey & Carnell HJ-63
06/01/93 House Amended HJ-99
06/01/93 House Objection by Rep. Haskins, D. Smith, Kirsh &
Anderson HJ-99
06/02/93 House Special order, set for Wednesday 06/02/93 after
uncontested calendar (Under H 4275) HJ-10
06/02/93 House Amended HJ-32
06/02/93 House Read second time HJ-33
06/02/93 House Roll call Yeas-084 HJ-33
06/03/93 House Amended HJ-18
06/03/93 House Read third time and returned to Senate with
amendments HJ-19
06/03/93 Senate Concurred in House amendment and enrolled SJ-31
06/10/93 Ratified R 202
06/15/93 Signed By Governor
06/15/93 Effective date 08/14/93
06/15/93 See act for exception to or explanation of
effective date
07/21/93 Copies available
(A161, R202, S707)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING SECTION 39-5-325 SO AS TO
PROVIDE THAT EXCEPT WHERE PERMITTED TO MEET
COMPETITION, IT IS AN UNFAIR TRADE PRACTICE AND
UNLAWFUL FOR ANY PERSON WHO IS IN THE RETAIL BUSINESS
OF SELLING MOTOR FUEL TO SELL MOTOR FUEL OF LIKE
GRADE AND QUALITY AT RETAIL AT A PRICE WHICH IS BELOW
THE COST OF ACQUIRING THE PRODUCT PLUS TAXES AND
TRANSPORTATION, TO PROVIDE EXCEPTIONS, AND TO
REQUIRE CERTAIN RECORDKEEPING; TO AMEND SECTION
39-5-350, RELATING TO MERCHANDISING UNFAIR TRADE
PRACTICES AND EXEMPTIONS, AND SECTION 39-3-150,
RELATING TO THE PROVISION OF LAW THAT SALES AT LESS
THAN COST FOR THE PURPOSE OF INJURING COMPETITORS IS A
CONSPIRACY TO FORM A MONOPOLY, SO AS TO PROVIDE THAT
ANY WHOLESALE OR RETAIL SALE OF MOTOR FUEL AT A
LEVEL BELOW THE ACTUAL COST OF ACQUIRING THE
PRODUCT, WHICH IS PERMITTED TO MEET COMPETITION,
SHALL REQUIRE CERTAIN DOCUMENTATION OF THE
COMPETITION'S PRICING; AND BY ADDING SECTION 39-41-255
SO AS TO REQUIRE EVERY RETAIL MOTOR FUEL OUTLET TO
POST IN A CONSPICUOUS PLACE THE SELF-SERVICE PUMP
PRICE FOR EACH TYPE OF GASOLINE IT HAS AVAILABLE AND
PROVIDE FOR RELATED MATTERS.
Be it enacted by the General Assembly of the State of South Carolina:
Unlawful and unfair retail sale of motor fuel; exceptions,
recordkeeping
SECTION 1. The 1976 Code is amended by adding:
"Section 39-5-325. (A) Except as otherwise permitted to meet
competition as provided by this chapter, it is declared an unfair trade
practice and unlawful for any person who is in the retail business of selling
motor fuel to sell motor fuel of like grade and quality at retail at a price
which is below the cost of acquiring the product plus taxes and
transportation where the intent or effect is to destroy or substantially lessen
competition or to injure a competitor.
(B) The provisions of subsection (A) shall not apply in the following
situations where:
(1) motor fuel is advertised, offered for sale, or sold in a bona fide
clearance sale for the purpose of discontinuing trade in such motor fuel,
and the advertising, offer to sell, or sale shall state the reason therefor and
the quantity of such motor fuel advertised, offered for sale, or to be
sold;
(2) motor fuel is sold upon the final liquidation of a business;
(3) motor fuel is advertised, offered for sale, or sold by any fiduciary
or other officer under the order or direction of any court;
(4) motor fuel is sold for promotional purposes including, but not
limited to, grand opening, anniversary, or promotional sales. However, the
total number of days for promotional sales shall not exceed fourteen days
within each calendar year; or
(5) an isolated or inadvertent incident occurs that does not exceed two
days.
(C) Any person who is in the retail business of selling motor fuel
claiming any exemption from subsection (A) under the exceptions provided
in subsection (B) must keep and maintain records substantiating this claim.
These records must be made available to the Department of Consumer
Affairs and the Attorney General's Office on request made in connection
with any investigation of a possible violation of this section by the
department or the Attorney General."
Documentation required
SECTION 2. Section 39-5-350 of the 1976 Code is amended to read:
"Section 39-5-350. (A) No part of this article shall be construed
to apply to sales at wholesale to hotels, restaurants, colleges, bona fide
licensed contractors, farmers buying for their plantations, including labor
on their own farms, boardinghouses, religious institutions, or county, city,
federal, or state institutions or departments or to cooperative purchases for
redistribution among farmers. Retail sales of merchandise of like grade and
quality at a price to meet existing competition at any time in any town or
locality are also exempt from the provisions of this article. But if such
competition is created by any person in violation of this article or when any
two or more persons contend that they are meeting the competition of the
other and all would be making retail sales in violation of this article, except
for the above provisions allowing existing competition to be met, any
retailer affected thereby may enjoin all in such category from continuing
such practices in any court of competent jurisdiction in this State.
(B) Any person selling motor fuel at wholesale or retail at a price below
the actual cost of acquiring the product, including transportation and taxes,
claiming exemption from this article on the basis that such sales of motor
fuel by that person are at a price to meet existing competition under
subsection (A) of this section shall keep and maintain records
substantiating each effort to meet the competition, including the identity
and place of business of the competitors whose competition that person is
meeting. The records must be made available to the Department of
Consumer Affairs and the Attorney General on request made in connection
with any investigation of a possible violation of this article by the
department or the Attorney General."
Documentation required
SECTION 3. Section 39-3-150 of the 1976 Code is amended to read:
"Section 39-3-150. (A) If any person engaged in the
manufacture, sale, or distribution of any commodity in general use in this
State shall, with the intent or purpose of driving out competition or for the
purpose of financially injuring competitors, sell at less than cost of
manufacture or at less than the cost of such commodity bought in the open
markets plus the freight and other charges to point of destination or give
away such product for the purpose of driving out competition or financially
injuring any competitor engaged in the manufacture, sale, or distribution of
such commodity in this State, such person shall be guilty of a conspiracy to
form or secure a trust or monopoly in restraint of trade and of unfair
discrimination, which is prohibited and declared to be unlawful. Any
person violating any of the provisions of this section and any officer, agent,
or receiver of any firm, company, association, or corporation or any
member thereof or any individual guilty of a violation of this section shall
be liable for a penalty of not less than five hundred dollars nor more than
five thousand dollars to be recovered at the suit of the State in the court of
common pleas of any county. The Attorney General may allow one-half of
the penalties provided in this section to anyone who may conduct the suit
and the Attorney General shall be authorized to proceed as provided in this
article to enforce the provisions hereof. Each sale so proven under the
provisions of this section shall be considered a separate offense.
(B) Sales of motor fuel in general use in this State at wholesale or retail
at a price to meet existing competition which is below the actual cost of
acquiring the product, including transportation and taxes, are exempt from
the provisions of this section, provided that any person claiming the
exemption shall keep and maintain records substantiating his effort to meet
this competition, including the identity and place of business of the
competitors whose competition that person is meeting. The records must be
made available to the Department of Consumer Affairs and the Attorney
General on request made in connection with any investigation of a possible
violation of this section by the department or the Attorney
General."
Posting of prices
SECTION 4. The 1976 Code is amended by adding:
"Section 39-41-255. Every retail motor fuel outlet shall post in a
conspicuous place the self-service pump price for each type of gasoline it
has available; provided, that such posted price must include either the cash
or the credit price but need not include both such prices. The manner in
which the prices are posted must not conflict with any state or local laws or
ordinances that regulate the size, use, or placement of billboards or
signs."
Time effective
SECTION 5. This act takes effect sixty days after approval by the
Governor.
Approved the 15th day of June, 1993. |