PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 5328 to Title 9 NYCRR.
Statutory authority:
Racing, Pari-Mutuel Wagering and Breeding Law, sections 104(19), 1307(1), 1340(1), (5), (8) and (11)
Subject:
Casino alcoholic beverage licenses.
Purpose:
To regulate the presence and sale of alcoholic beverages on the premises of gaming facilities.
Text of proposed rule:
PART 5328
Alcoholic Beverages
§ 5328.1. Definitions.
Unless the context indicates otherwise, the following definitions apply throughout this Part. The definitions contained in Alcoholic Beverage Control Law, to the extent to which they are not in conflict with this Part, are fully incorporated into this Part by reference.
(a) Casino alcoholic beverage license means a license issued to a gaming facility licensee, or a licensed or registered vendor providing alcoholic beverages within a gaming facility, for the sale of alcoholic beverages at retail in accordance with Racing, Pari-Mutuel Wagering and Breeding Law section 1340 and this Part.
(b) Complimentary means without payment of money or other form of monetary-like consideration.
§ 5328.2. Casino alcoholic beverage license.
(a) A gaming facility licensee or casino vendor licensee or registrant applying for a casino alcoholic beverage license shall establish by clear and convincing evidence its good character, honesty and integrity, and provide such other financial information as may be required by the commission. Each casino vendor licensee or registrant that intends to purchase and select alcoholic beverage product and profit from the sale of such product at a gaming facility shall not do so unless and until duly licensed pursuant to this Part.
(b) A gaming facility licensee or casino vendor licensee or registrant intending to serve alcoholic beverages within a gaming facility shall file a casino alcoholic beverage license application the commission supplies and may amend from time to time, except that the commission may instead consider an application for facilities applying for a conversion of an existing alcoholic beverage license pursuant to subdivision (g) of this section.
(c) A gaming facility licensee or casino vendor licensee or registrant intending to serve alcoholic beverages at the commencement of operations of a gaming facility shall file its application at least 30 days prior to the projected date, except for an application for conversion of an existing alcoholic beverage license pursuant to subdivision (g) of this section, which the commission may accept at any time.
(d) Each casino alcoholic beverage licensee shall submit to the commission for review and approval any amendments to its casino alcoholic beverage license at least 30 days prior to the intended implementation of such amendment. The casino alcoholic beverage licensee may implement a proposed amendment on the 30th calendar day following the filing of such amendment with the commission, unless the commission provides notice pursuant to subdivision (e) of this section objecting to such amendment.
(e) If during the 30-day review period the commission determines that any amendment is inconsistent with the intent of this Part, the commission shall, by delivering written notice to the casino alcoholic beverage licensee, object to such amendment. Such objection notice shall:
(1) specify the nature of the objection and, when possible, an acceptable alternative; and
(2) direct that such amendment not be implemented.
(f) When the commission has objected to an amendment pursuant to subdivision (e) of this section, the casino alcoholic beverage licensee may submit a revised amendment for review within seven days of delivery of the commission’s objection, pursuant to subdivision (d) of this section.
(g) A gaming facility licensee holding an active alcoholic beverage license issued by the state liquor authority may file a request in writing to the commission for the conversion of such license to a casino alcoholic beverage license, as set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1340(11), along with a sworn statement detailing any violations or penalties imposed by the state liquor authority in regard to such existing license in the five-year period preceding the request.
(h) A casino alcoholic beverage applicant or licensee shall require each employee authorized to serve or deliver alcohol to complete an alcohol training and awareness program certified by the state liquor authority and submit to the commission such employee’s certificate of completion.
§ 5328.3. License determination.
(a) Upon receipt of a completed application for a casino alcoholic beverage license, the commission shall confirm that the gaming facility licensee or casino vendor licensee or registrant has met the requirements set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1340 and this Part.
(b) The commission, following consultation with the state liquor authority, or the designee of the state liquor authority, shall either:
(1) grant the application for a casino alcoholic beverage license, if the commission determines that doing so is in the best interests of gaming in this State; or
(2) deny the application for a casino alcoholic beverage license and notify the applicant of the reason or reasons for denial.
If the application is for conversion of an existing alcoholic beverage license and there are no state liquor authority violations or penalties in regard to the existing license, the commission shall grant the request for conversion of the license. If there are one or more state liquor authority violations or penalties in regard to the existing license, the commission shall consider whether granting the request for conversion of the license is in the best interests of gaming in this State. The commission may impose such conditions, restrictions, limitation or covenants upon a casino alcoholic beverage license, whether from a request for conversion of an existing license or otherwise, as the Commission may deem appropriate in its discretion to mitigate risk of violations, protect the public health safety or welfare, or serve the best interests of gaming in this State.
§ 5328.4. Review of license determination.
Within 30 days of the denial of a casino alcoholic beverage license, the applicant may submit a written request to the commission for a review of such determination. The commission or its designee shall confirm the denial or grant the application within 30 days of the request for review.
§ 5328.5. Form and posting of license.
(a) Following the grant of a casino alcoholic beverage license, the commission shall issue a license document that contains at a minimum:
(1) a complete identification of the applicant’s identity and address;
(2) any conditions; and
(3) the signature of the secretary of the commission.
(b) Each casino alcoholic beverage license shall at all times be displayed in a conspicuous place in the gaming facility where alcoholic beverages are sold or distributed so that all patrons visiting such licensed area may readily see such license.
(c) Each point of sale location approved under the casino alcoholic beverage license shall display a certificate issued by the commission for that point of sale location.
§ 5328.6. Duration.
A casino alcoholic beverage license shall expire two years from the date of issuance and shall be renewable thereafter for a period of no less than three years. An application to renew a casino alcoholic beverage license shall be submitted to the commission at least 30 days prior to the expiration of the license.
§ 5328.7. Restrictions and limitations.
(a) Any violation of the Alcoholic Beverage Control Law, the regulations and rulings promulgated by the state liquor authority, Racing, Pari-Mutuel Wagering and Breeding Law section 1340 or this Subdivision by a casino alcoholic beverage license or its agents or employees shall be grounds for suspension or revocation of a casino alcoholic beverage license or other disciplinary action, including, without limitation, monetary penalties following notice and an opportunity for a hearing.
(b) Pursuant to paragraph five of Racing, Pari-Mutuel Wagering and Breeding Law section 1340, the commission may from time to time by means of bulletins, special rulings or findings notify casino alcoholic beverage licensees of provisions of the alcoholic beverage control law and rules, regulations, bulletins, orders, and advisories promulgated by the state liquor authority that are inapplicable to gaming facilities or portions of gaming facilities.
(c) Pursuant to paragraph eight of Racing, Pari-Mutuel Wagering and Breeding Law section 1340, a gaming facility licensee holding a casino alcoholic beverage license may provide complimentary alcoholic beverages to a patron under the following conditions:
(1) there shall be no delivery of more than two drinks to one patron at a time, except that a bottle of wine may be served to one or more patrons;
(2) there shall be no sale or delivery to any patron an unlimited number of drinks during any set period of time for a fixed price (i.e. open bar), except at invitation-only private functions not open to the public;
(3) there shall be no game or contest that involves drinking alcoholic beverages or the awarding of alcoholic beverages as prizes; and
(4) there shall be no service of any alcoholic beverage to minors.
§ 5328.8. Special events.
A gaming facility licensee seeking to serve alcoholic beverages in an unlicensed area of the facility shall submit a Special Event Casino Alcoholic Beverage permit application, on a form the commission prescribes. The commission shall approve the application and issue the permit if the commission determines that the application contains all required information and issuance would not compromise the integrity of gaming or the public health, welfare or safety. The application shall be submitted to the commission at least 30 days prior to the proposed event and contain, at a minimum:
(a) name and description of the event;
(b) a description of the mapped location of the event;
(c) date, time and duration of the event;
(d) a copy of the advertisement, program and promotional material for the event;
(e) number of persons anticipated to attend the event;
(f) admission price to the event;
(g) type of alcoholic beverages to be served;
(h) security and staffing arrangements;
(i) the identity of any jointly responsible person, persons, sponsor or sponsors, including the contact information and casino vendor enterprise license or registration number or numbers issued in accordance with Part 5307 of this Subchapter; and
(j) the identities of the licensed employees for the special event area, including the license or registration numbers of such employees issued in accordance with Parts 5304 through 5306 of this Subchapter.
Text of proposed rule and any required statements and analyses may be obtained from:
Kristen Buckley, Acting Secretary, New York State Gaming Commission, One Broadway Center, 6th Floor, Schenectady, NY 12305, (518) 388-3407, email: gamingrules@gaming.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUTORY AUTHORITY: Racing, Pari-Mutuel Wagering and Breeding Law (“Racing Law”) section 104(19) grants authority to the Gaming Commission (“Commission”) to promulgate rules and regulations that it deems necessary to carry out its responsibilities. Racing Law section 1307(1) authorizes the Commission to adopt regulations that it deems necessary to protect the public interest in carrying out the provisions of Racing Law Article 13.
Racing Law section 1340(1) authorizes the Commission to grant any license or permit for alcoholic beverages in, on, or about the gaming facilities.
Racing Law section 1340(5) authorizes the Commission to establish regulations necessary for the proper enforcement, regulation, and control of alcoholic beverages in gaming facilities to accommodate for the uniqueness of the gaming facilities.
Racing Law section 1340(8) authorizes the Commission to establish regulations for facilities providing complimentary beverages.
Racing Law section 1340(11) authorizes the Commission to establish regulations for the conversion of an existing alcoholic beverage license into a casino alcoholic beverage license.
2. LEGISLATIVE OBJECTIVES: The above referenced statutory provisions carry out the legislature’s stated goal “to tightly and strictly” regulate casinos “to guarantee public confidence and trust in the credibility and integrity of all casino gambling in the state and to prevent organized crime from any involvement in the casino industry” as set forth in Racing Law section 1300(10).
3. NEEDS AND BENEFITS: The proposed rules implement the above listed statutory directives regarding the issuance and regulation of casino alcoholic beverage licenses. The rules provide specificity with respect to the above listed statutory directives to ensure the proper licensing and regulation of alcoholic beverages at a gaming facility. The rules provide the process of applying for a casino alcoholic beverage license, the standard of review for the license, the restrictions and limitations that may be placed on a license, and the duration of a casino alcoholic beverage license.
4. COSTS:
(a) Costs to the regulated parties for the implementation of and continuing compliance with these rules: The regulated parties will incur minimal costs associated with the filing of the application for a casino alcoholic beverage license. Additionally, the regulated parties may incur costs for the alcohol training awareness program required for each employee authorized to serve or deliver alcoholic beverages. An alcohol training and awareness program costs between twenty-five and thirty-five dollars per employee.
(b) Costs to the regulating agency, the State, and local governments for the implementation of and continued administration of the rule: These rules will impose costs to the Commission for the review and issuance of a casino alcoholic beverage license. Based upon the Commission’s experience in conducting hearings in lottery, video lottery gaming and horse racing, the Commission anticipates that the hearing costs associated with the proposed rules would be negligible. These rules will not impose any additional costs on local governments.
(c) The information, including the source or sources of such information, and methodology upon which the cost analysis is based: The costs associated with the alcoholic training and awareness programs are based upon the actual costs of the approved programs listed by the state liquor authority. All other cost estimates are based on the Commission’s experience regulating racing and gaming activities within the State.
5. LOCAL GOVERNMENT MANDATES: There are no local government mandates associated with these rules.
6. PAPERWORK: The rules impose paperwork burdens on gaming facility licensees and casino vendors or registrants intending to serve or sell alcoholic beverages upon the premises of the gaming facilities by requiring the submission of an application for a casino alcoholic beverage license.
7. DUPLICATION: These rules do not duplicate, overlap or conflict with any existing State or federal requirements.
8. ALTERNATIVES: The Commission consulted with the state liquor authority and reviewed other gambling jurisdiction best practices and regulations. Alternatives were discussed and considered with the state liquor authority and compared to other jurisdiction regulations. These included the documentation required to be provided to the Commission to apply for a casino alcoholic beverage license, the review of the license application by the Commission, and the types of restrictions or limitations the Commission may place on a license.
9. FEDERAL STANDARDS: There are no federal standards applicable to the licensing of gaming facilities in New York; it is purely a matter of New York State law.
10. COMPLIANCE SCHEDULE: The Commission anticipates that the affected parties will be able to achieve compliance with these rules upon adoption.
Regulatory Flexibility Analysis
1. EFFECT OF RULE: These rules provide for the issuance of casino alcoholic beverage licenses for the sale and service of alcoholic beverages upon the premises of gaming facilities. Small business casino vendor enterprises or vendor registrants intending to hold a casino alcoholic beverage license will be impacted by these rules. Local government will not be affected by these rules.
2. COMPLIANCE REQUIREMENTS: These rules require all casino vendor enterprises or registrants intending to serve or sell alcohol to apply for and obtain a casino alcoholic beverage license with the Commission.
3. PROFESSIONAL SERVICES: No new or additional professional services are required in order to comply with these rules.
4. COMPLIANCE COSTS: Casino vendor enterprises and registrants intending to serve or sell alcohol need to apply for a casino alcoholic beverage license with the Commission and may incur costs associated with the paperwork burden of filing the application. Additionally, all employees selling or delivering alcoholic beverages are required to complete a certified alcohol training and awareness program. These programs cost approximately twenty-five to thirty-five dollars per person.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY: These rules will not impose any technological costs on small businesses or local government.
6. MINIMIZING ADVERSE IMPACT: These rules do not impose adverse impacts on small businesses or local government.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION: Small businesses and host local governments will have the opportunity to participate in the rule making process during the public comment period which will commence when these rules are formally proposed.
Rural Area Flexibility Analysis and Job Impact Statement
These rules will not have any adverse impact on rural areas or jobs. These rules provide the process of applying for a casino alcoholic beverage license, the standard of review for the license, the restrictions and limitations that may be placed on a license, and the duration of a casino alcoholic beverage license.
These rules apply uniformly throughout the state and therefore do not have an adverse impact upon rural areas. These rules will have no adverse impact on job opportunities.
Accordingly, a full Rural Area Flexibility Analysis and Job Impact Statement are not required and have not been prepared.
