S T A T E O F N E W Y O R K
________________________________________________________________________
1136
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. GALEF, DINOWITZ, SCHIMEL, FIELDS, EDDINGTON,
McDONOUGH, LANCMAN, JAFFEE, MAYERSOHN, FINCH, BURLING, ERRIGO, McKEV-
ITT, MOLINARO, RABBITT, WALKER -- Multi-Sponsored by -- M. of A.
BOYLAND, CHRISTENSEN, CONTE, CROUCH, DelMONTE, GOTTFRIED, MAISEL,
MILLMAN, PHEFFER, REILLY, SAYWARD, THIELE -- read once and referred to
the Committee on Economic Development, Job Creation, Commerce and
Industry
AN ACT to amend the alcoholic beverage control law, in relation to
providing that adults in control of private property are responsible
for alcoholic beverages provided to minors at social events held on
the property
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The alcoholic beverage control law is amended by adding a
new section 65-e to read as follows:
S 65-E. OFFENSE TO PROVIDE ALCOHOLIC BEVERAGES TO MINORS ON PRIVATE
PROPERTY. 1. AS USED IN THIS SECTION:
(A) "RESIDENTIAL PREMISES" SHALL MEAN PRIVATE PROPERTY INCLUDING A
HOUSE, CONDOMINIUM, APARTMENT, ROOM, STUDIO, LOFT, TOWNHOUSE, AND COOP-
ERATIVE UNIT, TOGETHER WITH YARDS AND OTHER OPEN AREAS ADJACENT THERETO,
PROVIDED SUCH YARDS OR AREAS ARE PART OF THE PROPERTY;
(B) "LEGAL OCCUPANT" SHALL MEAN A PERSON OWNING, OCCUPYING PURSUANT TO
A LEASE OR RENTAL AGREEMENT, OR OTHERWISE EXERTING SUBSTANTIAL CONTROL,
DOMINATION AND DIRECTION OVER A RESIDENTIAL PREMISES, AND SHALL INCLUDE
ALL COMPETENT ADULT PERSONS LIVING AT A RESIDENTIAL PREMISES ON A PERMA-
NENT BASIS; AND
(C) "SOCIAL EVENT" SHALL MEAN A PARTY, OPEN HOUSE OR OTHER SOCIAL
GATHERING AT A RESIDENTIAL PREMISES ATTENDED BY ONE OR MORE PERSONS
UNDER THE AGE OF TWENTY-ONE YEARS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01708-01-9
A. 1136 2
2. NO PERSON WHO IS THE LEGAL OCCUPANT OF A RESIDENTIAL PREMISES
SHALL:
(A) KNOWINGLY OR INTENTIONALLY OBTAIN, FURNISH, DELIVER OR OTHERWISE
PROVIDE ALCOHOLIC BEVERAGES TO ANY PERSON UNDER THE AGE OF TWENTY-ONE
YEARS AT A SOCIAL EVENT HELD AT SUCH PREMISES; OR
(B) ALLOW THE CONSUMPTION OF ALCOHOLIC BEVERAGES BY ANY PERSON UNDER
THE AGE OF TWENTY-ONE YEARS AT A SOCIAL EVENT HELD AT SUCH PREMISES,
REGARDLESS OF WHETHER SUCH PERSON KNOWINGLY OR INTENTIONALLY OBTAINED,
FURNISHED, DELIVERED OR OTHERWISE PROVIDED THE ALCOHOLIC BEVERAGES.
3. EXCEPT AS IS OTHERWISE PROVIDED IN THIS CHAPTER, THE PROVISIONS OF
SUBDIVISION ONE OF THIS SECTION SHALL NOT APPLY TO:
(A) A PERSON WHO GIVES OR CAUSES TO BE GIVEN ANY ALCOHOLIC BEVERAGE TO
A PERSON UNDER THE AGE OF TWENTY-ONE YEARS, WHO IS A STUDENT IN A
CURRICULUM LICENSED OR REGISTERED BY THE STATE EDUCATION DEPARTMENT AND
IS REQUIRED TO TASTE OR IMBIBE ALCOHOLIC BEVERAGES IN COURSES WHICH ARE
PART OF THE REQUIRED CURRICULUM, PROVIDED SUCH ALCOHOLIC BEVERAGES ARE
USED ONLY FOR INSTRUCTIONAL PURPOSES DURING CLASSES CONDUCTED PURSUANT
TO SUCH CURRICULUM; OR
(B) A PERSON WHO GIVES OR CAUSES TO BE GIVEN ANY ALCOHOLIC BEVERAGE TO
A PERSON UNDER THE AGE OF TWENTY-ONE YEARS, WHICH MINOR PERSON IS A
SPOUSE, CHILD, GRANDCHILD OR WARD OF SUCH PERSON, AT A SOCIAL EVENT AT
THE RESIDENTIAL PREMISES SUPERVISED BY SUCH PERSON AND ATTENDED BY FAMI-
LY MEMBERS OF SUCH PERSON, PROVIDED SUCH SPOUSE, CHILD, GRANDCHILD OR
WARD IS PROHIBITED FROM OPERATING A MOTOR VEHICLE AS DEFINED IN THE
VEHICLE AND TRAFFIC LAW UNTIL SUCH TIME AS ALL ALCOHOL HAS DISSIPATED
FROM HIS OR HER SYSTEM, BUT IN NO EVENT, FOR A PERIOD OF LESS THAN
TWELVE HOURS AFTER CONSUMPTION OF THE LAST ALCOHOLIC BEVERAGE; OR
(C) A LANDLORD WHO HAS RENTED A RESIDENTIAL PREMISES TO A TENANT
PURSUANT TO A VALID LEASE EXECUTED OR RENTAL AGREEMENT ENTERED INTO BY
THE LANDLORD AND TENANT IN THE USUAL COURSE OF BUSINESS PRIOR TO THE
DATE OF THE SOCIAL EVENT, WHICH LEASE GIVES THE TENANT ACTUAL CONTROL
OVER THE RESIDENTIAL PREMISES AND SUBSTANTIALLY RESTRICTS THE LANDLORD'S
CONTROL OVER SUCH PREMISES.
4. A PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE GUILTY
OF A VIOLATION AND SHALL BE SENTENCED IN ACCORDANCE WITH THE FOLLOWING:
(A) ANY PERSON WHO HAS KNOWLEDGE OF FACTS WHICH WOULD HAVE LED A
REASONABLE PERSON TO CONCLUDE THAT ALCOHOLIC BEVERAGES WOULD BE CONSUMED
IN VIOLATION OF THE PROVISIONS OF PARAGRAPH (B) OF SUBDIVISION TWO OF
THIS SECTION SHALL BE GUILTY OF AN OFFENSE, AND UPON CONVICTION THEREOF
SHALL BE PUNISHED BY A FINE OF NOT MORE THAN ONE HUNDRED DOLLARS, OR BY
IMPRISONMENT FOR NOT MORE THAN ONE DAY, OR BY BOTH SUCH FINE AND IMPRI-
SONMENT.
(B) ANY PERSON WHO KNOWINGLY OR INTENTIONALLY ALLOWS THE CONSUMPTION
OF ALCOHOLIC BEVERAGES IN VIOLATION OF THE PROVISIONS OF PARAGRAPH (B)
OF SUBDIVISION TWO OF THIS SECTION SHALL BE GUILTY OF A VIOLATION OF THE
PROVISIONS OF THIS SECTION AND SHALL BE GUILTY OF AN OFFENSE, AND UPON
CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT MORE THAN TWO
HUNDRED DOLLARS, OR BY IMPRISONMENT FOR NOT MORE THAN THREE DAYS, OR BY
BOTH SUCH FINE AND IMPRISONMENT, AND SHALL BE GUILTY OF A CLASS B MISDE-
MEANOR.
(C) ANY PERSON WHO VIOLATES THE PROVISIONS OF PARAGRAPH (A) OF SUBDI-
VISION TWO OF THIS SECTION SHALL BE GUILTY OF AN OFFENSE, AND UPON
CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT MORE THAN TWO
HUNDRED DOLLARS, OR BY IMPRISONMENT FOR NOT MORE THAN FIVE DAYS, OR BY
BOTH SUCH FINE AND IMPRISONMENT, AND SHALL ALSO BE GUILTY OF A CLASS A
MISDEMEANOR, AND SHALL ALSO BE POTENTIALLY SUBJECT TO A CHARGE OF RECK-
A. 1136 3
LESS ENDANGERMENT IN THE SECOND DEGREE AS PROVIDED IN SECTION 120.20 OF
THE PENAL LAW.
(D) ANY PERSON WHO HAS KNOWLEDGE OF FACTS WHICH WOULD HAVE LED A
REASONABLE PERSON TO CONCLUDE THAT ALCOHOLIC BEVERAGES WOULD BE CONSUMED
IN VIOLATION OF THE PROVISIONS OF PARAGRAPH (B) OF SUBDIVISION TWO OF
THIS SECTION, AND WHO ALSO HAS KNOWLEDGE OF FACTS WHICH WOULD HAVE LED A
REASONABLE PERSON TO CONCLUDE THAT A MINOR PERSON WHO CONSUMED SUCH
ALCOHOLIC BEVERAGES WOULD SUBSEQUENTLY OPERATE A MOTOR VEHICLE AS
DEFINED IN THE VEHICLE AND TRAFFIC LAW PRIOR TO THE TIME ALL ALCOHOL HAS
DISSIPATED FROM HIS OR HER SYSTEM, BUT IN NO EVENT, FOR A PERIOD OF LESS
THAN TWELVE HOURS AFTER CONSUMPTION OF THE LAST ALCOHOLIC BEVERAGE,
SHALL BE GUILTY OF AN OFFENSE, AND UPON CONVICTION THEREOF SHALL BE
PUNISHED BY A FINE OF NOT MORE THAN ONE HUNDRED DOLLARS, OR BY IMPRISON-
MENT FOR NOT MORE THAN ONE DAY, OR BY BOTH SUCH FINE AND IMPRISONMENT
AND SHALL ALSO BE GUILTY OF A CLASS B MISDEMEANOR.
(E) ANY PERSON WHO KNOWINGLY OR INTENTIONALLY VIOLATES THE PROVISIONS
OF PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION, AND WHO SUBSEQUENT-
LY ALLOWS A MINOR PERSON WHO CONSUMED SUCH ALCOHOLIC BEVERAGES TO OPER-
ATE A MOTOR VEHICLE AS DEFINED IN THE VEHICLE AND TRAFFIC LAW PRIOR TO
THE TIME ALL ALCOHOL HAS DISSIPATED FROM HIS OR HER SYSTEM, BUT IN NO
EVENT, FOR A PERIOD OF LESS THAN TWELVE HOURS AFTER CONSUMPTION OF THE
LAST ALCOHOLIC BEVERAGE, SHALL BE GUILTY OF AN OFFENSE, AND UPON
CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT MORE THAN TWO
HUNDRED DOLLARS, OR BY IMPRISONMENT FOR NOT MORE THAN THREE DAYS, OR BY
BOTH SUCH FINE AND IMPRISONMENT, AND SHALL ALSO BE GUILTY OF RECKLESS
ENDANGERMENT IN THE SECOND DEGREE AS PROVIDED IN SECTION 120.20 OF THE
PENAL LAW. A PERSON GUILTY OF A SUBSEQUENT VIOLATION AS DESCRIBED IN
THIS PARAGRAPH SHALL BE PUNISHED BY A FINE OF NOT MORE THAN FIVE HUNDRED
DOLLARS, OR BY IMPRISONMENT FOR NOT MORE THAN FIVE DAYS, OR BY BOTH SUCH
FINE AND IMPRISONMENT, AND SHALL ALSO BE GUILTY OF RECKLESS ENDANGERMENT
IN THE FIRST DEGREE AS PROVIDED IN SECTION 120.25 OF THE PENAL LAW.
(F) ANY PERSON WHO VIOLATES THE PROVISIONS OF PARAGRAPH (A) OF SUBDI-
VISION TWO OF THIS SECTION, AND WHO SUBSEQUENTLY ALLOWS A MINOR PERSON
WHO CONSUMED SUCH ALCOHOLIC BEVERAGES TO OPERATE A MOTOR VEHICLE AS
DEFINED IN THE VEHICLE AND TRAFFIC LAW PRIOR TO THE TIME ALL ALCOHOL HAS
DISSIPATED FROM HIS OR HER SYSTEM, BUT IN NO EVENT, FOR A PERIOD OF LESS
THAN TWELVE HOURS AFTER CONSUMPTION OF THE LAST ALCOHOLIC BEVERAGE,
SHALL BE GUILTY OF AN OFFENSE AS PROVIDED IN SECTION SIXTY-FIVE-A OF
THIS ARTICLE, AND UPON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF
NOT MORE THAN FIVE HUNDRED DOLLARS, OR BY IMPRISONMENT FOR NOT MORE THAN
FIVE DAYS, OR BY BOTH SUCH FINE AND IMPRISONMENT, AND SHALL ALSO BE
GUILTY OF RECKLESS ENDANGERMENT IN THE FIRST DEGREE AS PROVIDED IN
SECTION 120.25 OF THE PENAL LAW. A PERSON GUILTY OF A SUBSEQUENT
VIOLATION AS DESCRIBED IN THIS PARAGRAPH SHALL BE PUNISHED BY A FINE OF
NOT MORE THAN ONE THOUSAND DOLLARS, OR BY IMPRISONMENT FOR NOT MORE THAN
TEN DAYS, OR BY BOTH SUCH FINE AND IMPRISONMENT, AND SHALL ALSO BE GUIL-
TY OF RECKLESS ENDANGERMENT IN THE FIRST DEGREE AS PROVIDED IN SECTION
120.25 OF THE PENAL LAW.
(G) ANY PERSON CONVICTED OF A VIOLATION AS DESCRIBED IN PARAGRAPH (B),
(C), (E) OR (F) OF THIS SUBDIVISION, OR OF THREE OR MORE VIOLATIONS AS
DESCRIBED IN PARAGRAPH (A) OR (D) OF THIS SUBDIVISION, SHALL BE REQUIRED
TO COMPLETE AN ALCOHOL AWARENESS PROGRAM ESTABLISHED PURSUANT TO SECTION
19.25 OF THE MENTAL HYGIENE LAW, AND TO PAY ALL COSTS INCURRED IN
CONNECTION WITH HIS OR HER PARTICIPATION IN THE PROGRAM.
(H) ANY SENTENCING FOR A CONVICTION UNDER PARAGRAPH (C) OR (F) OF THIS
SUBDIVISION SHALL INCLUDE MANDATORY PROBATION FOR A PERIOD DETERMINED TO
A. 1136 4
BE IN ACCORDANCE WITH THE SEVERITY OF THE OFFENSE AND WITH REGARD TO
WHETHER THE CONVICTION INVOLVED A REPEAT OFFENSE.
(I) ANY PERSON CONVICTED OF A VIOLATION AS DESCRIBED IN PARAGRAPH (E)
OR (F) OF THIS SUBDIVISION, SHALL BE REQUIRED TO:
(I) COMPLETE AN ALCOHOL AND DRIVER SAFETY PROGRAM ESTABLISHED PURSUANT
TO SECTION FIVE HUNDRED TWENTY-THREE-A OF THE VEHICLE AND TRAFFIC LAW,
AND TO PAY ALL COSTS INCURRED IN CONNECTION WITH HIS OR HER PARTIC-
IPATION IN THE PROGRAM; AND
(II) BE PRESENT FOR ANY VICTIM IMPACT STATEMENTS MADE BY PERSONS
INJURED BY A MINOR AS A RESULT OF AN AUTOMOBILE ACCIDENT FOLLOWING A
SOCIAL EVENT WHEREAT SAID MINOR WAS PROVIDED WITH OR ALLOWED TO CONSUME
ALCOHOLIC BEVERAGES BY THE PERSON CONVICTED OF A VIOLATION OF THE
PROVISIONS OF THIS SECTION.
5. NOTHING IN THIS SECTION SHALL PROHIBIT THE PROSECUTION OF A PERSON
VIOLATING OR CONVICTED OF VIOLATING THE PROVISIONS OF THIS SECTION FROM
BEING PROSECUTED UNDER ANY SECTION OF THE LAW, OR PREVENT SUCH PERSON
FROM BEING HELD CIVILLY LIABLE IN CONNECTION WITH HIS OR HER ACTIONS.
6. NO DETERMINATION OF GUILT PURSUANT TO THIS SECTION SHALL OPERATE AS
A DISQUALIFICATION OF ANY SUCH PERSON SUBSEQUENTLY TO HOLD PUBLIC
OFFICE, PUBLIC EMPLOYMENT, OR AS A FORFEITURE OF ANY RIGHT OR PRIVILEGE
OR TO RECEIVE ANY LICENSE GRANTED BY PUBLIC AUTHORITY; AND NO SUCH
PERSON SHALL BE DENOMINATED A CRIMINAL BY REASON OF SUCH DETERMINATION.
7. IN ANY PROCEEDING CONCERNING A VIOLATION OF THE PROVISIONS OF THIS
SECTION, IT SHALL BE AN AFFIRMATIVE DEFENSE THAT A PERSON CHARGED WITH
THE VIOLATION, OR ANOTHER ADULT PERSON LEGALLY OCCUPYING THE RESIDENTIAL
PREMISES AND ACTING IN CONJUNCTION WITH THE PERSON CHARGED WITH THE
VIOLATION, ACTIVELY ATTEMPTED TO ASCERTAIN THE AGES OF PERSONS PRESENT
AT THE SOCIAL EVENT PRIOR TO PROVIDING OR ALLOWING THE CONSUMPTION OF
ALCOHOLIC BEVERAGES TO OR BY ANY PERSON UNDER THE AGE OF TWENTY-ONE
YEARS, THAT SUCH PERSON WAS PRESENTED WITH CLEAR AND CONVINCING EVIDENCE
THAT THE INDIVIDUALS CONSUMING THE ALCOHOLIC BEVERAGES WERE OVER THE AGE
OF TWENTY-ONE YEARS, AND THAT SUCH PERSON DID NOT PROVIDE OR ALLOW
CONSUMPTION OF ALCOHOLIC BEVERAGES TO OR BY ANY INDIVIDUAL KNOWN TO BE
UNDER THE AGE OF TWENTY-ONE YEARS. PRESENTATION OF A VALID DRIVER'S
LICENSE OR NON-DRIVER PHOTO IDENTIFICATION CARD ISSUED BY A GOVERNMENTAL
ENTITY SHALL BE CLEAR AND CONVINCING EVIDENCE OF AGE. THIS DEFENSE SHALL
NOT BE AVAILABLE WITH REGARD TO A VIOLATION OF THIS SECTION INVOLVING A
MINOR OTHERWISE SUSPECTED OR KNOWN TO THE PERSON TO BE UNDER THE AGE OF
TWENTY-ONE YEARS. NOTWITHSTANDING THE PROVISIONS OF THIS SUBDIVISION,
ANY SUCH AFFIRMATIVE DEFENSE SHALL NOT BE APPLICABLE IN ANY OTHER CIVIL
OR CRIMINAL PROCEEDING, OR IN ANY OTHER FORUM.
8. NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT OR
PROHIBIT THE AUTHORITY OF A COUNTY, CITY, TOWN OR VILLAGE FROM ADOPTING
OR ENFORCING ANY LOCAL LAW, ORDINANCE OR REGULATION IF SUCH LOCAL LAW,
ORDINANCE OR REGULATION PROVIDES PENALTIES EQUAL TO OR GREATER THAN THE
PROVISIONS OF THIS SECTION, OR ANY RULES AND REGULATIONS PROMULGATED
HEREUNDER.
S 2. This act shall take effect on the ninetieth day after it shall
have become a law.