Assembly Bill A10857

                                BILL NUMBER:A10857

TITLE OF BILL:
An act to amend the alcoholic beverage control law, in relation to the
conditions precedent to revocation of a license for cause

PURPOSE:
This bill would establish a clear legal standard for determining when a
licensed premises has become a focal point for police attention and
thereby subject to possible revocation of the license.

SUMMARY OF PROVISIONS:

Section 1 of the bill would add a new subdivision 4 to Alcoholic Bever-
age Control (ABC) Law § 118 to create a rebuttable presumption that a
licensed premises has become a focal point for police attention upon the
occurrence of the sixth complaint of noise or disturbance responded to
by police on or about the licensed premises or relating to the conduct
of its patrons in any 60 day period.

Section 2 of the bill would provide for an immediate effective date.

EXISTING LAW:

ABC Law § 118(3) currently establishes that a "sustained and continuing
pattern of noise, disturbance, misconduct, or disorder on or about the
              

licensed premises, related to the operation of the premises or the
conduct of its patrons" is sufficient cause for revocation of a liquor
license.  However, since there is no cognizable or measureable standard
set forth in current law to calculate the existence of a focal point for
police attention, numerous State Liquor Authority (SLA) determinations
revoking licenses that clearly operate as focal points for police atten-
tion have been successfully attacked via Article 78 proceedings;

LEGISLATIVE HISTORY:

Similar departmental legislation was introduced in 2008 as
S.7372/A.11163.

STATEMENT IN SUPPORT:

ABC Law § 118 provides that the SLA may revoke, cancel or suspend a
liquor license due to a "sustained and continuing pattern of noise,
disturbance, misconduct or disorder" -- i.e., the premises.have become a
"focal point" of police attention. However, courts have held that a
determination that a licensed premise has become a "focal point" for
police attention can be upheld only by an affirmative showing by the SLA
that either the licensee or an employee vested with "managerial authori-
ty" was actually aware of the individual events and conditions that make
up the basis for the focal point charge.

This is known as the "managerial exception" to the general rule that
licensees are responsible for operating safe and healthy establishments
free of any pattern of noise, disturbance, misconduct or disorder that
would threaten public well being. Therefore, a bar that has been the
site of multiple misconduct by patrons cannot be found to be a focal
point unless it can be shown that the licensee suffered or permitted the
conduct. By establishing a rebuttable, presumption that a licensed prem-
ise is operating as a focal point for police attention after six inci-
dents responded to by police within any 60 day period, this initiative
will eliminate the frequently misused managerial exception rule - which
forces the SLA to prove that someone with managerial capacity had know-
ledge of each and every instance of police involvement before it can be
held against the licensee in administrative disciplinary proceedings.

Enactment of this legislation will establish a reasonable threshold and
legal presumption that liquor licensees and their managers have a duty
to be aware of police units repeatedly responding to their businesses
regarding violence, narcotics trafficking, prostitution, gambling, or
other public nuisances and will enable the SLA to resume the fight
against the proliferation of licensed establishments in the State acting
outside of the law while regularly putting public health and safety at
risk.

BUDGET IMPLICATIONS:

None.

EFFECTIVE DATE:

This bill would be effective immediately.