NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2064A
SPONSOR: Kavanagh TITLE OF BILL: An act to amend the alcoholic beverage control law, in
relation to making the provisions governing the various on-premises
liquor licenses consistent with respect to public interest factors that
may be considered by the state liquor authority when evaluating the
merits of a license application
PURPOSE:
This bill would make consistent the factors that may be considered by
the state Liquor Authority (SLA) when determining whether public conven-
ience and advantage, and the public interest will be promoted by the
granting of any of the on-premises liquor licenses provided for in Arti-
cle 5 of the Alcoholic Beverage control (ABC) Law.
SUMMARY OF PROVISIONS:
Sections 1 through 4 of the bill would amend ABC Law §§ 64(6-a), 64-a,
64-b and 64-c to establish a consistent standard with respect to the
factors that may be considered by the SLA when determining whether
public convenience and advantage, and the public interest will be
promoted by the grant of a specific on-premises liquor license to a
particular applicant.
Sections 5 through 8 adds that before issuing a license within five
hundred feet of three or more existing premises licenses, the SLA will
give due consideration of formal communication from the municipality or
community.
Section 9 of the bill would provide for an immediate effective date.
JUSTIFICATION:
Current ABC Law § 64(6-a) sets forth certain factors that the SLA can
consider when evaluating the merits of an application for an on-premises
restaurant liquor license. However, the ABC Law does not explicitly
state that such factors may be considered for on-premises liquor
licenses at taverns (§ 64-a), bottle clubs (§ 64-b), or restaurant-brew-
er (§ 64-c).
In 1993, Article 5 of the ABC Law provided for essentially three types
of on-premises liquor license: restaurant (§ 64), tavern (§ 64-a), and
bottle club (§ 65-b). An over-concentration of restaurant and tavern
licenses in mixed residential-commercial neighborhoods was found by the
Legislature to have a negative impact on the quality of life for resi-
dents in many of these areas of over concentration. The Legislature's
desire to protect residents from existing and potential problems associ-
ated with an over-concentration of restaurants and taverns prompted
enactment of Chapter 67.0 of the Laws of 1993, which gave the SLA the
permissive power to consider any or all of the following factors when
evaluating the merits of a new application for an on-premises liquor
license:
(a) the number, classes and character of licenses in proximity to the
location and in the particular municipality or subdivision thereof;
(b) evidence that all necessary licenses and permits have been obtained
from the state and all other governing bodies;
(c) effect of the grant of the license on vehicular traffic and parking
in proximity to the location;
(d) the existing noise level at the location and any increase in noise
level that would be generated by the proposed premises;
(e) the history of liquor violations and reported criminal activity at
the proposed premises; and (0 the history of building and fire
violations at any businesses owned and/or operated by the applicant;
(g) history of city of New York community Board Opinions and Decisions
made pursuant to the alcohol and beverage control law for businesses
owned and/or operated by the applicant; and
(h) any other factors specified by law or regulation that are relevant
to determine the "public convenience and advantage and public interest"
of the community.
This legislative grant of power had the effect of overruling the deci-
sion of the Court of Appeals in Matter of Circus Disco Ltd. v. New York
State Liquor Auth.,51 NY.2d 24 (1980), which held in part that under the
pre amendment statute, the adverse effect that a new on-premises liquor
establishment would have on vehicular traffic, parking, and noise levels
was beyond the purview of the SLA. The Court held that those consider-
ations appropriately reside within the exclusive discretion of local
zoning officials. In 2000, ABC Law § 64-d(7) was amended and requires
the SLA to consider all of the factors this bill would mandate when
determining whether public convenience and advantage and the public
interest would be promoted by the grant of a cabaret liquor license.
Amendment of ABC Law §§ 64 (restaurant), 64-a (tavern), 64-b (bottle
club), and 64-c (restaurant-brewer) - to more consistently parallel ABCL
§ 64-d (7), is desirable in order to make consistent all of the factors
that may be considered by the SLA when determining whether public
convenience and advantage and the public interest will be promoted by
the grant of a specific on-premises liquor license to a particular
applicant.
LEGISLATIVE HISTORY:
2012: A10736 (Kavanagh) - Economic Development
2010: A08519 (Schimminger) - Codes
2009: A08519 (Schimminger)- Passed Assembly
2008: A11162 (Schimminger)-Passed Assembly
FISCAL IMPLICATIONS:
None.
FISCAL IMPACT TO THE STATE:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
2064--A
2013-2014 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2013
___________
Introduced by M. of A. KAVANAGH -- read once and referred to the Commit-
tee on Economic Development -- recommitted to the Committee on Econom-
ic Development in accordance with Assembly Rule 3, sec. 2 -- reported
and referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the alcoholic beverage control law, in relation to
making the provisions governing the various on-premises liquor
licenses consistent with respect to public interest factors that may
be considered by the state liquor authority when evaluating the merits
of a license application
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 6-a of section 64 of the alcoholic beverage
2 control law, as added by chapter 670 of the laws of 1993, is amended to
3 read as follows:
4 6-a. The authority may consider [any or] all of the following in
5 determining whether public convenience and advantage and the public
6 interest will be promoted by the granting of licenses and permits for
7 the sale of alcoholic beverages at a particular unlicensed location:
8 (a) [The] the number, classes and character of licenses in proximity
9 to the location and in the particular municipality or subdivision there-
10 of[.];
11 (b) [Evidence] evidence that all necessary licenses and permits have
12 been obtained from the state and all other governing bodies[.];
13 (c) [Effect] effect of the grant of the license on vehicular traffic
14 and parking in proximity to the location[.];
15 (d) [The] the existing noise level at the location and any increase in
16 noise level that would be generated by the proposed premises[.];
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00155-04-4
A. 2064--A 2
1 (e) [The] the history of liquor violations and reported criminal
2 activity at the proposed premises[.];
3 (f) history of building and fire violations at any businesses owned
4 and/or operated by the applicant;
5 (g) history of formal communication from the municipality or community
6 board made pursuant to this chapter for businesses owned and/or operated
7 by the applicant; and
8 (h) [Any] any other factors specified by law or regulation that are
9 relevant to determine the public convenience and advantage [and public
10 interest of the community] and necessary to find that the granting of
11 such license shall be in the public interest.
12 § 2. Section 64-a of the alcoholic beverage control law is amended by
13 adding a new subdivision 6-a to read as follows:
14 6-a. The authority may consider all of the following in determining
15 whether public convenience and advantage and the public interest will be
16 promoted by the granting of licenses and permits for the sale of alco-
17 holic beverages at a particular unlicensed location:
18 (a) the number, classes and character of licenses in proximity to the
19 location and in the particular municipality or subdivision thereof;
20 (b) evidence that applicants have secured all necessary licenses and
21 permits from the state and all other governing bodies;
22 (c) the effect that the granting of the license will have on vehicular
23 traffic and parking in the proximity of the location;
24 (d) the existing noise level at the location and any increase in noise
25 level that would be generated by the proposed premises;
26 (e) the history of liquor violations and reported criminal activity at
27 the proposed premises;
28 (f) history of building and fire violations at any businesses owned
29 and/or operated by the applicant;
30 (g) history of formal communication from the municipality or community
31 board made pursuant to this chapter for businesses owned and/or operated
32 by the applicant; and
33 (h) any other factors specified by law or regulation that are relevant
34 to determine the public convenience or advantage and necessary to find
35 that the granting of such license shall be in the public interest.
36 § 3. Section 64-b of the alcoholic beverage control law is amended by
37 adding a new subdivision 4-a to read as follows:
38 4-a. The authority may consider all of the following in determining
39 whether public convenience and advantage and the public interest will be
40 promoted by the granting of licenses and permits for the sale of alco-
41 holic beverages at a particular unlicensed location:
42 (a) the number, classes and character of licenses in proximity to the
43 location and in the particular municipality or subdivision thereof;
44 (b) evidence that applicants have secured all necessary licenses and
45 permits from the state and all other governing bodies;
46 (c) the effect that the granting of the license will have on vehicular
47 traffic and parking in the proximity of the location;
48 (d) the existing noise level at the location and any increase in noise
49 level that would be generated by the proposed premises;
50 (e) the history of liquor violations and reported criminal activity at
51 the proposed premises;
52 (f) history of building and fire violations at any businesses owned
53 and/or operated by the applicant;
54 (g) history of formal communication from the municipality or community
55 board made pursuant to this chapter for businesses owned and/or operated
56 by the applicant; and
A. 2064--A 3
1 (h) any other factors specified by law or regulation that are relevant
2 to determine the public convenience or advantage and necessary to find
3 that the granting of such license shall be in the public interest.
4 § 4. Section 64-c of the alcoholic beverage control law is amended by
5 adding a new subdivision 10-a to read as follows:
6 10-a. The authority may consider all of the following in determining
7 whether public convenience and advantage and the public interest will be
8 promoted by the granting of licenses and permits for the sale of alco-
9 holic beverages at a particular unlicensed location:
10 (a) the number, classes and character of licenses in proximity to the
11 location and in the particular municipality or subdivision thereof;
12 (b) evidence that applicants have secured all necessary licenses and
13 permits from the state and all other governing bodies;
14 (c) the effect that the granting of the license will have on vehicular
15 traffic and parking in the proximity of the location;
16 (d) the existing noise level at the location and any increase in noise
17 level that would be generated by the proposed premises;
18 (e) the history of liquor violations and reported criminal activity at
19 the proposed premises;
20 (f) history of building and fire violations at any businesses owned
21 and/or operated by the applicant;
22 (g) history of formal communication from the municipality or community
23 board made pursuant to this chapter for businesses owned and/or operated
24 by the applicant; and
25 (h) any other factors specified by law or regulation that are relevant
26 to determine the public convenience or advantage and necessary to find
27 that the granting of such license shall be in the public interest.
28 § 5. Paragraph (f) of subdivision 7 of section 64 of the alcoholic
29 beverage control law, as amended by chapter 185 of the laws of 2012, is
30 amended to read as follows:
31 (f) Notwithstanding the provisions of paragraph (b) of this subdivi-
32 sion, the authority may issue a license pursuant to this section for a
33 premises which shall be within five hundred feet of three or more exist-
34 ing premises licensed and operating pursuant to this section and
35 sections sixty-four-a, sixty-four-b, sixty-four-c, and/or sixty-four-d
36 of this article if, after consultation with the municipality or communi-
37 ty board, and due consideration of formal communication from the munici-
38 pality or community board, it determines that granting such license
39 would be in the public interest. Before it may issue any such license,
40 the authority shall conduct a hearing, upon notice to the applicant and
41 the municipality or community board, and shall state and file in its
42 office its reasons therefor. The hearing may be rescheduled, adjourned
43 or continued, and the authority shall give notice to the applicant and
44 the municipality or community board of any such rescheduled, adjourned
45 or continued hearing. Before the authority issues any said license, the
46 authority or one or more of the commissioners thereof may, in addition
47 to the hearing required by this paragraph, also conduct a public meeting
48 regarding said license, upon notice to the applicant and the munici-
49 pality or community board. The public meeting may be rescheduled,
50 adjourned or continued, and the authority shall give notice to the
51 applicant and the municipality or community board of any such resched-
52 uled, adjourned or continued public meeting. Notice to the municipality
53 or community board shall mean written notice mailed by the authority to
54 such municipality or community board at least fifteen days in advance of
55 any hearing scheduled pursuant to this paragraph. Upon the request of
56 the authority, any municipality or community board may waive the fifteen
A. 2064--A 4
1 day notice requirement. No premises having been granted a license pursu-
2 ant to this section shall be denied a renewal of such license upon the
3 grounds that such premises are within five hundred feet of a building or
4 buildings wherein three or more premises are licensed and operating
5 pursuant to this section and sections sixty-four-a, sixty-four-b,
6 sixty-four-c, and/or sixty-four-d of this article.
7 § 6. Paragraph (d) of subdivision 7 of section 64-a of the alcoholic
8 beverage control law, as amended by chapter 185 of the laws of 2012, is
9 amended to read as follows:
10 (d) Notwithstanding the provisions of subparagraph (ii) of paragraph
11 (a) of this subdivision, the authority may issue a license pursuant to
12 this section for a premises which shall be within five hundred feet of
13 three or more existing premises licensed and operating pursuant to this
14 section and sections sixty-four, sixty-four-b, sixty-four-c, and/or
15 sixty-four-d of this article if, after consultation with the munici-
16 pality or community board, and due consideration of formal communication
17 from the municipality or community board, it determines that granting
18 such license would be in the public interest. Before it may issue any
19 such license, the authority shall conduct a hearing, upon notice to the
20 applicant and the municipality or community board, and shall state and
21 file in its office its reasons therefor. Notice to the municipality or
22 community board shall mean written notice mailed by the authority to
23 such municipality or community board at least fifteen days in advance of
24 any hearing scheduled pursuant to this paragraph. Upon the request of
25 the authority, any municipality or community board may waive the fifteen
26 day notice requirement. The hearing may be rescheduled, adjourned or
27 continued, and the authority shall give notice to the applicant and the
28 municipality or community board of any such rescheduled, adjourned or
29 continued hearing. Before the authority issues any said license, the
30 authority or one or more of the commissioners thereof may, in addition
31 to the hearing required by this paragraph, also conduct a public meeting
32 regarding said license, upon notice to the applicant and the munici-
33 pality or community board. The public meeting may be rescheduled,
34 adjourned or continued, and the authority shall give notice to the
35 applicant and the municipality or community board of any such resched-
36 uled, adjourned or continued public meeting. No premises having been
37 granted a license pursuant to this section shall be denied a renewal of
38 such license upon the grounds that such premises are within five hundred
39 feet of a building or buildings wherein three or more premises are
40 licensed and operating pursuant to this section and sections sixty-four,
41 sixty-four-b, sixty-four-c, and/or sixty-four-d of this article.
42 § 7. Paragraph (c) of subdivision 5 of section 64-b of the alcoholic
43 beverage control law, as amended by chapter 185 of the laws of 2012, is
44 amended to read as follows:
45 (c) Notwithstanding the provisions of subparagraph (ii) of paragraph
46 (a) of this subdivision, the authority may issue a license pursuant to
47 this section for a premises which shall be within five hundred feet of
48 three or more existing premises licensed and operating pursuant to this
49 section and sections sixty-four, sixty-four-a, sixty-four-c, and/or
50 sixty-four-d of this article if, after consultation with the munici-
51 pality or community board, and due consideration of formal communication
52 from the municipality or community board, it determines that granting
53 such license would be in the public interest. Before it may issue any
54 such license, the authority shall conduct a hearing, upon notice to the
55 applicant and the municipality or community board, and shall state and
56 file in its office its reasons therefor. The hearing may be rescheduled,
A. 2064--A 5
1 adjourned or continued, and the authority shall give notice to the
2 applicant and the municipality or community board of any such resched-
3 uled, adjourned or continued hearing. Before the authority issues any
4 said license, the authority or one or more of the commissioners thereof
5 may, in addition to the hearing required by this paragraph, also conduct
6 a public meeting regarding said license, upon notice to the applicant
7 and the municipality or community board. The public meeting may be
8 rescheduled, adjourned or continued, and the authority shall give notice
9 to the applicant and the municipality or community board of any such
10 rescheduled, adjourned or continued public meeting. Notice to the muni-
11 cipality or community board shall mean written notice mailed by the
12 authority to such municipality or community board at least fifteen days
13 in advance of any hearing scheduled pursuant to this paragraph. Upon the
14 request of the authority, any municipality or community board may waive
15 the fifteen day notice requirement. No premises having been granted a
16 license pursuant to this section shall be denied a renewal of such
17 license upon the grounds that such premises are within five hundred feet
18 of a building or buildings wherein three or more premises are licensed
19 and operating pursuant to this section and sections sixty-four, sixty-
20 four-a, sixty-four-c, and/or sixty-four-d of this article.
21 § 8. Paragraph (c) of subdivision 11 of section 64-c of the alcoholic
22 beverage control law, as amended by chapter 185 of the laws of 2012, is
23 amended to read as follows:
24 (c) Notwithstanding the provisions of subparagraph (ii) of paragraph
25 (a) of this subdivision, the authority may issue a license pursuant to
26 this section for a premises which shall be within five hundred feet of
27 three or more existing premises licensed and operating pursuant to this
28 section and sections sixty-four, sixty-four-a, sixty-four-b and/or
29 sixty-four-d of this article if, after consultation with the munici-
30 pality or community board, and due consideration of formal communication
31 from the municipality or community board, it determines that granting
32 such license would be in the public interest. Before it may issue any
33 such license, the authority shall conduct a hearing, upon notice to the
34 applicant and the municipality or community board, and shall state and
35 file in its office its reasons therefor. The hearing may be rescheduled,
36 adjourned or continued, and the authority shall give notice to the
37 applicant and the municipality or community board of any such resched-
38 uled, adjourned or continued hearing. Before the authority issues any
39 said license, the authority or one or more of the commissioners thereof
40 may, in addition to the hearing required by this paragraph, also conduct
41 a public meeting regarding said license, upon notice to the applicant
42 and the municipality or community board. The public meeting may be
43 rescheduled, adjourned or continued, and the authority shall give notice
44 to the applicant and the municipality or community board of any such
45 rescheduled, adjourned or continued public meeting. Notice to the muni-
46 cipality or community board shall mean written notice mailed by the
47 authority to such municipality or community board at least fifteen days
48 in advance of any hearing scheduled pursuant to this paragraph. Upon the
49 request of the authority, any municipality or community board may waive
50 the fifteen day notice requirement. No premises having been granted a
51 license pursuant to this section shall be denied a renewal of such
52 license upon the grounds that such premises are within five hundred feet
53 of a building or buildings wherein three or more premises are operating
54 and licensed pursuant to this section or sections sixty-four, sixty-
55 four-a, sixty-four-b and/or sixty-four-d of this article.
56 § 9. This act shall take effect immediately.
