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1 | AN ACT concerning business practices.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 1. Short title. This Act may be cited as the Motor | |||||||||||||||||||
5 | Fuel Fair Marketing Practices Act. | |||||||||||||||||||
6 | Section 5. Legislative findings; purpose. | |||||||||||||||||||
7 | (a) Retail marketing of motor fuel is affected by the | |||||||||||||||||||
8 | public's interest.
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9 | (b) Consumers benefit from ample numbers of conveniently | |||||||||||||||||||
10 | located motor fuel facilities and ample storage of motor fuels | |||||||||||||||||||
11 | to readily accommodate consumer demand. | |||||||||||||||||||
12 | (c) Local communities benefit from motor fuel businesses | |||||||||||||||||||
13 | owned and operated by independent retailers and wholesalers, | |||||||||||||||||||
14 | because independents generally support private sector | |||||||||||||||||||
15 | businesses that are local or regional in nature, including but | |||||||||||||||||||
16 | not limited to, lenders, insurance providers, providers of | |||||||||||||||||||
17 | accounting services, and providers of legal services. | |||||||||||||||||||
18 | (d) Communities also benefit from financial, equipment, | |||||||||||||||||||
19 | and manpower support from independent retailers and | |||||||||||||||||||
20 | wholesalers for not-for-profit organizations operating within | |||||||||||||||||||
21 | such communities. | |||||||||||||||||||
22 | (e) Despite actual differences in motor fuel production and | |||||||||||||||||||
23 | quality, motor fuel is considered largely to be a "commodity | |||||||||||||||||||
24 | product", with price having evolved as the primary basis of | |||||||||||||||||||
25 | competition. | |||||||||||||||||||
26 | (f) With price as the primary basis of competition, profit | |||||||||||||||||||
27 | margins and returns on investment for retail marketers of motor | |||||||||||||||||||
28 | fuel are generally low and most retailers of motor fuel must be | |||||||||||||||||||
29 | competent in order to survive. | |||||||||||||||||||
30 | (g) Retail marketers of motor fuel must earn a margin of | |||||||||||||||||||
31 | profit on the sale of motor fuel for reinvestment in the | |||||||||||||||||||
32 | business because many motor fuels are flammable and combustible |
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1 | liquids, that must be distributed in a safe manner, utilizing | ||||||
2 | specially designed and costly explosion-proof equipment. | ||||||
3 | (h) Retail marketers of motor fuel must earn a margin of | ||||||
4 | profit on the sale of motor fuel for maintenance and | ||||||
5 | reinvestment in the business because motor fuels are | ||||||
6 | potentially hazardous to the underground environment, such | ||||||
7 | that specially designed and costly equipment must be used to | ||||||
8 | contain and monitor the containment of motor fuels, and to | ||||||
9 | comply with governmentally-imposed regulations. | ||||||
10 | (i) Over the years, the margin of profit earned on the sale | ||||||
11 | of motor fuel has lessened, largely due to the advent of | ||||||
12 | self-service as well as the sharing of costs of motor fuel | ||||||
13 | retailing with the retailing of other goods and services | ||||||
14 | offered at the motor fuel facility, including but not limited | ||||||
15 | to, the sale of convenience store goods and services, car | ||||||
16 | washes, and fast-foods, where the shared costs can include | ||||||
17 | cashiering, management, accounting, facility maintenance, | ||||||
18 | facility development, land acquisition, and land development. | ||||||
19 | (j) Given today's cost of doing business and the average | ||||||
20 | volume motor fuel station facility, the sharing of personnel to | ||||||
21 | accommodate transactions of both convenience store items and | ||||||
22 | motor fuel sales has allowed for a significant reduction in the | ||||||
23 | minimum needed profit margin on a motor fuel operation | ||||||
24 | benefiting from cost sharing as compared with a motor fuel | ||||||
25 | operation not benefiting from such cost sharing.
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26 | (k) A lower margin of profit on the sale of motor fuel has | ||||||
27 | been a gain to consumers through lower retail prices on motor | ||||||
28 | fuel, which for many years has allowed the majority of | ||||||
29 | competently-run independent businesses to remain financially | ||||||
30 | viable because of cost sharing. | ||||||
31 | (l) In recent years, however, the profit earned on the sale | ||||||
32 | of motor fuel within a growing number of markets has gone below | ||||||
33 | what is reasonable and necessary for an independent marketer to | ||||||
34 | cover its costs of doing business, even when the motor fuel | ||||||
35 | marketer is benefiting from cost sharing. | ||||||
36 | (m) The primary reason that the profit earned on the sale |
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1 | of motor fuel has gone below what is reasonable and necessary | ||||||
2 | for a cost-sharing retailer to cover its costs of doing | ||||||
3 | business is the growing practice of below-cost marketing of | ||||||
4 | motor fuels. | ||||||
5 | (n) With price as the number one basis of competition in | ||||||
6 | the retailing of motor fuel, below-cost retailing by the | ||||||
7 | competition leaves the independent retailer of motor fuel with | ||||||
8 | only two choices: (1) join in the below-cost retailing of motor | ||||||
9 | fuel to keep its customer base, which will eventually cause the | ||||||
10 | independent retailer to become financially unsound and not | ||||||
11 | competitive because it cannot generate capital to reinvest in | ||||||
12 | its business; or (2) do not join in the below-cost retailing of | ||||||
13 | motor fuel, and lose customers and sales volumes as a result, | ||||||
14 | eventually becoming financially unsound and not competitive | ||||||
15 | through the inability to generate reinvestment capital. Either | ||||||
16 | way, many independent retailers will be selling out or closing | ||||||
17 | up.
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18 | (o) Those who initiate below-cost marketing of motor fuel | ||||||
19 | are able to do so either from subsidized pricing unrelated to | ||||||
20 | cost-sharing or from wholesale price discrimination. | ||||||
21 | (p) Subsidized pricing stems from one of the following 4 | ||||||
22 | sources: | ||||||
23 | (1) A retailer covers its losses on the sale of motor | ||||||
24 | fuel from profits generated by the sales of products and | ||||||
25 | services unrelated to the retail sale of motor fuels and | ||||||
26 | unrelated to the sharing of personnel and other costs | ||||||
27 | involved in the sales of motor fuel products. Examples | ||||||
28 | include, but are not necessarily limited to, bulk | ||||||
29 | distributors of motor fuel, supermarket operators and mass | ||||||
30 | merchandiser retailers who have added motor fuel as an | ||||||
31 | additional, separate product offering, and who provide | ||||||
32 | motor fuel discounts and subsidize motor fuel operations | ||||||
33 | with revenue generated on separate operations, as well as | ||||||
34 | those involved in money laundering and illegal trade. This | ||||||
35 | form of subsidization is referred to as "subsidization via | ||||||
36 | revenue sharing from diversification". |
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1 | (2) Large chain retailers who cover a large geographic | ||||||
2 | market and subsidize their below-cost sales in one market | ||||||
3 | with profits generated in other markets. This form of | ||||||
4 | subsidization is referred to as "subsidization via revenue | ||||||
5 | sharing from geographic dispersion". | ||||||
6 | (3) Vertically integrated companies that subsidize the | ||||||
7 | retailing end of the business from either the wholesaling, | ||||||
8 | transportation, refining, and oil production portions of | ||||||
9 | their business. This form of subsidization is referred to | ||||||
10 | as "subsidization via revenue sharing from vertical | ||||||
11 | integration". | ||||||
12 | (4) Foreign nationals who receive subsidies from | ||||||
13 | abroad in order to maintain business and citizenship | ||||||
14 | opportunities in the United States. This form of | ||||||
15 | subsidization is referred to as "subsidization via revenue | ||||||
16 | sharing from foreign sources". | ||||||
17 | (q) Wholesale price discrimination occurs when refiners or | ||||||
18 | other originators of motor fuel sell to one wholesaler or | ||||||
19 | retailer in a market area at an advantaged price over another | ||||||
20 | wholesaler or retailer in the same market area, when the | ||||||
21 | pricing differential is not cost-justified. | ||||||
22 | (r) Below-cost marketing of motor fuel is unfair | ||||||
23 | competition because it injures and threatens the viability of | ||||||
24 | independent motor fuel marketers, even those possessing the | ||||||
25 | highest degree of competence and who are engaging in | ||||||
26 | cost-sharing by way of diversified retail operations, by | ||||||
27 | depriving independent motor fuel marketers of their ability to | ||||||
28 | accumulate capital, which is essential in a capitalistic | ||||||
29 | economy, and which is essential for reinvestment in the motor | ||||||
30 | fuel operation. | ||||||
31 | (s) The inability of independent motor fuel marketers to | ||||||
32 | accumulate capital, due to unfair competition in the motor fuel | ||||||
33 | industry, also damages local and regional suppliers of | ||||||
34 | equipment, facilities, technology, and other goods and | ||||||
35 | services with whom independents regularly do business, all to | ||||||
36 | the detriment of local and regional economies. |
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1 | (t) Unfair competition in the retail motor fuel industry | ||||||
2 | also injures the ability of independent motor fuel marketers to | ||||||
3 | generate money to cover the costs of regulation compliance | ||||||
4 | related to underground storage tank systems, potentially | ||||||
5 | endangering the environment. | ||||||
6 | (u) Unfair competition in the retail motor fuel industry | ||||||
7 | also injures the ability of local independent retailers to | ||||||
8 | provide new jobs, expand career opportunities for their current | ||||||
9 | employees, implement new technologies, raise living standards | ||||||
10 | for their employees, and enhance the overall economic welfare | ||||||
11 | of their local communities and region. | ||||||
12 | (v) Unfair competition in the retail motor fuel industry | ||||||
13 | also adversely affects the State because it adversely affects | ||||||
14 | business spending by independent marketers in the high-wage | ||||||
15 | sectors of construction, manufacturing, and technology, and it | ||||||
16 | adversely affects the revenue-generating abilities of the | ||||||
17 | state through lower sales and income tax collections. | ||||||
18 | (w) Below-cost marketing of motor fuel is inherently | ||||||
19 | predatory and stands to injure competition and reduce the | ||||||
20 | number of competitors in petroleum marketing, especially the | ||||||
21 | number of independently owned marketers, to the detriment of | ||||||
22 | the consuming public welfare by limiting the number of motor | ||||||
23 | fuel retail outlets available to State motorists, and by making | ||||||
24 | motorists susceptible to increased retail prices long-term. | ||||||
25 | (x) Unfair competition by way of the predatory practice of | ||||||
26 | below-cost pricing also tends to create barriers to entry or | ||||||
27 | re-entry into the motor fuel marketplace by independent motor | ||||||
28 | fuel marketers, resulting in a marketplace that is not truly | ||||||
29 | free. | ||||||
30 | (y) While the federal government has regulations dealing | ||||||
31 | with predatory pricing, the regulations fail to protect | ||||||
32 | businesses and consumers because the regulations are not held | ||||||
33 | to be violated until long after the damage caused by predatory | ||||||
34 | pricing has been done, with much of the damage (i.e. bankrupt | ||||||
35 | and closed family and other independent businesses) being | ||||||
36 | irreversible. |
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1 | (z) Federal regulations also fail to take into account the | ||||||
2 | unique circumstances associated with the retail motor fuel | ||||||
3 | industry, including but not necessarily limited to the | ||||||
4 | following: | ||||||
5 | (1) There is a barrier to entry into the motor fuel | ||||||
6 | market on the basis of product differentiation because | ||||||
7 | motor fuel is perceived largely as a commodity product, | ||||||
8 | where product differentiation is small and price is the | ||||||
9 | number one basis of competition, providing little for the | ||||||
10 | independent motor fuel marketer to do on a strategy of | ||||||
11 | differentiation. | ||||||
12 | (2) The high investment cost required to enter the | ||||||
13 | motor fuel industry (with the average cost for fuel | ||||||
14 | improvements and fuel equipment running approximately | ||||||
15 | $300,000 and the cost for land, land development, and | ||||||
16 | improvements and equipment for cost-sharing running as | ||||||
17 | much as $900,000, for a total entry cost being as much as | ||||||
18 | $1.2 million depending on the geographic area of the | ||||||
19 | State), requires those entering into the motor fuel | ||||||
20 | business to have a reasonable opportunity to earn a | ||||||
21 | positive return on investment. | ||||||
22 | (3) The threat of continued or repeated predatory | ||||||
23 | pricing practices, creates a significant barrier to | ||||||
24 | re-entry into the business by those previously run out of | ||||||
25 | business, as well as a significant barrier to entry by | ||||||
26 | those wanting to enter the market for the first time. | ||||||
27 | (aa) On the other end of the spectrum, in the past, | ||||||
28 | following times of national crisis, an isolated number of motor | ||||||
29 | fuel retailers have engaged in price gouging, which has served | ||||||
30 | to exacerbate the crisis by stimulating public panic over the | ||||||
31 | purchase of motor fuel. | ||||||
32 | (bb) Competent independent motor fuel marketers (dealers, | ||||||
33 | distributors, jobbers, and wholesalers) are vital to a healthy, | ||||||
34 | competitive marketplace, and are important to the economic | ||||||
35 | viability of the State and its local communities. | ||||||
36 | (cc) While retailers of motor fuel should not be guaranteed |
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1 | a financial net profit from the marketing of motor fuel, | ||||||
2 | retailers of motor fuel also should not be guaranteed a | ||||||
3 | financial net loss from the marketing of motor fuel. | ||||||
4 | (dd) Consumer protection and protection of honest | ||||||
5 | businesses are both important to the economic viability of the | ||||||
6 | State and local communities. | ||||||
7 | (ee) The General Assembly declares that there is a need for | ||||||
8 | public policy that is balanced between the needs of consumers | ||||||
9 | and of businesses, and that demonstrates care and concern for | ||||||
10 | both consumers and those businesses that serve consumers. | ||||||
11 | (ff) The General Assembly declares that there is a need for | ||||||
12 | public policy based on protection through prevention; | ||||||
13 | protection of competently run, diversified, cost-sharing motor | ||||||
14 | fuel retailers through the prevention of pricing that is | ||||||
15 | predatory; and protection of consumers through the prevention | ||||||
16 | of the lessening of competition (resulting from the elimination | ||||||
17 | of competent retailers of motor fuel), and through the | ||||||
18 | prevention of pricing that is gouging following times of | ||||||
19 | national crises and State emergencies.
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20 | (gg) The General Assembly declares that there is a need for | ||||||
21 | public policy to set a floor below which the retail price of | ||||||
22 | motor fuel shall not be set, unless the motor fuel marketer can | ||||||
23 | demonstrate that the price of motor fuel, below the floor, is | ||||||
24 | not below its retail selling cost of such motor fuel, or unless | ||||||
25 | the motor fuel marketer can demonstrate that it is meeting the | ||||||
26 | equally low price of a competitor, thereby allowing retail | ||||||
27 | motor fuel prices to be set by those who are able to establish | ||||||
28 | the lowest cost of selling motor fuel. | ||||||
29 | (hh) The General Assembly further declares that there is | ||||||
30 | also a need, during times of national disaster or State | ||||||
31 | emergency, for public policy to set a ceiling above which the | ||||||
32 | retail price of motor fuel shall not be set, unless the motor | ||||||
33 | fuel marketer can demonstrate that the price of motor fuel, | ||||||
34 | above the ceiling, is necessary to cover its costs of doing | ||||||
35 | business. | ||||||
36 | (ii) In order to provide the most simplicity in determining |
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1 | when a motor fuel marketer is or is not in compliance with this | ||||||
2 | Act, and to also eliminate the need for rules and regulations | ||||||
3 | governing wholesale price discrimination, transfer pricing, | ||||||
4 | and related issues involved in the subsidization of motor fuel | ||||||
5 | at retail from a vertically integrated motor fuel marketer, the | ||||||
6 | General Assembly declares that there is a need for a neutral | ||||||
7 | guideline on which to base fuel prices for the purpose of | ||||||
8 | determining if below-cost pricing or price-gouging is | ||||||
9 | occurring. | ||||||
10 | (jj) The General Assembly declares Oil Price Information | ||||||
11 | Service (OPIS) as the neutral guideline on which to base fuel | ||||||
12 | prices for the purpose of determining if below-cost pricing or | ||||||
13 | price-gouging is occurring. OPIS is a publication that is used | ||||||
14 | as a benchmark by the world to buy and sell U.S. gasoline and | ||||||
15 | diesel fuel. OPIS has no stake in fuel transactions, is not | ||||||
16 | funded by oil industry initiatives, and strictly adheres to | ||||||
17 | antitrust guidelines determined by independent legal counsel. | ||||||
18 | (kk) Because a motor fuel marketer shall be allowed to meet | ||||||
19 | the equally low price of another motor fuel marketer, there | ||||||
20 | must be a mechanism that provides for the periodic restoration | ||||||
21 | of pricing of motor fuel to a level that is not below cost. | ||||||
22 | (ll) Below-cost selling laws have been effective in other | ||||||
23 | states in protecting competent independent and small-business | ||||||
24 | retailers and wholesalers from subsidized, below-cost pricing. | ||||||
25 | The purpose of this Act is to substantially lessen subsidized | ||||||
26 | pricing of petroleum and related products, while still allowing | ||||||
27 | the reduction of motor fuel pricing through cost-sharing over | ||||||
28 | the sales of other products and services, where cost-savings | ||||||
29 | are the result of sharing personnel and other relevant cost | ||||||
30 | factors in motor fuel retailing, including sales, management, | ||||||
31 | maintenance, accounting, and property costs. | ||||||
32 | (mm) This Act provides that the advertising, offering for | ||||||
33 | sale, or sale of motor fuel below cost or at a cost lower than | ||||||
34 | charged other persons in the same marketing area is necessarily | ||||||
35 | done with the intent of injuring competitors or destroying or | ||||||
36 | substantially lessening competition, and is an unfair and |
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1 | deceptive trade practice. The policy of the State is to promote | ||||||
2 | the general welfare through the prohibition of such sales. The | ||||||
3 | purpose of this Act is to carry out that policy in the public | ||||||
4 | interest, providing for exceptions under stated circumstances, | ||||||
5 | providing for enforcement and providing penalties. | ||||||
6 | (nn) Because motor fueling constitutes one of the most | ||||||
7 | competitive industries in the marketplace, it is important that | ||||||
8 | one motor fuel marketer not be advantaged over another motor | ||||||
9 | fuel marketer as a result of any type of governmental subsidy; | ||||||
10 | therefore, the development of a motor fuel facility, or the | ||||||
11 | development of a facility that has, as a part thereof, a | ||||||
12 | facility for the sale of motor fuel, should not be | ||||||
13 | government-subsidized when such facility would be in | ||||||
14 | competition with another such facility in the same market area. | ||||||
15 | (oo) It is believed that the costs of ensuring compliance | ||||||
16 | with and enforcing this Act will be more than offset by the | ||||||
17 | additional sales and income tax revenues stemming from said | ||||||
18 | compliance and enforcement.
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19 | Section 10. Definitions. In this Act: | ||||||
20 | "Actual costs of selling motor fuel" means any costs and | ||||||
21 | expenses reasonably incurred by a retailer of motor fuel | ||||||
22 | associated with the selling of motor fuel at a retail motor | ||||||
23 | fuel facility, including the costs and expenses defined in this | ||||||
24 | Act (the applicable laid-in cost of motor fuel, plus expense | ||||||
25 | costs of selling motor fuel, plus investment costs of selling | ||||||
26 | motor fuel, plus costs and expenses excluded from expense costs | ||||||
27 | of selling motor fuel, plus extraordinary costs of selling | ||||||
28 | motor fuel, plus other costs reasonably incurred). | ||||||
29 | "Actual costs of selling motor fuel from dedicated | ||||||
30 | supplier" means any costs and expenses reasonably incurred by a | ||||||
31 | retailer of motor fuel associated with the selling of motor | ||||||
32 | fuel at a retail motor fuel facility, including the applicable | ||||||
33 | laid-in cost of motor fuel originating from dedicated supplier, | ||||||
34 | plus expense costs of selling motor fuel, plus investment costs | ||||||
35 | of selling motor fuel, plus costs and expenses excluded from |
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1 | expense costs of selling motor fuel, plus extraordinary costs | ||||||
2 | of selling motor fuel, plus other costs reasonably incurred). | ||||||
3 | "Actual costs of selling motor fuel per gallon" means the | ||||||
4 | actual costs of selling motor fuel, divided by the number of | ||||||
5 | gallons sold, during the period in which motor fuel was sold. | ||||||
6 | "Actual costs of selling motor fuel per gallon from | ||||||
7 | dedicated supplier" means the actual costs of selling motor | ||||||
8 | fuel from dedicated supplier, divided by the number of gallons | ||||||
9 | sold, during the period in which motor fuel was sold. | ||||||
10 | "Actual health insurance costs" means the health insurance | ||||||
11 | costs, if any, actually incurred. | ||||||
12 | "Advertising expenses" means the following forms of | ||||||
13 | advertising: newspaper, Internet, magazine, television, radio, | ||||||
14 | direct-mail, billboard, and other forms of off-premises | ||||||
15 | advertising related to motor fuel. | ||||||
16 | "Affiliate" means an entity that owns or controls, or is | ||||||
17 | owned or controlled by, another person, whether through stock | ||||||
18 | ownership or otherwise. | ||||||
19 | "Average monthly gallons of motor fuel sold" means the | ||||||
20 | mathematical result obtained by dividing the total number of | ||||||
21 | gallons of motor fuel sold at a given retail motor fuel | ||||||
22 | facility over the 12 months preceding the date in question, by | ||||||
23 | the number of months that motor fuel was sold over the 12-month | ||||||
24 | period. | ||||||
25 | "Below cost sale", "below cost selling", "selling below | ||||||
26 | cost", "to sell below cost", and "sell below cost" means the | ||||||
27 | selling of gasoline or No. 2 low sulfur clear diesel fuel at | ||||||
28 | retail in the State at a price, excluding sales taxes and other | ||||||
29 | taxes or fees imposed by the government on the sale of the fuel | ||||||
30 | at the pump, that is below the sum of the following: the | ||||||
31 | applicable laid-in cost of motor fuel, plus any and all | ||||||
32 | governmentally imposed taxes or fees on the sale of the motor | ||||||
33 | fuel at the pump, plus the lower of: (1) a positive gross | ||||||
34 | margin on the motor fuel sale (before non-product costs and | ||||||
35 | expenses) to the retailer of 6% of the retail pump price of the | ||||||
36 | motor fuel (also referred to as the regulated minimum retail |
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1 | cost price of motor fuel sold), or (2) the mathematical sum of | ||||||
2 | the applicable laid-in cost of motor fuel plus the cost of | ||||||
3 | selling the motor fuel at retail on a per gallon basis. | ||||||
4 | "Competition" means the vying for motor fuel sales between | ||||||
5 | any 2 persons selling motor fuel in the same market area at the | ||||||
6 | same level of distribution. | ||||||
7 | "Competitor" means any person who vies for motor fuel sales | ||||||
8 | against another person in the same market area at the same | ||||||
9 | level of distribution. | ||||||
10 | "Cost of selling motor fuel at retail on a per gallon cost | ||||||
11 | basis" means a per gallon cost determined mathematically by the | ||||||
12 | sum of the following 2 cost items: (1) the mathematical result | ||||||
13 | derived from dividing the expense costs of selling motor fuel | ||||||
14 | at retail during the 24 months before the date in question by | ||||||
15 | the number of gallons of motor fuel sold during the 24 months | ||||||
16 | before the date in question, plus (2) the mathematical result | ||||||
17 | derived from dividing the investment costs of selling motor | ||||||
18 | fuel at retail by the average monthly gallons of motor fuel | ||||||
19 | sold. | ||||||
20 | "Credit card and bank card related expenses" means any | ||||||
21 | costs to the motor fuel retailer associated with accommodating | ||||||
22 | the payment of motor fuel by way of bank and credit card | ||||||
23 | transactions, including but not limited to fixed fees, | ||||||
24 | transaction fees, and network processing fees. In the event | ||||||
25 | that goods and services, other than motor fuel, are sold within | ||||||
26 | the same facility as motor fuel, in the event that the payment | ||||||
27 | of such goods and services are also by way of bank and credit | ||||||
28 | card transactions, and to the extent that any costs associated | ||||||
29 | with accommodating the payment of motor fuel by way of bank and | ||||||
30 | credit cards are not made separate and readily distinguishable | ||||||
31 | from the costs associated with accommodating the payment of | ||||||
32 | non-motor fuel items by bank and credit cards, then the portion | ||||||
33 | of costs not made separate and readily distinguishable that | ||||||
34 | should be allocated as motor fuel related costs shall be | ||||||
35 | determined mathematically as follows: total bank card and | ||||||
36 | credit card related costs incurred by the retailer for the |
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1 | applicable retail facility, multiplied by the total dollars | ||||||
2 | associated with motor fuel purchases paid by bank or credit | ||||||
3 | cards at the retail facility, divided by the total dollars | ||||||
4 | associated with total purchases paid by bank or credit cards at | ||||||
5 | the facility. | ||||||
6 | "Dedicated supplier" means a motor fuel supplier of a motor | ||||||
7 | fuel retailer (for the retail facility in question) to which | ||||||
8 | the retailer is contractually committed at the time of the | ||||||
9 | motor fuel purchase by the retailer from the retailer's | ||||||
10 | supplier (for the retail facility in question). | ||||||
11 | "Department of Revenue" and "Department" means the | ||||||
12 | Department of Revenue of the State of Illinois.
"Depreciation | ||||||
13 | allowance on fuel equipment" means the original acquisition and | ||||||
14 | installation cost value in all installed fuel equipment | ||||||
15 | (including but not limited to fuel pumps, fuel dispensers, fuel | ||||||
16 | tanks, fuel piping, fuel tank gauge systems, fuel controllers, | ||||||
17 | credit card acceptance devices on the fuel dispensers, fuel | ||||||
18 | distribution boxes, pump access modules, and fuel related | ||||||
19 | signage), divided by a factor of 180 months. | ||||||
20 | "Depreciation allowance on fuel improvements" means, on a | ||||||
21 | monthly basis, the original cost of all fuel improvements | ||||||
22 | (including but not limited to fuel canopy, fuel canopy | ||||||
23 | fixtures, fuel canopy and fuel canopy breezeway fixtures, | ||||||
24 | pavement above the underground storage tanks and piping, | ||||||
25 | pavement below the fuel canopy and canopy breezeway, fuel | ||||||
26 | islands, and fuel related electrical conduit and wiring, fuel | ||||||
27 | kiosk, and that portion of any other building where motor fuel | ||||||
28 | transactions are accommodated), divided by a factor of 240 | ||||||
29 | months. | ||||||
30 | "Direct labor costs" means the wages and payroll taxes | ||||||
31 | associated with those personnel directly involved in the sale, | ||||||
32 | delivery, or transfer of motor fuel, including maintenance on | ||||||
33 | motor fuel facilities. Direct labor costs also include | ||||||
34 | workman's compensation, unemployment insurance, imputed health | ||||||
35 | insurance costs, and other human resources costs directly | ||||||
36 | related to such personnel (excluding, actual health insurance |
| |||||||
| |||||||
1 | costs). In the event that goods and services, other than motor | ||||||
2 | fuel, are sold within the same facility as motor fuel, in the | ||||||
3 | event that the personnel directly involved in the sale, | ||||||
4 | delivery, or transfer of motor fuel are also involved in the | ||||||
5 | sale or operations of such other goods and services, and to the | ||||||
6 | extent that the personnel costs associated with motor fuel are | ||||||
7 | not separate and readily distinguishable from the personnel | ||||||
8 | costs associated with non-motor fuel sales and operational | ||||||
9 | activities, then the portion of costs not made separate and | ||||||
10 | readily distinguishable that should be allocated as motor fuel | ||||||
11 | related costs shall be determined mathematically as follows: | ||||||
12 | non-distinguishable direct labor costs multiplied by the total | ||||||
13 | motor fuel sales dollars at the retail facility, divided by the | ||||||
14 | total sales dollars of all products and services (motor fuels | ||||||
15 | sales and non-motor fuel sales). | ||||||
16 | "Disaster" has the meaning given in Section 4 of the | ||||||
17 | Illinois Emergency Management Agency Act. | ||||||
18 | "Expense costs of selling motor fuel at retail" means the | ||||||
19 | mathematical sum obtained by adding the following costs | ||||||
20 | associated with the retailing of motor fuel at a given retail | ||||||
21 | facility: labor costs related to motor fuel sales and | ||||||
22 | management (including applicable direct labor and indirect | ||||||
23 | labor costs), plus credit card and bank card related expenses, | ||||||
24 | plus utilities expenses, plus property taxes, plus insurance | ||||||
25 | expenses, plus maintenance expenses, plus supplies expenses, | ||||||
26 | plus telecommunications expenses, plus inventory losses, plus | ||||||
27 | regulatory compliance costs. Expense costs of selling motor | ||||||
28 | fuel at retail does not include interest on borrowed capital, | ||||||
29 | dividends paid on equity capital, advertising expenses, actual | ||||||
30 | health insurance costs, life insurance costs, or leasing costs | ||||||
31 | (since a substitute for leasing costs is provided by investment | ||||||
32 | costs of selling motor fuel as defined in this Section). | ||||||
33 | "Extraordinary costs of selling motor fuel" means costs | ||||||
34 | other than the costs comprising expense costs of selling motor | ||||||
35 | fuel at retail, other than laid-in cost of motor fuel, and | ||||||
36 | other than the investment costs of selling motor fuel at |
| |||||||
| |||||||
1 | retail, when such costs are not customarily incurred to | ||||||
2 | accommodate the sale of motor fuel at retail. While it is | ||||||
3 | difficult to anticipate what such costs may include, and while | ||||||
4 | what follows is not intended to limit the range of what may be | ||||||
5 | an extraordinary cost, one example would be the costs | ||||||
6 | associated with the placement and running of an electric | ||||||
7 | generator to sell motor fuel during power outages. | ||||||
8 | "Government subsidy" means any State or local governmental | ||||||
9 | money disbursed to develop a facility or to develop the | ||||||
10 | infrastructure contained on property of the facility, as well | ||||||
11 | as any State or local government money foregone by any | ||||||
12 | governmental entity as a result of the development of a | ||||||
13 | facility; such foregone money shall include, but is not limited | ||||||
14 | to, reduced taxes stemming from incremental tax districts and | ||||||
15 | enterprise zones. | ||||||
16 | "Gross margin on motor fuel" means the difference between | ||||||
17 | the retail price of the motor fuel (less taxes and | ||||||
18 | governmentally imposed fees levied on the sale of the motor | ||||||
19 | fuel at the pump) and the product cost of the motor fuel, such | ||||||
20 | product cost defined as the regional Oil Price Information | ||||||
21 | Service (OPIS) average on the previous day for the gasoline | ||||||
22 | grade being sold or for No. 2 low sulfur clear diesel fuel, | ||||||
23 | plus all applicable taxes and governmentally fees levied on the | ||||||
24 | motor fuel purchase by and delivery to the retailer, plus | ||||||
25 | transportation charges to transport the motor fuel from the | ||||||
26 | wholesale point to the retail point. | ||||||
27 | "Imputed health insurance costs" means 75% of the most | ||||||
28 | recent reported average premiums cost for employer-sponsored | ||||||
29 | health insurance coverage, as published by the Henry J. Kaiser | ||||||
30 | Family Foundation (or other authoritative source as selected by | ||||||
31 | the Department), applicable to all specified employees of the | ||||||
32 | motor fuel retailer (except those that have health insurance | ||||||
33 | coverage through an employer group health plan other than his | ||||||
34 | or her retail motor fuel employer) who are working for the | ||||||
35 | motor fuel retailer for 30 or more hours per work week, and who | ||||||
36 | have been employed by the motor fuel retailer for at least 90 |
| |||||||
| |||||||
1 | consecutive days working 30 or more hours per work week.
| ||||||
2 | "Inadvertent incident" means that the incident can be shown | ||||||
3 | to be not deliberate, but, rather, accidental. Examples of | ||||||
4 | accidental include, but are not limited to, errors or omissions | ||||||
5 | on the part of the retail personnel who change the prices, the | ||||||
6 | failure on the part of clerical personnel to properly enter | ||||||
7 | pricing data into a data processing system, and the failure to | ||||||
8 | include, in computing laid-in cost of motor fuel, the wholesale | ||||||
9 | pricing of a new supplier due to a lack of awareness of such | ||||||
10 | new supplier. Accidental shall not be construed to mean that a | ||||||
11 | person failed to do the computations necessary to ensure | ||||||
12 | compliance with this Act. | ||||||
13 | "Indirect labor costs" means labor costs other than direct | ||||||
14 | labor costs, including but not limited, to supervisory, | ||||||
15 | bookkeeping, and administrative personnel who are indirectly | ||||||
16 | related to the sale, delivery, transfer, or accounting of motor | ||||||
17 | fuel, whether or not such personnel are situated at the motor | ||||||
18 | fuel facility. Indirect labor costs also include workman's | ||||||
19 | compensation, unemployment insurance, imputed health | ||||||
20 | insurance, and other human resources costs directly related to | ||||||
21 | such personnel (excluding actual health insurance costs). In | ||||||
22 | the event that goods and services, other than motor fuel, are | ||||||
23 | sold within the same facility as motor fuel, in the event that | ||||||
24 | the personnel indirectly involved in the sale, delivery, or | ||||||
25 | transfer of motor fuel are also involved in the sale or | ||||||
26 | operations of such other goods and services, and to the extent | ||||||
27 | that the personnel costs associated with motor fuel are not | ||||||
28 | separate and readily distinguishable from the personnel costs | ||||||
29 | associated with non-motor fuel sales or operational | ||||||
30 | activities, then the portion of costs not made separate and | ||||||
31 | readily distinguishable that should be allocated as motor fuel | ||||||
32 | related costs shall be determined mathematically as follows: | ||||||
33 | non-distinguishable indirect labor costs multiplied by the | ||||||
34 | total motor fuel sales dollars at the retail facility, divided | ||||||
35 | by the total sales dollars of all products and services (motor | ||||||
36 | fuels sales and non-motor fuel sales) at the facility. |
| |||||||
| |||||||
1 | "Insurance expenses" means any insurance costs associated | ||||||
2 | with the retail sale of motor fuel, including liability | ||||||
3 | insurance, property insurance, as well as workers | ||||||
4 | compensation, unemployment compensation, and employer's | ||||||
5 | liability costs and expenses on direct and indirect labor, | ||||||
6 | except that insurance expenses does not include actual health | ||||||
7 | insurance costs, imputed health insurance costs, or life | ||||||
8 | insurance costs of direct and indirect labor. | ||||||
9 | "Inventory losses" means losses due to breakage, damage, | ||||||
10 | shrink, or theft. | ||||||
11 | "Investment costs of selling motor fuel at retail" means | ||||||
12 | the mathematical sum obtained by adding land holding costs, | ||||||
13 | plus land development costs, plus depreciation allowance on | ||||||
14 | fuel improvements, plus depreciation allowance on fuel | ||||||
15 | equipment. | ||||||
16 | "Isolated incident" means that the occurrence was | ||||||
17 | exceptional and not generally repeated, unless the cause for | ||||||
18 | repeating was definitely accidental and such accident occurred | ||||||
19 | with the retailer having one or less prior inquiries from the | ||||||
20 | Department of Revenue within 19 months prior to the occurrence, | ||||||
21 | for the facility in question. | ||||||
22 | "Labor costs" means direct labor costs plus indirect labor | ||||||
23 | costs. | ||||||
24 | "Labor costs related to motor fuel sales and management" | ||||||
25 | means the portion of labor costs that are applicable to the | ||||||
26 | sales, management, accounting, and operations of the retailing | ||||||
27 | of motor fuels, including maintaining the cleanliness of and | ||||||
28 | stocking supplies at motor fuel facilities. Since cashiers, | ||||||
29 | managers, accounting, and operations personnel are often | ||||||
30 | involved in the sales of products and services other than motor | ||||||
31 | fuels, a good faith effort must be made to determine the | ||||||
32 | portion of labor costs that should be allocated to the motor | ||||||
33 | fuels operation versus the non-motor fuels operations. Absent a | ||||||
34 | more logical basis, the portion allocated to motor fuel sales | ||||||
35 | shall be mathematically determined by multiplying the total | ||||||
36 | labor costs by the total motor fuel sales dollars, then |
| |||||||
| |||||||
1 | dividing this result by the total dollars of all sales in which | ||||||
2 | such personnel are involved (motor fuel and non-motor fuel | ||||||
3 | sales and operations). | ||||||
4 | "Laid-in cost of motor fuel" means the regional OPIS | ||||||
5 | average price per gallon on the previous day for the gasoline | ||||||
6 | grade being sold or for No. 2 low sulfur clear diesel fuel, | ||||||
7 | plus all applicable taxes and governmentally imposed fees | ||||||
8 | applicable to the motor fuel purchase by and delivery to the | ||||||
9 | retailer, plus transportation charges to transport the motor | ||||||
10 | fuel from the wholesale or supply point to the retail point, | ||||||
11 | plus one quarter of a cent per gallon (for ordering and other | ||||||
12 | inventory management costs associated with motor fuel). | ||||||
13 | "Laid-in cost of motor fuel originating from dedicated | ||||||
14 | supplier" means the actual price per gallon charged to the | ||||||
15 | retailer by the retailer's dedicated supplier on the previous | ||||||
16 | day for the gasoline grade being sold or for No. 2 low sulfur | ||||||
17 | clear diesel fuel, plus all applicable taxes and governmentally | ||||||
18 | imposed fees applicable to the motor fuel purchase by or | ||||||
19 | delivery to the retailer, plus transportation charges to | ||||||
20 | transport the motor fuel from the wholesale or supply point to | ||||||
21 | the retail point, plus one quarter of a cent per gallon (for | ||||||
22 | ordering and other inventory management costs associated with | ||||||
23 | motor fuel). | ||||||
24 | "Land holding costs" means the market value of the land | ||||||
25 | occupied by motor fuel facilities (motor fuel facilities | ||||||
26 | consisting of motor fuel improvements and equipment). Since | ||||||
27 | motor fuel facilities will not always occupy all of the land at | ||||||
28 | a site where motor fuel sales take place in conjunction with | ||||||
29 | the sales of other goods and services, the portion of the land | ||||||
30 | that the motor fueling facilities occupy shall be computed to | ||||||
31 | determine the value of the land occupied by motor fuel | ||||||
32 | facilities. The proportional value of such land shall then be | ||||||
33 | multiplied by a factor of 7%, then divided by a factor of 12 to | ||||||
34 | determine the land holding costs per month. In the event that | ||||||
35 | the land is leased, not owned, by the motor fuel marketer, and | ||||||
36 | if the monthly lease dollar amount, for the portion of the land |
| |||||||
| |||||||
1 | occupied by the motor fueling facilities, is greater than the | ||||||
2 | proportional value of the land and multiplied by a factor of | ||||||
3 | 7%, divided by a factor of 12, then the land holding costs | ||||||
4 | shall be equal to the monthly lease cost on such portion of the | ||||||
5 | land. | ||||||
6 | "Land development costs" means the costs of developing land | ||||||
7 | occupied by motor fuel facilities (motor fuel facilities | ||||||
8 | consisting of motor fuel improvements and equipment). In the | ||||||
9 | event that motor fuel facilities do not occupy all of the land | ||||||
10 | development at a site where motor fuel sales take place in | ||||||
11 | conjunction with sales of other goods and services, the portion | ||||||
12 | of the land development occupied by motor fuel facilities shall | ||||||
13 | be determined mathematically as follows: total costs of | ||||||
14 | developing the land, multiplied by the area, in square feet, | ||||||
15 | occupied by fuel improvements and fuel equipment, as well as | ||||||
16 | the area of driveway entrances and driveways utilized by motor | ||||||
17 | fueling motorists in their ingress to and egress from motor | ||||||
18 | fueling facilities, divided by the total area, in square feet, | ||||||
19 | of the entire developed area of land.
| ||||||
20 | "Leasing costs" means lease expenses on land, land | ||||||
21 | improvements, fuel improvements, and fuel equipment. In the | ||||||
22 | event that motor fuel facilities do not comprise all of the | ||||||
23 | land development at a site where motor fuel sales take place in | ||||||
24 | conjunction with the sales of other goods and services, the | ||||||
25 | portion of the land and land improvements occupied by motor | ||||||
26 | fuel retailing shall be determined mathematically as follows: | ||||||
27 | total lease costs of the land, land improvements, fuel | ||||||
28 | improvements, and fuel equipment multiplied by the area, in | ||||||
29 | square feet, occupied by fuel improvements and fuel equipment, | ||||||
30 | as well as the area of driveway entrances and driveways | ||||||
31 | utilized by motor fueling motorists in their ingress to and | ||||||
32 | egress from motor fueling facilities, divided by the total | ||||||
33 | area, in square feet, of the entire developed area of land.
| ||||||
34 | "Maintenance expenses" means the maintenance costs | ||||||
35 | associated with fuel improvements, fuel equipment, and land | ||||||
36 | improvements. In the event that motor fuel facilities do not |
| |||||||
| |||||||
1 | comprise all of the land at a site where motor fuel sales take | ||||||
2 | place in conjunction with the sales of other goods and | ||||||
3 | services, the proportional cost of maintenance on the land | ||||||
4 | improvements allocable to motor fuel retailing shall be | ||||||
5 | determined mathematically as follows: total maintenance costs | ||||||
6 | on the land and on the land improvements, multiplied by the | ||||||
7 | area, in square feet, occupied by fuel improvements and fuel | ||||||
8 | equipment, as well as the area of driveway entrances and | ||||||
9 | driveways utilized by motor fueling motorists in their ingress | ||||||
10 | to and egress from motor fueling facilities, divided by the | ||||||
11 | total area, in square feet, of the entire area of Land. | ||||||
12 | "Market area" means a distance of 4 miles by road in | ||||||
13 | non-urban areas; a distance of 2.5 miles by road in a standard | ||||||
14 | metropolitan statistical area; and a distance of 60 miles by | ||||||
15 | road for truck stop outlets with more than 60% of fuel sales to | ||||||
16 | vehicles with gross weight of over 50,000 lbs. | ||||||
17 | "Market value of land" means the appraised valuation of the | ||||||
18 | land occupied by a retail motor fueling facility, such | ||||||
19 | appraisal to have been given by a certified, MAI Appraiser | ||||||
20 | sometime within a 48-month period before the date or within the | ||||||
21 | 18-month period following the date that such appraisal is used | ||||||
22 | to document land holding costs under this Act. | ||||||
23 | "Motor fuel" means those products upon which the State | ||||||
24 | excise tax levied, or defined, in the Motor Fuel Tax Law, as | ||||||
25 | amended, is imposed. | ||||||
26 | "Oil Price Information Service" (OPIS) means the daily | ||||||
27 | publication containing oil price information that is a widely | ||||||
28 | accepted independent fuel price benchmark for supply. | ||||||
29 | "Person" means any individual, club, firm, association, | ||||||
30 | organization, partnership, business, trust, joint-stock | ||||||
31 | company, company, corporation, or other entity, legal or | ||||||
32 | otherwise. | ||||||
33 | "Price gouging of motor fuel", "price gouging", or "motor | ||||||
34 | fuel price gouging" means the self-service sale of gasoline or | ||||||
35 | No. 2 low sulfur clear diesel fuel at retail in the State at a | ||||||
36 | price greater than the sum of the following: the applicable |
| |||||||
| |||||||
1 | laid-in cost of motor fuel, plus applicable taxes and | ||||||
2 | governmentally imposed fees levied on the sale of the motor | ||||||
3 | fuel at the pump, plus a gross profit margin to the retailer, | ||||||
4 | on the sale of motor fuel at self-service, of the greater of: | ||||||
5 | (1) the regulated minimum retail cost price of motor fuel sold | ||||||
6 | plus 19 cents per gallon, or (2) 19 cents per gallon above the | ||||||
7 | retailer's actual costs of selling motor fuel per gallon at the | ||||||
8 | time the motor fuel was sold. The greater is defined as the | ||||||
9 | "regulated maximum retail cost price of motor fuel sold". | ||||||
10 | "Property taxes" means taxes on land, real estate, | ||||||
11 | improvements, and personal property.
| ||||||
12 | "Regional OPIS average price" for an applicable motor fuel | ||||||
13 | station means the average price of all wholesale rack suppliers | ||||||
14 | actively supplying and offering for sale motor fuel within a | ||||||
15 | 100-mile radius of the motor fuel station being supplied, | ||||||
16 | excluding, the one highest priced terminal supplier within that | ||||||
17 | 100-mile radius. Notwithstanding the foregoing, in the event | ||||||
18 | that there are not at least 3 wholesale rack suppliers actively | ||||||
19 | supplying and offering for sale motor fuel within a 100-mile | ||||||
20 | radius of a motor fuel station being supplied, the radius shall | ||||||
21 | be extended until there are at least 3 such wholesale rack | ||||||
22 | suppliers. | ||||||
23 | "Regulated maximum retail cost price of motor fuel sold" or | ||||||
24 | "regulated maximum price" relates to motor fuel sales at | ||||||
25 | self-service, and means the mathematical sum of the following: | ||||||
26 | the applicable laid-in cost of motor fuel, plus applicable | ||||||
27 | taxes and governmentally imposed fees levied on the sale of the | ||||||
28 | motor fuel at the pump, plus a gross profit margin to the | ||||||
29 | retailer, on the sale of motor fuel at self-service, of the | ||||||
30 | greater of: (1) the regulated minimum retail cost price of | ||||||
31 | motor fuel sold plus 19 cents per gallon; (2) 19 cents per | ||||||
32 | gallon above the retailer's actual costs of selling motor fuel | ||||||
33 | per gallon at the time the motor fuel was sold; or (3) 19 cents | ||||||
34 | per gallon above the retailer's actual costs of selling motor | ||||||
35 | fuel per gallon from dedicated supplier at the time the motor | ||||||
36 | fuel was sold. |
| |||||||
| |||||||
1 | "Regulated minimum retail cost price of motor fuel sold" or | ||||||
2 | "regulated minimum price" means the mathematical sum of the | ||||||
3 | following: the applicable laid-in cost of motor fuel, plus all | ||||||
4 | applicable taxes and governmentally imposed fees levied on the | ||||||
5 | sale of motor fuel at the pump, plus a positive gross margin on | ||||||
6 | the sale of the motor fuel (before non-product costs and | ||||||
7 | expenses) to the retailer of 6%.
| ||||||
8 | "Regulated period for price restoration" means every | ||||||
9 | Wednesday, during the period of time from 8:30 a.m. to 11:30 | ||||||
10 | a.m., whenever the retailer's actual price of motor fuel is | ||||||
11 | less than the retailer's regulated minimum retail cost price of | ||||||
12 | motor fuel sold. | ||||||
13 | "Regulatory compliance costs" means those costs incurred | ||||||
14 | by the motor fuel retailer to comply with regulations governing | ||||||
15 | the storage and sale of motor fuel at a retail facility, | ||||||
16 | including, but not limited to, costs associated with meter | ||||||
17 | accuracy, leak detection of tanks or piping, and corrosion | ||||||
18 | protection of tanks or piping, but only to the extent that such | ||||||
19 | costs are not already included in depreciation allowance on | ||||||
20 | fuel equipment. | ||||||
21 | "Relevant geographic market" means the geographic area of | ||||||
22 | effective competition.
| ||||||
23 | "Retailer" means a person engaged in the business of | ||||||
24 | selling motor fuel to a member of the motoring public for | ||||||
25 | consumption. | ||||||
26 | "Sale" or "sell" means a transfer of money or other value | ||||||
27 | or combination, exchange, barter, gift, sale, offer for sale, | ||||||
28 | advertisement for sale, soliciting an order, and distribution | ||||||
29 | in any manner or by any means whatsoever, of motor fuel, | ||||||
30 | including a transfer of motor fuel by a person to that person, | ||||||
31 | to a member of that person, or to an affiliate. | ||||||
32 | "Supply point" or "terminal facility" means any inland, | ||||||
33 | waterfront, or offshore appurtenance on land used for the | ||||||
34 | purpose of storing, handling, or transferring motor fuel, but | ||||||
35 | does not include, wholesale bulk storage facilities owned or | ||||||
36 | operated by a retailer, unless other retailers are also |
| |||||||
| |||||||
1 | supplied from such wholesale bulk storage facilities. | ||||||
2 | "Telecommunications expenses" means all communications | ||||||
3 | expenses incurred to accommodate the sale of motor fuel at | ||||||
4 | retail, including but not limited to, telephone line and use | ||||||
5 | expenses, Internet access fees, satellite service expenses, | ||||||
6 | cable fees, and other wire and wireless communications | ||||||
7 | expenses. In the event that goods and services, other than | ||||||
8 | motor fuel, are sold within the same facility as motor fuel, in | ||||||
9 | the event that the telecommunications expenses are shared to | ||||||
10 | accommodate sales and operations associated with the other | ||||||
11 | goods and services, and to the extent that the | ||||||
12 | telecommunications costs associated with motor fuel are not | ||||||
13 | separate and readily distinguishable from the | ||||||
14 | telecommunications costs associated with non-motor fuel sales | ||||||
15 | or operational activities, then the portion of costs not made | ||||||
16 | separate and readily distinguishable that should be allocated | ||||||
17 | as telecommunications expenses for the facility shall be | ||||||
18 | determined mathematically as follows: total telecommunications | ||||||
19 | costs for the facility multiplied by the total motor fuel sales | ||||||
20 | dollars at the facility, divided by the total sales dollars of | ||||||
21 | all products and services (motor fuels sales and non-motor fuel | ||||||
22 | sales at the facility). | ||||||
23 | "Transportation charges" shall be defined as the rate per | ||||||
24 | gallon not to exceed 1.10 times the average computed | ||||||
25 | independent commercial posted tariff (common carrier) rates | ||||||
26 | for delivery of motor fuel, from the relevant supply point to | ||||||
27 | the relevant destination point, as a single account, in effect | ||||||
28 | at time of delivery, based on the rates of at least 2 eligible | ||||||
29 | carriers.
| ||||||
30 | "Utilities expenses" means all electrical, water, sewer, | ||||||
31 | natural gas, fuel oil, propane, and other energy and utilities | ||||||
32 | expenses incurred in the sale of motor fuel at retail. In the | ||||||
33 | event that goods and services, other than motor fuel, are sold | ||||||
34 | within the same facility as motor fuel, in the event that the | ||||||
35 | utilities expenses are shared to accommodate sales and | ||||||
36 | operations associated with the other goods and services, and to |
| |||||||
| |||||||
1 | the extent that the utilities expenses associated with motor | ||||||
2 | fuel are not separate and readily distinguishable from the | ||||||
3 | utilities costs associated with non-motor fuel sales or | ||||||
4 | operational activities, then the portion of costs not made | ||||||
5 | separate and readily distinguishable that should be allocated | ||||||
6 | as motor fuel related utilities costs shall be determined | ||||||
7 | mathematically as follows: total utilities costs at the retail | ||||||
8 | facility multiplied by the total motor fuel sales dollars at | ||||||
9 | the retail facility, divided by the total sales dollars of all | ||||||
10 | products and services (motor fuels sales and non-motor fuel | ||||||
11 | sales at the retail facility). | ||||||
12 | "Wholesaler" means a person engaged in the business of | ||||||
13 | making sales of motor fuel at wholesale to a reseller of motor | ||||||
14 | fuel. | ||||||
15 | Section 15. Illegal motor fuel price gouging. | ||||||
16 | (a) It is a violation of this Act to engage in motor fuel | ||||||
17 | price gouging in response to the occurrence of a national | ||||||
18 | disaster or State emergency, except where the sale is both an | ||||||
19 | isolated and inadvertent incident. | ||||||
20 | (b) Motor fuel price gouging that occurs within the 7 days | ||||||
21 | immediately following the occurrence of a disaster or emergency | ||||||
22 | is rebuttably presumed to have been in response to the | ||||||
23 | occurrence of the disaster or emergency.
| ||||||
24 | Section 20. Illegal sale below cost. It is a violation of | ||||||
25 | this Act to sell or advertise for sale motor fuel at a retail | ||||||
26 | price that would constitute a below cost sale, except: | ||||||
27 | (a) In response to the equally low price of a competitor | ||||||
28 | within the market area (except during regulated periods for | ||||||
29 | price restoration), provided that detailed records are kept | ||||||
30 | indicating the date and time of day of each change in the sale | ||||||
31 | price of motor fuel and the identity of the person who recorded | ||||||
32 | the price change, and if the change in price is to meet a lower | ||||||
33 | price of one or more competitors, the records shall set forth | ||||||
34 | the name and address of each such competitor, specifying the |
| |||||||
| |||||||
1 | price which was met, and further documenting the price of each | ||||||
2 | such competitor each day that the price remains below cost, to | ||||||
3 | show that the retailer was responding to the equally low prices | ||||||
4 | of one or more competitors as a "follower", not a leader in the | ||||||
5 | below cost selling, and that the retailer made efforts to | ||||||
6 | support restoration of pricing to a level at or above cost when | ||||||
7 | one or more other competing retailers made such effort; | ||||||
8 | (b) During a publicized grand opening to introduce a new or | ||||||
9 | remodeled business not to exceed 72 consecutive hours in length | ||||||
10 | once every 3 years; | ||||||
11 | (c) During a bona fide clearance sale or final business | ||||||
12 | liquidation sale, not exceeding one week in length, for the | ||||||
13 | purpose of discontinuing trade in such motor fuel. (This | ||||||
14 | exception shall not be considered as the price of a competitor | ||||||
15 | and shall not be used as a basis for establishing a below cost | ||||||
16 | sale by another retailer); | ||||||
17 | (d) During a sale of motor fuel by a fiduciary or other | ||||||
18 | officer under the order or direction of any court from a good | ||||||
19 | faith effort to dispose of a grade, brand, or blend of motor | ||||||
20 | fuel. (This exception shall not be considered as the price of a | ||||||
21 | competitor and shall not be used as a basis for establishing a | ||||||
22 | below cost sale by another retailer); | ||||||
23 | (e) Where motor fuel is advertised, offered for sale, or | ||||||
24 | sold as imperfect or damaged, and the advertising, offer for | ||||||
25 | sale, or sale shall state the reason and the quantity of such | ||||||
26 | motor fuel advertised, offered for sale, or to be sold; or | ||||||
27 | (f) Where such sale is both an isolated and inadvertent | ||||||
28 | incident. | ||||||
29 | Section 25. Rebates, discounts, gifts, premiums, | ||||||
30 | promotional items, and concessions subtracted from price. The | ||||||
31 | payment or allowance of rebates, refunds, commissions, | ||||||
32 | discounts or concessions of any kind, in connection with the | ||||||
33 | sale of motor fuel, whether in the form of money, coupons, | ||||||
34 | discounts, or the value of items, articles, premiums, or | ||||||
35 | commodities gifted or price-subsidized in connection with the |
| |||||||
| |||||||
1 | sale of motor fuel, shall, be mathematically subtracted from | ||||||
2 | the retail fuel price, whether or not such are actually | ||||||
3 | subtracted from the retail fuel price at the time of the sale, | ||||||
4 | and whether or not such are offered or given by the retailer or | ||||||
5 | any other person, to determine whether a retailer is selling | ||||||
6 | below costs. | ||||||
7 | Section 30. Establishment of Motor Fuel Cost Review Board. | ||||||
8 | (a) A Motor Fuel Cost Review Board shall be established to | ||||||
9 | consider matters brought before the Board relating to issues of | ||||||
10 | motor fuel price gouging and below-cost selling. | ||||||
11 | (b) The Board shall be comprised of 5 members, including: | ||||||
12 | (1) the Director of Revenue or his or her designated | ||||||
13 | representative; | ||||||
14 | (2) a resident of Illinois who is an active retailer of | ||||||
15 | motor fuel and a member in good standing with the Illinois | ||||||
16 | Petroleum Marketers Association; | ||||||
17 | (3) an Illinois resident who is a member in good | ||||||
18 | standing with the Illinois Retail Merchants Association; | ||||||
19 | (4) a certified managerial accountant licensed to | ||||||
20 | practice public accounting in the State; and | ||||||
21 | (5) a resident of the State, retired from the petroleum | ||||||
22 | retailing industry, having had a minimum of 10 years | ||||||
23 | experience working in the retail motor fuel industry before | ||||||
24 | retiring. | ||||||
25 | (c) Appointments to the Board shall be by the Governor, | ||||||
26 | with the advice and consent of at least a majority of the | ||||||
27 | Illinois Senate. Appointments shall be for a term of 3 years. | ||||||
28 | (d) The Board shall meet and be under the direction of the | ||||||
29 | Director of Revenue, or his or her designated representative, | ||||||
30 | who shall serve as chairperson of the Board. The Board shall | ||||||
31 | meet, at minimum one time a year and at maximum 5 times a year, | ||||||
32 | at which time the members of the Board shall receive an annual | ||||||
33 | report from the Director of Revenue or his or her designated | ||||||
34 | representative, about complaints and matters relating to price | ||||||
35 | gouging and below cost selling and the activities of the |
| |||||||
| |||||||
1 | Department. | ||||||
2 | (e) The certified managerial accountant shall be | ||||||
3 | compensated at a rate that is usual and customary for | ||||||
4 | professional services provided by a certified managerial | ||||||
5 | accountant in the State, while other non-government employee | ||||||
6 | members of the Board shall be compensated at the rate $40 per | ||||||
7 | hour (such hourly rate to be increased every 3 years by a | ||||||
8 | factor based on one-half the rate of increase in the consumer | ||||||
9 | price index over the prior 3-year period) for time spent in | ||||||
10 | meetings of the Board, whether meetings be conducted in person | ||||||
11 | or by telephone conference call, with a minimum compensation | ||||||
12 | payment of $100 per person per meeting, such minimum to help | ||||||
13 | offset some of the outside preparation time and considerations | ||||||
14 | involved prior to meetings of short duration. While members of | ||||||
15 | the Board shall not be compensated for the time traveling to | ||||||
16 | and from meetings, members of the Board shall be reimbursed for | ||||||
17 | reasonable travel and lodging expenses upon request, the rates | ||||||
18 | of reimbursement for such expenses to not exceed those allowed | ||||||
19 | of State employees. Payments relating to this Section shall be | ||||||
20 | made by the Department. | ||||||
21 | Section 35. Remedies and penalties for below-cost sales. | ||||||
22 | (a) If a retailer is selling motor fuel in a given market | ||||||
23 | area below the regulated minimum retail cost price of motor | ||||||
24 | fuel sold for another retailer in the same market, the | ||||||
25 | complaining retailer may file a complaint with the Department | ||||||
26 | of Revenue. The complaint shall include, at minimum, the name, | ||||||
27 | contact person, address and telephone number of the complaining | ||||||
28 | retailer, and the name, address and telephone number of the | ||||||
29 | competing retailer (also referred to as "alleged violator"), | ||||||
30 | the name and address of each retail location subject to the | ||||||
31 | complaint, the pricing at each such location on the applicable | ||||||
32 | dates, the regulated minimum price of the complaining retailer | ||||||
33 | for each applicable date, with documentation supporting the | ||||||
34 | complaining retailer's computed regulated minimum price for | ||||||
35 | each such date. Within 30 days after receipt of the complaint, |
| |||||||
| |||||||
1 | the Department shall give written notice of the complaint to | ||||||
2 | the alleged violator. Such notice shall include a copy of the | ||||||
3 | complaint and all documentation filed. The alleged violator | ||||||
4 | shall have 60 days from the date of the notice to respond to | ||||||
5 | the Department with evidence that the alleged violator, for any | ||||||
6 | and all periods of time subject to the complaint, and for any | ||||||
7 | and all periods of time following the last date named in the | ||||||
8 | complaint to the date of the notice, was not selling below its | ||||||
9 | regulated minimum price, or that any sale below the regulated | ||||||
10 | minimum price meets one of the exceptions of Section 20(a) | ||||||
11 | through (f). The Department shall have 90 days from the date of | ||||||
12 | the Department's receipt of the alleged violator's response to | ||||||
13 | provide to the complainant and to the alleged violator written | ||||||
14 | findings of: (i) whether the complaining retailer has made a | ||||||
15 | prima facie showing in its complaint that the alleged violator | ||||||
16 | sold below the complaining retailer's regulated minimum price, | ||||||
17 | and, if such prima facie showing is made, then (ii), whether | ||||||
18 | the alleged violator has proven in its response, by a | ||||||
19 | preponderance of the evidence, that it did not sell below its | ||||||
20 | regulated minimum price, or that it meets one of the Section 20 | ||||||
21 | exceptions. | ||||||
22 | (b) If the Department finds: (i) that the complainant has | ||||||
23 | failed to make a prima facie showing under subsection (a), (ii) | ||||||
24 | that the alleged violator has proven either a Section 20 | ||||||
25 | exception, or (iii) that it did not sell below its regulated | ||||||
26 | minimum price, the complaint shall be closed. If the Department | ||||||
27 | finds that the complainant has made the required prima facie | ||||||
28 | showing and that the alleged violator has neither rebutted that | ||||||
29 | showing nor proven a Section 20 exception, the alleged violator | ||||||
30 | shall be given the opportunity to provide full disclosure and | ||||||
31 | cost-accounting documentation that it did not sell below cost. | ||||||
32 | Certified by either a certified managerial accountant or | ||||||
33 | certified public accountant hired by the alleged violator, the | ||||||
34 | alleged violator shall file such documentation with the | ||||||
35 | Department within ninety 90 days after the date of the | ||||||
36 | Department's written findings under subsection (a), and shall, |
| |||||||
| |||||||
1 | on the same day, serve the complainant with a copy. The | ||||||
2 | Department shall then have a period of 180 days in which to | ||||||
3 | review the data provided by the alleged violator, during which | ||||||
4 | time the Department may, at its option, submit the matter to | ||||||
5 | the Motor Fuel Cost Review Board for advisory comment. At any | ||||||
6 | time during this 180-day period, the Department may request | ||||||
7 | further data and clarification from the alleged violator, and | ||||||
8 | the alleged violator shall have a period of 60 days after each | ||||||
9 | additional request in which to respond with service of a copy | ||||||
10 | of each additional response upon the complainant. After the | ||||||
11 | final response, the Department shall have an additional period | ||||||
12 | of 180 days in which to review the supplemental data. If the | ||||||
13 | Department finds that the documentation provided by the alleged | ||||||
14 | violator proves by a preponderance of the evidence that it did | ||||||
15 | not sell below cost, then the complaint shall be closed. If the | ||||||
16 | Department shall find otherwise, or if the alleged violator | ||||||
17 | shall fail to provide data and documentation to support that it | ||||||
18 | did not sell below cost, the Department shall conclude that the | ||||||
19 | alleged violator violated this Act. The Department shall | ||||||
20 | promptly provide written notice to the alleged violator and the | ||||||
21 | complainant of the Department's conclusion, and fine the | ||||||
22 | violator in accordance with this Act. | ||||||
23 | (c) If the alleged violator fails or refuses to respond in | ||||||
24 | a timely manner to the requests of the Department or fails to | ||||||
25 | pay fines to the Department within 30 days after notice of the | ||||||
26 | imposition of a fine, the Department shall refer the matter to | ||||||
27 | the Office of the Illinois Attorney General for prosecution. | ||||||
28 | Upon receipt of such referral, the Office of the Illinois | ||||||
29 | Attorney General, or at its discretion, the State's Attorney | ||||||
30 | for the county in which the alleged below-cost sale occurred, | ||||||
31 | shall commence a civil action to enforce the findings of and | ||||||
32 | fines imposed by the Department. While the civil action is | ||||||
33 | pending, the Attorney General or the State's Attorney shall | ||||||
34 | seek to enjoin the violator from below cost pricing, and upon a | ||||||
35 | proper showing, a temporary restraining order, preliminary | ||||||
36 | injunction, or permanent injunction shall be issued without the |
| |||||||
| |||||||
1 | necessity of a bond. | ||||||
2 | (d) Any person who has been found by the Department to have | ||||||
3 | committed a violation of below-cost selling under this Act | ||||||
4 | shall be listed as a "below cost seller" by the Department. If | ||||||
5 | such person is found to have committed another act of below | ||||||
6 | cost selling within 18 months after the date of the first act | ||||||
7 | of below-cost selling, the Department shall fine the violator a | ||||||
8 | sum not to exceed $5,000 per violation, unless a violation was | ||||||
9 | determined accidental, in which case the civil penalty shall | ||||||
10 | not exceed $2,500. The violator shall also be liable for | ||||||
11 | accountant's fees, expert witness fees, and investigative | ||||||
12 | expenses incurred by the Department, and shall be subject to | ||||||
13 | injunctive relief. Each day that a violation of below-cost | ||||||
14 | selling under this Act occurs is considered a separate | ||||||
15 | violation. If an action is brought by a State's Attorney, the | ||||||
16 | entire amount of the fine shall be paid to the treasury of the | ||||||
17 | county in which the judgment was entered. If such action is | ||||||
18 | brought by the Attorney General, one-half of the penalty shall | ||||||
19 | be paid to the treasury of the county where the action was | ||||||
20 | brought and one-half shall be paid to the State Treasury, | ||||||
21 | earmarked for the Attorney General's State Project and Court | ||||||
22 | Order Distribution Fund. Fines paid to the Department without | ||||||
23 | involvement of the Attorney General shall go to the General | ||||||
24 | Revenue Fund. | ||||||
25 | (e) Any person in competition with a person suspected of | ||||||
26 | below cost selling or threatening to sell below cost under this | ||||||
27 | Act may file and maintain an action in any court of competent | ||||||
28 | jurisdiction to prevent, restrain, or enjoin such violation or | ||||||
29 | threatened violation and recover damages for the violation or | ||||||
30 | threatened violation, whether or not such person has filed a | ||||||
31 | complaint under subsection (a) of Section 35 of this Act and | ||||||
32 | whether or not an action is pending under subsection (c) of | ||||||
33 | Section 35 of this Act. Upon proper application by the | ||||||
34 | plaintiff in any action under subsection (e) of Section 35, the | ||||||
35 | court shall grant preliminary injunctive relief if the | ||||||
36 | plaintiff shows that he or she is a proper person to seek the |
| |||||||
| |||||||
1 | relief requested and that the defendant is selling motor fuel | ||||||
2 | below the plaintiff's regulated minimum price for the time in | ||||||
3 | question.
In such action, there shall be a rebuttable | ||||||
4 | presumption that the defendant has violated this Act if the | ||||||
5 | plaintiff can show that, on a given day, the defendant sold or | ||||||
6 | offered for sale, motor fuel at a price below the plaintiff's | ||||||
7 | regulated minimum price. The defendant may rebut such | ||||||
8 | presumption by proving by a preponderance of the evidence that: | ||||||
9 | (i) the plaintiff's calculation of the regulated minimum price | ||||||
10 | was inaccurate and the defendant did not in fact sell below the | ||||||
11 | actual regulated minimum price; (ii) that the defendant | ||||||
12 | qualifies for one of the exceptions under Section 20; or (iii) | ||||||
13 | that the defendant did not in fact sell or offer for sale motor | ||||||
14 | fuel below cost. If the plaintiff proves a prima facie | ||||||
15 | violation of this Act, and the defendant does not rebut such | ||||||
16 | proof, the court shall enjoin and restrain, or otherwise | ||||||
17 | prohibit, such violation or threatened violation and, in | ||||||
18 | addition, the court shall assess in favor of the plaintiff and | ||||||
19 | against the defendant the costs of the lawsuit, including | ||||||
20 | reasonable attorney's fees. It shall not be necessary that | ||||||
21 | actual damages to the plaintiff be alleged or proved, but if | ||||||
22 | damages are alleged and proved, the plaintiff shall also be | ||||||
23 | entitled to actual damages, exemplary or punitive damages, and | ||||||
24 | restitution. If the plaintiff fails to make a prima facie | ||||||
25 | showing that the defendant sold motor fuel below the | ||||||
26 | plaintiff's regulated minimum price, or if the defendant proves | ||||||
27 | that the plaintiff's calculation of plaintiff's regulated | ||||||
28 | minimum price was inaccurate, the court may award court costs | ||||||
29 | and reasonable attorney's fees to the defendant. | ||||||
30 | (f) The circuit courts of this State are empowered with | ||||||
31 | jurisdiction to hear and determine all cases brought under this | ||||||
32 | Section. Venue lies in the county in which the alleged | ||||||
33 | violation occurred. | ||||||
34 | (g) If any action is brought for a violation of a | ||||||
35 | below-cost sale, the burden of proof, upon a prima facie | ||||||
36 | showing of a violation, shall shift to the defendant to show |
| |||||||
| |||||||
1 | justification. A prima facie showing of a violation shall be | ||||||
2 | made if the plaintiff shows that the retail price of motor fuel | ||||||
3 | of the defendant-retailer was below the regulated minimum | ||||||
4 | retail cost price of motor fuel sold of the plaintiff retailer. | ||||||
5 | Unless justification is shown by the defendant by a | ||||||
6 | preponderance of the evidence, the court shall award judgment | ||||||
7 | to the plaintiff. | ||||||
8 | Section 40. Remedies and penalties for price gouging. | ||||||
9 | (a) Complaints of price gouging shall be made to the | ||||||
10 | Department of Revenue, specifying the name and address of each | ||||||
11 | retail location subject to the complaint, and the pricing at | ||||||
12 | each location on applicable dates that the violations are | ||||||
13 | alleged to have occurred. Within 30 days of receipt of the | ||||||
14 | complaint, the Department shall make contact with the alleged | ||||||
15 | violator, and the alleged violator shall have 60 days after | ||||||
16 | receipt of notice in which to provide evidence that for any and | ||||||
17 | all periods of time subject to the complaint, and for any and | ||||||
18 | all periods of time from the date of the last violation alleged | ||||||
19 | in the complaint to the date of the notice, the alleged | ||||||
20 | violator was not price gouging. Upon a prima facie showing that | ||||||
21 | the alleged violator sold or offered for sale motor fuel at a | ||||||
22 | price above the regulated maximum price on the date in | ||||||
23 | question, the alleged violator shall have the burden to prove, | ||||||
24 | by a preponderance of the evidence that he or she did not | ||||||
25 | engage in price gouging. If the alleged violator can show, by a | ||||||
26 | preponderance of the evidence, that he or she did not engage in | ||||||
27 | price gouging, the complaint shall be closed. If the Department | ||||||
28 | shall find that the alleged violator did not prove that he or | ||||||
29 | she did not engage in price gouging for each day subject to the | ||||||
30 | complaint, the alleged violator shall be given the opportunity | ||||||
31 | to provide full disclosure and cost-accounting documentation, | ||||||
32 | certified by either a certified managerial accountant or | ||||||
33 | certified public accountant hired by the alleged violator, that | ||||||
34 | it did not engage in price gouging. The Department shall then | ||||||
35 | have a period of 180 days in which to review the data provided |
| |||||||
| |||||||
1 | by the alleged violator, during which time, the Department may, | ||||||
2 | at its option, submit the matter to the Motor Fuel Cost Review | ||||||
3 | Board, for advisory comment. At any time during this 180-day | ||||||
4 | period, the Department may request further data and | ||||||
5 | clarification from the alleged violator, and the alleged | ||||||
6 | violator shall have a period of 60 days, after each such | ||||||
7 | request, in which to respond. After receipt of the final | ||||||
8 | response, the Department shall have an additional period of 180 | ||||||
9 | days in which to review the supplemental data. If the | ||||||
10 | Department finds that the documentation provided by the alleged | ||||||
11 | violator proves by a preponderance of the evidence that he or | ||||||
12 | she did not engage in price gouging, then the complaint shall | ||||||
13 | be closed. If the Department shall find otherwise, or if the | ||||||
14 | alleged violator shall fail to provide data and documentation | ||||||
15 | to support that he or she did not engage in price gouging, the | ||||||
16 | Department shall conclude that the alleged violator violated | ||||||
17 | this Act. The Department shall then notify the alleged violator | ||||||
18 | of the Department's conclusion, and fine the violator in | ||||||
19 | accordance with this Act. | ||||||
20 | (b) If the alleged violator fails or refuses to respond in | ||||||
21 | a timely manner to the requests of the Department or fails to | ||||||
22 | pay fines to the Department within 30 days after notice of the | ||||||
23 | imposition of the fine, the Department shall refer the matter | ||||||
24 | to the Attorney General for prosecution. Upon receipt of such | ||||||
25 | referral, the Attorney General, or at its discretion, the | ||||||
26 | State's Attorney of the county in which the violation occurred, | ||||||
27 | shall commence a civil action to enforce the findings of and | ||||||
28 | fines imposed by the Department. While the civil action is | ||||||
29 | pending, the Attorney General shall seek to enjoin the violator | ||||||
30 | from price gouging, and upon a proper showing, a temporary | ||||||
31 | restraining order, preliminary injunction, or permanent | ||||||
32 | injunction shall be issued without the necessity of a bond. | ||||||
33 | (c) Any person who is found to have committed a violation | ||||||
34 | of price gouging, as defined by this Act, shall be subject to a | ||||||
35 | civil penalty not to exceed $5,000 per violation for each | ||||||
36 | offense. Any such violator shall also be liable for the fees of |
| |||||||
| |||||||
1 | accountants, expert witness fees, and investigative expenses, | ||||||
2 | incurred by the State, if the State prevails in an action under | ||||||
3 | this Act. Each day that a violation of price gouging under this | ||||||
4 | Act occurs is considered a separate violation. If brought by a | ||||||
5 | State's Attorney, the entire amount of the fine shall be paid | ||||||
6 | to the treasury of the county in which the judgment was | ||||||
7 | entered. If brought by the Attorney General, one-half of the | ||||||
8 | penalty shall be paid to the treasury of the county where the | ||||||
9 | action was brought and one-half shall be paid to the State | ||||||
10 | Treasury, earmarked for the Attorney General's State Project | ||||||
11 | and Court Order Distribution Fund. Fines paid to the Department | ||||||
12 | without involvement of the Attorney General shall go to the | ||||||
13 | General Revenue Fund. | ||||||
14 | Section 45. Illegal contracts. Any contract, express or | ||||||
15 | implied, made by any person in violation of any of the | ||||||
16 | provisions of this Act is illegal and void, and recovery shall | ||||||
17 | not be awarded. | ||||||
18 | Section 50. Recordkeeping. | ||||||
19 | (a) Persons engaged in commerce within this State who sell | ||||||
20 | or offer to sell motor fuel shall maintain records accurately | ||||||
21 | indicating the date and the time of day of each change in the | ||||||
22 | sale price of motor fuel and the identity of the person who | ||||||
23 | recorded the price change. In the event the change in price is | ||||||
24 | to meet a lower price of a competitor, the record shall set | ||||||
25 | forth the competitor's name and address, specifying the price | ||||||
26 | which was met. These records shall be maintained for a period | ||||||
27 | of 3 years. | ||||||
28 | (b) The records shall be made available to the Department | ||||||
29 | of Revenue and Attorney General on request. | ||||||
30 | Section 55. Witnesses; production of books and records. Any | ||||||
31 | defendant, or any witness, in any civil action brought under | ||||||
32 | the provisions of this Act may be required to testify, and any | ||||||
33 | defendant, or any witness, may, upon proper process, be |
| |||||||
| |||||||
1 | compelled to produce his books, records, invoices, and all | ||||||
2 | other documents of any such defendant or witness into court and | ||||||
3 | the same may be introduced as evidence, but no testimony given | ||||||
4 | or produced shall be received against such defendant upon any | ||||||
5 | criminal proceeding or investigation against the defendant. | ||||||
6 | Section 60. Trade association may file suit. Any duly | ||||||
7 | organized and existing trade association, whether incorporated | ||||||
8 | or not, is authorized to institute and prosecute a suit or | ||||||
9 | suits for injunctive relief and costs provided for under the | ||||||
10 | terms of this Act, as the real party in interest for and on | ||||||
11 | behalf of one or more of the association's members, when a | ||||||
12 | violation of this Act directly or indirectly affects or | ||||||
13 | threatens to affect or injure such member or members, or where | ||||||
14 | violation of this Act threatens to impair fair competition or | ||||||
15 | otherwise affects the member. | ||||||
16 | Section 65. Limitations period. Any action brought by the | ||||||
17 | Attorney General or any State's Attorney shall be brought | ||||||
18 | within 2 years after the alleged violation occurred or should | ||||||
19 | reasonably have been discovered. Any action brought by any | ||||||
20 | other person or entity shall be brought within 3 years after | ||||||
21 | the alleged violation occurred or should reasonably have been | ||||||
22 | discovered. | ||||||
23 | Section 70. Powers and duties. | ||||||
24 | (a) The Department of Revenue has the following powers and | ||||||
25 | duties: | ||||||
26 | (1) to investigate complaints regarding violations of | ||||||
27 | this Act; | ||||||
28 | (2) to seek injunctive relief as appropriate; | ||||||
29 | (3) to levy fines for a violation of this Act; | ||||||
30 | (4) to determine what rates of compensation are usual | ||||||
31 | and customary for certified managerial or cost accountants | ||||||
32 | practicing in the State, and to set the hourly fee of the | ||||||
33 | managerial or cost-accountant serving on the Motor Fuel |
| |||||||
| |||||||
1 | Cost Review Board. | ||||||
2 | (b) The Attorney General has the following powers and | ||||||
3 | duties: | ||||||
4 | (1) to investigate complaints regarding violations of | ||||||
5 | this Act; | ||||||
6 | (2) to seek injunctive relief as appropriate; | ||||||
7 | (3) to seek restitution for victims of motor fuel price | ||||||
8 | gouging and other violations of this Act; | ||||||
9 | (4) to institute an action to collect a civil penalty | ||||||
10 | for a violation of this Act; and | ||||||
11 | (5) to delegate to any appropriate State's Attorney its | ||||||
12 | powers and duties. | ||||||
13 | Section 75. Confidentiality. | ||||||
14 | (a) Information obtained by the Department, Attorney | ||||||
15 | General, or State's Attorney in the course of an investigation | ||||||
16 | under this Act, including information from a person who | ||||||
17 | responds to the investigation and designates the information as | ||||||
18 | confidential, must be maintained as confidential until the | ||||||
19 | investigation is completed and a course of action is | ||||||
20 | determined. Neither the Department, Attorney General, or | ||||||
21 | State's Attorney may make known in any manner information | ||||||
22 | obtained in the course of the investigation to persons other | ||||||
23 | that those specified in subsection (c) of this Section or the | ||||||
24 | members of the Motor Fuel Cost Review Board. Once the | ||||||
25 | investigation is completed, if there is a settlement or if a | ||||||
26 | civil action is filed, the information may be made public. | ||||||
27 | (b) This Section does not prohibit the use of confidential | ||||||
28 | information to prepare statistics of other general data for | ||||||
29 | publication, if the information is presented in a manner that | ||||||
30 | prevents identification of particular persons or locations | ||||||
31 | under investigation. | ||||||
32 | (c) For purposes of this Section, references to the | ||||||
33 | Department, Attorney General, or State's Attorney include | ||||||
34 | other individuals designated to write and act on their behalf | ||||||
35 | during an investigation. A person designated shall preserve the |
| |||||||
| |||||||
1 | confidentiality of information as provided for in subsection | ||||||
2 | (a). | ||||||
3 | (d) A person who is served with a request for information, | ||||||
4 | a subpoena to give testimony orally or in writing, or to | ||||||
5 | produce books, papers, correspondence, memoranda, agreements, | ||||||
6 | or other documents or records under this Act may apply to the | ||||||
7 | appropriate circuit court for protection against abuse or undue | ||||||
8 | hardship. | ||||||
9 | Section 80. Banning of government subsidies for motor fuel | ||||||
10 | marketers. | ||||||
11 | (a) It is the policy of this State that no development | ||||||
12 | containing a facility for selling motor fuel shall receive any | ||||||
13 | government subsidy, State or local, to aid in the cost of | ||||||
14 | development, when the motor fuel facility being developed would | ||||||
15 | be in competition with another Illinois-based facility within | ||||||
16 | the same market area. | ||||||
17 | (b) For any facility that has been built with any | ||||||
18 | government subsidy, before a motor fuel facility shall be added | ||||||
19 | to, about, or in affiliation with such facility, all government | ||||||
20 | subsidies received before, shall be paid back to each | ||||||
21 | governmental body providing such subsidy. | ||||||
22 | (c) Any competitor of a person suspected of receiving a | ||||||
23 | government subsidy in violation of this Act shall have standing | ||||||
24 | to prosecute a civil action to enjoin a violation of this | ||||||
25 | Section and to compel restitution of any such subsidy received | ||||||
26 | or government monies foregone in violation of this Section. | ||||||
27 | Section 85. Severability. If any provision of this Act or | ||||||
28 | its application to any person or circumstance is held invalid, | ||||||
29 | the invalidity of that provision or application does not affect | ||||||
30 | other provisions or applications of this Act that can be given | ||||||
31 | effect without the invalid provision or application. | ||||||
32 | Section 90. Rulemaking authority and duty to inform. The | ||||||
33 | Department of Revenue may issue rules to administer and enforce |
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1 | this Act. The Department shall also have the duty to inform | ||||||
2 | motor fuel marketers of this Act, including the requirements to | ||||||
3 | not sell below cost and to not engage in price gouging, though | ||||||
4 | failure to receive such notice shall not be a defense under | ||||||
5 | this Act. This duty shall be performed by the following: (1) | ||||||
6 | between the time that the Act is signed into law and its | ||||||
7 | effective date, the Department of Revenue shall issue written | ||||||
8 | notification to all persons who are currently filing motor fuel | ||||||
9 | tax returns, as well as all persons listed on prepaid sales tax | ||||||
10 | forms as being retailers from whom prepaid sales taxes have | ||||||
11 | been collected on motor fuels, informing them of this Act, and | ||||||
12 | the requirements to not sell below cost and to not engage in | ||||||
13 | price gouging as defined in this Act, (2) within one year of | ||||||
14 | the effective date of this Act, the Department shall have | ||||||
15 | revised and issued forms requiring filers of motor fuel tax | ||||||
16 | returns to certify their awareness of the Motor Fuel Fair | ||||||
17 | Marketing Practices Act, including the requirements to not sell | ||||||
18 | below cost and to not engage in price gouging, and (3) at the | ||||||
19 | time that new motor fuel licenses are issued, the Department | ||||||
20 | shall include a notice of the existence of this Act, such | ||||||
21 | notice including the requirements to not sell below cost and to | ||||||
22 | not engage in price gouging. | ||||||
23 | Section 95. Appropriations. The Department of Revenue and | ||||||
24 | Office of the Illinois Attorney General shall request, and the | ||||||
25 | General Assembly shall reasonably fund from the General Revenue | ||||||
26 | Fund, by way of appropriations, the costs and expenses | ||||||
27 | necessary to comply with this Act.
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