PKR-18-11-00011-P Consumption of Alcoholic Beverages at State Parks and Historic Sites

5/4/11 N.Y. St. Reg. PKR-18-11-00011-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 18

May 04, 2011

RULE MAKING ACTIVITIES

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PKR-18-11-00011-P

Consumption of Alcoholic Beverages at State Parks and Historic Sites

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of sections 397.7, 398.6, 399.7, 400.5, 401.5, 402.5, 415.2, 416.6, 417.6, 418.2; amendment of sections 398.7, 398.8, 400.6, 410.1, 415.3 through 415.7, 418.3, 418.4; and addition of Part 385 to Title 9 NYCRR.

Statutory authority:

Parks, Recreation and Historic Preservation Law, section 3.09(5) and (8)

Subject:

Consumption of alcoholic beverages at state parks and historic sites.

Purpose:

To update and standardize statewide the rule on consumption of alcoholic beverages at state parks and historic sites.

Text of proposed rule:

Title 9 NYCRR Sections 397.7, 399.7, 401.5, 402.5, 416.6, 417.6 are repealed; Section 398.6 is repealed and Sections 398.7 and 398.8 are renumbered 398.6 and 398.7; Section 400.5 is repealed and Section 400.6 is renumbered 400.5; subdivision (n) of Section 410.1 is repealed and subdivisions (o) and (p) are renumbered (n) and (o); Section 415.2 is repealed and Sections 415.3 to 415.7 are renumbered 415.2 to 415.6; Section 418.2 is repealed and Sections 418.3 and 418.4 are renumbered 418.2 and 418.3; and a new Part 385 is added to Subchapter A as follows:

Subchapter A - Part 385. Alcoholic beverages.

(a) Prohibition. It is prohibited for any person to consume, possess with intent to consume, transport in an open container or sell any alcoholic beverage on property under the jurisdiction of the office.

(b) Exceptions. The prohibition in subdivision (a) shall not apply to an alcoholic beverage:

(1) sold by or purchased from a concessionaire or a lessee under the terms and conditions of a concession license, lease, or permit issued by the office, provided that the alcoholic beverage is consumed in the area delineated in the agreement;

(2) consumed or possessed by an individual or member of a group pursuant to terms and conditions of a standard permit issued by the office after receipt of an application; or

(3) consumed or possessed within an area of a state park, historic site, or other property that the commissioner has designated as exempt from the requirement for a standard permit under paragraph 2 of this subdivision. The designations may be limited to specific temporary periods of time. The exception in this paragraph does not extend to an alcoholic beverage in a container that holds more than one gallon. The commissioner shall approve a statewide list of the designated areas and update it at least annually. The list shall be published on the office's public website. Notice of the designated areas shall be posted in the appropriate regional, park and historic site offices and entrances.

(4) Upon recommendation of the director of law enforcement or a regional director and when necessary to protect public health, safety and welfare during any special event or incident on property under the office's jurisdiction, the commissioner may temporarily suspend any of the exceptions listed in this subdivision and shall provide public notice of the suspension by appropriate signage.

(c) Minimum age. It is prohibited for any person under the age of twenty one years to possess, possess with intent to consume, consume, or transport in an open container any alcoholic beverage on property under the jurisdiction of the office. No person shall provide, sell to, give, or otherwise transfer an alcoholic beverage to a person under the age of twenty one.

(d) Enforcement. (1) On property under the office's jurisdiction a police officer or peace officer, as defined in section 1.20 of the criminal procedure law, may confiscate an alcoholic beverage from any person if the alcoholic beverage is not authorized under this part to be possessed, possessed with intent to consume, consumed, transported in an open container or sold. Any alcoholic beverage confiscated shall be deemed a nuisance and shall be disposed of in accordance with the established procedures of the law enforcement agency that confiscates it.

(2) Failure to comply with this Part may result in revocation of any standard permit issued under paragraph 2 of subdivision b of this section.

(3) Failure to comply with this Part is also a violation under Section 27.11 of the parks, recreation and historic preservation law and Sections 10.00(3) and 80.05(4) of the penal law, and a petty offense under Section 1.20(39) of the criminal procedure law. The uniform ticket issued to a violator is adjudicated in the local court that has jurisdiction over the geographic area where the state park, historic site or other OPRHP property is located. Upon conviction the local court may impose a sentence of up to 15 days in jail or a fine of up to $250 and payment of any additional local surcharge required by Section 27.12 of the parks, recreation and historic preservation law.

(e) Severability. If a court of competent jurisdiction determines that any provision of this Part or its application to any person or circumstance is contrary to law that determination shall not affect or impair the validity of the other provisions of this Part or the application to other persons and circumstances.

Text of proposed rule and any required statements and analyses may be obtained from:

Kathleen L. Martens, Associate Counsel, Office of Parks, Recreation and Historic Preservation, Empire State Plaza, Agency Building 1, Albany, NY 12238, [phone], email: [e-mail]

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

This Regulatory Impact Statement (RIS) describes and analyzes the Office of Parks, Recreation and Historic Preservation's (OPRHP) housekeeping rulemaking proposal to update its old and varied regional regulations and adopt a uniform statewide regulation governing consumption of alcoholic beverages in state parks and historic sites under the agency's jurisdiction.

Statutory authority: Subdivisions 5 and 8 of section 3.09 of the Parks, Recreation and Historic Preservation Law require OPRHP to provide for the health, safety and welfare of the public through regulation.

Legislative objectives: By updating archaic rules that presently restrict and control consumption of alcoholic beverages through adoption of a uniform statewide prohibition with exceptions, the quality of life and health, safety, and well being of visitors and employees at OPRHP's facilities will be enhanced in furtherance of the agency's statutory mission and the general public will be better protected. Excessive alcohol intoxication and binge and underage drinking are underlying causes of a majority of the public disturbances and incidents requiring the intervention of the Park Police at OPRHP's facilities.

Needs and benefits: OPRHP was created in 1970; prior to that time the State Park System was administered by eleven independent Regional Parks Commissions. As a result of this history, there are varying alcoholic beverage regulations in each of OPRHP's eleven parks regions. The existing regional regulations generally either prohibit consumption of alcoholic beverages except under limited circumstances or permit it with extensive conditions. Inconsistencies among regional regulations create confusion for the public and undermine law enforcement capability. Moreover, many of the regional regulations contain conflicting or overlapping provisions.

OPRHP is reviewing its older regulations in an effort to streamline services and consolidate and modernize enforcement capability as it continues to grapple with budget constraints. The proposed statewide rule would replace the eleven varied and outdated regional regulations that presently control alcohol consumption. The goal is to preclude excessive alcohol consumption and binge and underage drinking so the health safety and welfare of patrons and visitors is protected and user conflicts are avoided. Support for the approach taken here comes from information provided by government public health sources.

The existing regional regulations for the most part do not adequately reflect changed social mores that now consider excessive consumption of alcohol, especially from binge and underage drinking as a major public health concern. The alcohol regulation that was amended most recently - albeit more than ten years ago in 1996 - is the Long Island regional rule. It contains a blanket prohibition on consumption with specific exceptions and provides a partial model for the proposed new uniform statewide rule. The exceptions in the proposal retain substantive concepts from the other regional rules but the language is clearer and more direct.

The Park Police indicate OPRHP's current alcohol regulations are outdated and difficult to understand and, consequently, they hinder effective law enforcement. Also, they are not comprehensive or flexible enough to address the diverse and large public events taking place today at state parks. For example, it has been twenty years since most of the regional regulations were adopted. Today, mass gatherings for concerts attended by thousands of people are held more frequently at state parks than they were in the 1980s. Unclear regional standards make enforcement at these gatherings more difficult for law enforcement.

In addition, in response to workforce reductions, the Park Police are increasingly deploying officers across the State from one region to another. A clear, concise statewide rule on alcohol consumption is required so enforcement capability is enhanced and not stymied by requiring the Park Police to understand and apply eleven different sets of rules. Also, OPRHP should begin transitioning all of its different regional rules into uniform statewide rules so the Park Police can eventually issue computer generated tickets for violations. Statewide rules are a prerequisite to employing this technology.

OPRHP's proposal repeals the eleven different regional regulations and replaces them with a single statewide regulation that prohibits the consumption of alcoholic beverages in state parks and historic sites, except under the following controlled situations:

• sales by concessionaires, lessees, or permittees;

• approvals for individuals or groups that receive a standard permit issued by the agency; and

• advance designation and public notice of specific areas where alcoholic beverages may be consumed without a standard permit (for example, the agency will designate certain campgrounds where alcoholic beverages may be consumed without the need for campers to secure a standard alcoholic beverage permit).

The proposed rule benefits the general public in many ways, including: limiting the operation of motor vehicles on state park roads and adjacent public highways by intoxicated individuals; protecting visitors, employees, and public and private property from the disorderly, disruptive, and antisocial behavior that can accompany uncontrolled consumption of alcoholic beverages; and fostering a relaxing and healthy recreational atmosphere that is appropriate to the unique settings under OPRHP's jurisdiction.

The regulation of alcoholic beverages within state parks and historic sites is not new. To the contrary, for many decades OPRHP has controlled excessive alcoholic beverage consumption at state parks. The purpose of this rule is to continue OPRHP's long-standing approach under a modernized and uniform statewide regulatory framework.

Costs: There are no additional costs to OPRHP or regulated entities from the proposed rule. Concession and license fees are negotiated individually and standard permit application fees will continue. Failure to comply with OPRHP's rules on alcohol consumption or other non-traffic infractions continues to be a violation that usually includes a fine up to $250 and may also require payment of a mandatory local surcharge. See, Parks, Recreation and Historic Preservation Law Sections 27.11 and 27.12; Penal Law Sections 10.00(3) and 80.05(4); see also, Criminal Procedure Law Section 1.20(39) definition of a "petty offense."

Local government mandates: The proposed rule does not affect local governments.

Paperwork: There is no additional reporting or paperwork requirements for the proposed rule.

Duplication: None.

Alternatives: OPRHP considered three different alternatives: a complete prohibition on alcohol consumption without exceptions; a complete repeal of the existing archaic regional rules without adopting a uniform statewide regulation; and leaving the existing outdated regulations in place. None of these alternatives would provide for the public health, safety and welfare for the majority of visitors to our facilities or assist law enforcement in controlling excessive consumption of alcohol or underage drinking. Therefore, OPRHP concluded instead that it is appropriate to allow the controlled public consumption of alcoholic beverages at our facilities through concession licenses, leases or permits; conditional approvals to individuals or groups that apply for standard permits; and advance designation of specific sites, dates or times where alcohol is allowed without a standard permit.

Federal standards: There are no federal standards affecting alcohol consumption within OPRHP facilities.

Compliance schedule: The rule can be complied with immediately upon adoption.

Regulatory Flexibility Analysis

This rule making repeals and updates the different rules in 9 NYCRR that regulate alcohol consumption in the various 11 state parks regions within the Office of Parks, Recreation and Historic Preservation. It would adopt one rule and exceptions at 9 NYCRR Part 385 that apply statewide. The repeal of outdated and inconsistent regulations and adoption of one statewide rule will not affect small businesses or local governments or recordkeeping requirements.

Rural Area Flexibility Analysis

This rule making repeals and updates the different rules in 9 NYCRR that regulate alcohol consumption in the various 11 state parks regions within the Office of Parks, Recreation and Historic Preservation. It would adopt one rule with exceptions at 9 NYCRR Part 385 that apply statewide. The repeal of outdated and inconsistent regulations and adoption of one statewide rule will not affect small businesses or local governments or recordkeeping requirements.

Job Impact Statement

The existing rules at 9 NYCRR that regulate consumption of alcoholic beverages in the state park regions do not affect jobs or employment opportunities and their repeal and addition of a new Part 385 that applies statewide would not affect jobs or employment opportunities.