Provides for the revocation of a liquor license for cause upon a sixth incident reported to the authority of noise, disturbance, misconduct or disorder upon or related to the operation of the licensed premises.
TITLE OF BILL:
An act to amend the alcoholic beverage control law, in relation to the conditions precedent to revocation of a license for cause
This bill would establish a clear legal standard for determining when a licensed premise has become a focal point for police attention and thereby subject to possible revocation of the license.
SUMMARY OF PROVISIONS:
Section 1 of the bill would add a new subdivision 4 to Alcoholic Beverage Control (ABC) Law § 118 to create a rebuttable presumption that a licensed premises has become a focal point for police attention upon the occurrence of the sixth incident reported to the State Liquor Authority (SLA) of noise or disturbance on or about the licensed premises or relating to the conduct of its patrons in any 60 day period.
Section 2 of the bill would provide for an immediate effective date.
ABC Law § 118(3) currently establishes that a "sustained and continuing pattern of noise, disturbance, misconduct, or disorder on or about the licensed premises, related to the operation of the premises or the conduct of its patrons" is sufficient cause for revocation of a liquor license. However, since there is no cognizable or measureable standard set forth in current law to calculate the existence of a focal point for police attention, numerous State Liquor Authority (SLA) determinations revoking licenses that clearly operate as focal points for police attention have been successfully attacked via Article 78 proceedings.
Similar departmental legislation was introduced in 2008 as S.7372/A.11163.
STATEMENT IN SUPPORT:
ABC Law § 118 provides that the SLA may revoke, cancel or suspend a liquor license due to a "sustained and continuing pattern of noise, disturbance, misconduct or disorder" - i.e., the premises have become a "focal point" of police attention. However, courts have held that a determination that a licensed premise has become a "focal point" for police attention can be upheld only by an affirmative showing by the SLA that either the licensee or an employee vested with "managerial authority" was actually aware of the individual events and conditions that make up the basis for the focal point charge.
This is known as the "managerial exception" to the general rule that licensees are responsible for operating safe and healthy establishments free of any pattern of noise, disturbance, misconduct or disorder that would threaten public well being. Therefore, a bar that has been the site of multiple misconduct by patrons cannot be found to be a focal point unless it can be shown that the licensee suffered or permitted the conduct. By establishing a rebuttable presumption that a licensed premise is operating as a focal point for police attention after six incidents reported by police within any 60 day period, this initiative will eliminate the frequently misused managerial exception rule - which forces the SLA to prove that someone with managerial capacity had knowledge of each and every instance of police involvement before it can be held against the licensee in administrative disciplinary proceedings.
Enactment of this legislation will establish a reasonable threshold and legal presumption that liquor licensees and their managers have a duty to be aware of police units repeatedly responding to their businesses regarding violence, narcotics trafficking, prostitution, gambling, or other public nuisances and will enable the SLA to resume the fight against the proliferation of licensed establishments in the State acting outside of the law while regularly putting public health and safety at risk.
This bill would be effective immediately.
STATE OF NEW YORK ________________________________________________________________________ 7378--A IN SENATE April 5, 2010 ___________Introduced by Sen. SQUADRON -- (at request of the State Liquor Authori- ty) -- read twice and ordered printed, and when printed to be commit- ted to the Committee on Investigations and Government Operations -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the alcoholic beverage control law, in relation to the conditions precedent to revocation of a license for cause THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 118 of the alcoholic beverage control law is amended by adding a new subdivision 4 to read as follows: 4. AS USED IN THIS CHAPTER, THE EXISTENCE OF A SUSTAINED AND CONTINU- ING PATTERN OF NOISE, DISTURBANCE, MISCONDUCT, OR DISORDER ON OR ABOUT THE LICENSED PREMISES, RELATED TO THE OPERATION OF THE PREMISES OR THE CONDUCT OF ITS PATRONS, WILL BE PRESUMED UPON THE SIXTH INCIDENT REPORTED TO THE AUTHORITY BY A LAW ENFORCEMENT AGENCY OF NOISE OR DISTURBANCE OR MISCONDUCT OR DISORDER ON OR ABOUT THE LICENSED PREMISES OR RELATED TO THE OPERATION OF THE PREMISES OR THE CONDUCT OF ITS PATRONS, IN ANY SIXTY DAY PERIOD, ABSENT CLEAR AND CONVINCING EVIDENCE OF EITHER FRAUDULENT INTENT ON THE PART OF ANY COMPLAINANT OR A FACTUAL ERROR WITH RESPECT TO THE CONTENT OF ANY REPORT CONCERNING SUCH COMPLAINT RELIED UPON BY THE AUTHORITY. S 2. This act shall take effect immediately.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15975-06-0