PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 35 to Title 9 NYCRR.
Statutory authority:
Alcoholic Beverage Control Law, section 99(3)
Subject:
Application processes and review procedures relative to 24 hour permits issued to liquor licensees.
Purpose:
To establish application processes and review procedures relative to 24 hour permits issued to liquor licensees.
Text or summary was published
in the notice of proposed rule making, I.D. No. LQR-04-08-00006-P, Issue of January 23, 2008.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Paul S. Karamanol, Senior Attorney, State Liquor Authority, 80 S. Swan St., Suite 900, Albany, NY 12210, (518) 474-6750, e-mail: pkaramanol@abc.state.ny.us
Summary of Public Comment
The State Liquor Authority contacted the Empire State Restaurant & Tavern Association, the New York City Nightlife Association and the New York State Sheriff's Association for suggestions and/or alternatives regarding this proposed regulation. Those were the only organizations or civic interests of any sort that submitted comments regarding this regulatory initiative.
Analysis of Issues Raised/Alternatives Suggested
The New York State Sheriff's Association said that the proposed regulations seemed reasonable and helpful in enforcing all laws regarding the serving of alcoholic beverages. Additionally, the Sheriff's Association agrees that the minimal administrative burden placed on police forces by receiving and processing the required notification letters from applicants is outweighed by the benefit of ensuring law enforcement of advanced notice of any all-night event in their jurisdiction.
The Empire State Restaurant & Tavern Association (“ERSRTA”) said the following: “Overall our response is very positive. We commend the development of this proposed rule and the general guidelines included in the draft proposal.” The ESRTA did not agree, however, with the inclusion of pending disciplinary proceedings in the list of factors to be considered by the Authority in determining whether to issue the permit (part 35.4 (b) 1), stating that “Pending proceedings are merely allegations against a licensee that cannot on their face be considered a reason to decline a privilege to a licensee,” and suggesting that any pending proceedings ultimately considered be limited to those for which the recommended penalty based on the standard practices of the Authority would be license cancellation or revocation. The ESRTA also suggested that the provision authorizing one member of the Authority to make a final determination on a request for reconsideration (part 35.5 (d)), could be problematic, suggesting that the potential exists that different members of the Authority exercising their discretion under the proposal could develop different standards.
The New York City Nightlife Association (“NYCNA”) applauds the attempt to have written procedures and standards in the application process, but disagrees with the inclusion of pending disciplinary charges as one of the items to be considered by the Members of the Authority when determining whether to approve or disapprove an application. The NYCNA also objects to the inclusion of any record of convictions of disciplinary matters as well, stating that, “When an offer of settlement is made and accepted between Counsel and a licensee on a particular charge, let's say a civil penalty of xxx dollars, no one said, ‘this may also result in the denial of a New Year's permit.’ The penalty offer was considered and agreed to, that should be the end of it. Perhaps the licensee would not have settled if it knew that it could result in the denial of this permit.”
Reasons Why Suggested Alternatives Not Implemented
The State Liquor Authority could have taken no action, but chose to pursue the promulgation of the instant regulation in an effort to forestall issues experienced in past years as a result of the ad-hoc permit issuance process as well as complaints by several applicants of unfair or unequal treatment as a result of same.
The State Liquor Authority could have neglected to include past or pending disciplinary matters as a consideration of the suitability of any applicant pursuant to this part (part 35.4(b)1), preferring instead to analyze each such application in a vacuum and without regard to past experience with an applicant. The State Liquor Authority believes to do so would be an abrogation of its regulatory responsibilities under the Alcoholic Beverage Control Law and would undermine the intent of the instant proposal — ensuring only trustworthy and responsible business owners are hosting these all night events in New York State. Additionally, the Authority believes that failing to take into consideration pending disciplinary matters during this process would encourage applicants with pending disciplinary matters to delay, adjourn, discourage and otherwise frustrate administrative hearing processes, as many already do — for years in some cases — in order to preserve their ability to host large crowds of after hours revelers for holidays and special events.
