Current Status Introducing Body:Senate Bill Number:707 Ratification Number:202 Act Number:161 Primary Sponsor:Leatherman Type of Legislation:GB Subject:Unfair trade practices Companion Bill Number:3998 Date Bill Passed both Bodies:19930603 Computer Document Number:CYY/15463SD.93 Governor's Action:S Date of Governor's Action:19930615 Introduced Date:19930415 Date of Last Amendment:19930603 Last History Body:------ Last History Date:19930615 Last History Type:Act No. 161 Scope of Legislation:Statewide All Sponsors:Leatherman Land Macaulay Thomas Leventis Gregory Short Type of Legislation:General Bill
Bill Body Date Action Description CMN Leg Involved
---- ------ ------------ ------------------------------ --- ------------
707 ------ 19930615 Act No. 161
707 ------ 19930615 Signed by Governor
707 ------ 19930610 Ratified R 202
707 Senate 19930603 Concurred in House amendment,
enrolled for ratification
707 House 19930603 Amended, read third time,
returned with amendment
707 House 19930602 Amended, read second time
707 House 19930602 Made special order under
H.4275
707 House 19930601 Objection by Representative Haskins
D. Smith
Kirsh
Anderson
707 House 19930601 Amended
707 House 19930601 Objection withdrawn by J. Bailey
Representative Carnell
707 House 19930527 Objection withdrawn by Fair
Representative
707 House 19930527 Objection withdrawn by Marchbanks
Representative Cooper
Cato
Stoddard
707 House 19930526 Objection by Representative Carnell
Cato
Fair
Stoddard
Marchbanks
Canty
J. Bailey
Cooper
707 House 19930519 Committee Report: Favorable 26
with amendment
707 House 19930504 Introduced, read first time, 26
referred to Committee
707 Senate 19930429 Read third time, sent to House
707 Senate 19930427 Read second time, notice of
general amendments
707 Senate 19930422 Committee Report: Favorable 12
707 Senate 19930415 Introduced, read first time, 12
referred to Committee
View additional legislative information at the LPITS web site.
(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.