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A07510 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: Bichotte (MS)
  TITLE OF BILL: An act to amend chapter 118 of the laws of 2012 amend- ing the alcoholic beverage control law relating to the powers of the chairman and members of the authority, in relation to the effectiveness of certain provisions thereof   PURPOSE OF THE BILL: This bill would extend for three years changes made to sections 15, 17 and 18 of the Alcoholic Beverage Control Law ("ABCL") via Chapter 118 of the Laws of 2012 that delegated to the Chairman of the State Liquor Authority exclusive executive authority over the State Liquor Authority and the Division of Alcoholic Beverage Control.   SUMMARY OF PROVISIONS: Section 1 of the bill would amend Chapter 118 of the Laws of 2012, by extending the expiration date of same for three years from July 18, 2015 until July 18, 2018. Section 2 of the bill would make the amendment effective immediately.   EXISTING LAW: Prior to enactment of Chapter 118 of the Laws of 2012, the powers which this bill would continue to extend to the Chairman were vested in the board of the State Liquor Authority. Pursuant to the budg- et for State Fiscal Year 2011-12, all Members of the Authority except the Chairman became per diem members of the board, with the goal of vesting day-to-day exclusive executive authority over the State Liquor Authority and the Division of Alcoholic Beverage Control in the Chair- man.   LEGISLATIVE HISTORY: As stated above, this is a proposal to extend for three years amendments to ABCL §§ 15, 17 and 18 that were made via Chapter 118 of the Laws of 2012.   STATEMENT IN SUPPORT: Extension of these amendments will allow the Authority to continue to operate in keeping with recommendations of the New York State Law Revision Commission, who stated in their Report on the Alcoholic Beverage Control Law and its Administration ("Report"), in relevant part, as follows (Report, p.25): The ABC Law should be amended to grant the Chairman of the Authority exclusive executive authority over both the division of alcoholic bever- age control and the Authority, including the authority to hire, assign, and fire deputies, counsels, assistants, investigators and all other employees within the limits of the agency appropriation, in consultation with the other members of the Authority, removing all such responsibil- ity from the Authority. ABC Law §§ 15 and 17(4) formerly delegated the power to hire and fire to the three-member State Liquor Authority acting as a Full Board. The Law Revision Commission noted that the full board control over hiring and firing may well prevent employment decisions from being made where there is a vacancy on the Full Board and a disagreement between the two serv- ing board members (Report, p. 122): Although by statute, the Chairman has administrative control, he does not have the power to hire and fire. The entire Board has to agree on an employment decision. If there were not unanimous agreement between the two current Commissioners, no employment decisions could be made. Even where the Authority's board is fully staffed with its three members, the Chairman's ability to take administrative action may be called into question by a challenge to the scope of his authority (Report, p.129): The multiple agency head exercising administrative authority could result in the Chairman being undermined if the other members disagree with him or her. For example, in 2008, two of the Commissioners disa- greed with certain actions of the Chairman so they voted to rescind previous delegations of authority to the Chairman. Chapter 118 of the Laws of 2012, in the first instance, sought to imple- ment the Law Revision Commission recommendation that the Chairman be delegated exclusive administrative control over hiring and firing. These sections also make clear the scope of the Chairman's authority over budget and fiscal matters, the submission of required reports, and the development of minimum criteria for ATAP. In addition, providing the Chairman, rather than the Full Board, with administrative power over the agency recognizes the impact of another significant change made to the organizational structure of the State Liquor Authority. Commencing in Fiscal Year 2011-2012, the Commissioners of the Authority are no longer "full time" employees. Instead, they serve on a per diem basis centered primarily on their duties at Full Board meetings. The Chairman, as the sole remaining "full time" Member of the Authority, is best situated to address the administrative func- tions of the agency. Extension of the delegation of administrative functions to the exclusive control of the Chairman does not diminish the regulatory powers exer- cised by the three-member Authority. The three members of the Authority, acting together as a full board, will continue to regulate alcoholic beverage traffic within the State. Briefly stated, ABCL § 17 will continue to empower the three-member Authority: 1. To approve or disapprove license and permit applications; 2. To limit the number of licenses of each class to be issued within the state or any political subdivision thereof; 3. To revoke, cancel or suspend for cause any license or permit issued under this chapter and/or to impose a civil penalty for cause against any holder of a license or permit issued pursuant to this chapter; 4. To fix by rule the standards in the manufacture of alcoholic beverag- es to be sold or consumed in the state; 5. To hold hearings, subpoena and examine any person under oath, and require the production of any books or papers relative to the inquiry; 6. To prohibit during a period of a public emergency the sale of any or all alcoholic beverages; 7. To delegate the powers provided in this section to the chairman, or to such other officers or employees as may be designated by the chair- man; 8. To appoint advisory groups; and 9. To approve or disapprove the request of a county legislative body to restrict or modify the legal hours of sale within such county. Thus, while extending the grant of exclusive administrative authority to the Chairman, this legislation also prudently preserves for the Full Board those functions best performed by a deliberative body, and those regulatory determinations involving broad policy considerations that are best left to a contemplative body.   BUDGET IMPLICATIONS: None.   LOCAL IMPACT: None.   EFFECTIVE DATE: This act shall take effect immediately.
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