Senate Bill S7378

                                BILL NUMBER:S7378A

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 premise 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
Beverage 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 incident reported to the
State Liquor Authority (SLA) of noise or disturbance 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 attention 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
authority" 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 premise is operating as a focal point for
police attention after six incidents reported 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 knowledge 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.