Sunday, March 14, 2010

New liquor bill: a wash

The State Senate has passed a bill to add requirements to the liquor licensing process. It's a mixed bag, and reason for concern. The Assembly will consider it next.

If passed by the State Assembly, the State Liquor Authority would necessarily consider the public convenience and advantage of the license, and would necessarily determine that the license is in the public interest before awarding a license.

So far so good. But the "public interest" is no longer tied to "the community." So the public interest would include, for example, state revenue from liquor, or commerce generally beyond the community's local benefit.

The current law considers the "public interest of the community." Deleting those three words allows a revenue-starved government to bypass community concerns. And once a bar strip is installed, it doesn't disappear when the recession ends and the government no longer needs its revenue. The strip remains, displacing local commercial diversity, local services and community character.

Scroll down to see the exact language of the bill.
Its first line is a step advancing towards commercial diversity and community protection. The last line, unfortunately, voids it.

The law has always had a list of "public convenience and advantage" clauses, but they were optional considerations. This bill changes the "public convenience and advantage" clauses from
"may consider any or all"
"SHALL consider ALL"
problems of noise, traffic, density of bars, among others.

The bill still does not define the public interest, and weakens it by deleting "of the community." So the public interest loophole remains in this bill, and now it's even wider.

Almost anything might be in the public interest. For example, if the bar includes a toilet, the success of the bar might be in the public interest, since the public might use the toilet, say, to vomit in, the public having drunk too much liquor at the bar.

More typically, bars argue that the jobs they create are in the public interest. Even more pertinently for the State, the SLA might find that the license renewal fee itself might be in the public interest since that money goes to the government, and the government by definition is, of course, the public interest.

It is impracticable to list every instance of public interest relative to each context. In a depressed neighborhood, jobs might be in the public interest. But in a blue-collar family neighborhood near local workplaces, nightlife might not be the optimal replacement for those local workplaces.

In a recession, government desperately needs revenue and, since nightlife survives a recession better than almost any business, the government may consider liquor licenses very much desirable as a revenue flow, despite no local community interest is served.

So this bill is a mixed bag and there's work to be done. Here's the bill itself. I've highlighted the important changed clauses in red [brackets in brown are the old law being deleted, UPPER CASE red are new words]:

6-a. The authority [may] SHALL consider [any or] all of the following

in determining whether public convenience and advantage and the public
interest will be promoted by the granting of [licenses and permits for
the sale of alcoholic beverages at a particular unlicensed location] A
(a) [The] THE number, classes and character of licenses in proximity
to the location and in the particular municipality or subdivision there-
(b) [Evidence] EVIDENCE that all necessary licenses and permits have
been obtained from the state and all other governing bodies[.];
(c) [Effect] EFFECT of the grant of the license on vehicular traffic
and parking in proximity to the location[.];
(d) [The] THE existing noise level at the location and any increase in
noise level that would be generated by the proposed premises[.];
(e) [The] THE history of liquor violations and reported criminal
activity at the proposed premises[.]; AND
(f) [Any] ANY other factors specified by law or regulation that are
relevant to determine the public convenience and advantage [and public


Zella said...

Either you should clarify which bill # your analysis refers to, or you should include ALL of it because there seems to be conflicting information here.

Senate # S5577A which passed by a vote of 59-0 DOES clarify Community in more specific terms.

S3775 Squadron/A7364 Millman, closes a loophole in the 200-foot and 500-foot laws.

In September 2009, S5578 Squadron/A8518 Schimminger was signed into law, clarifying that the State Liquor Authority should not count restaurants, taverns and other nightlife establishments as distinct categories when considering whether the 500-foot law applies.

Below is the text of a release from Sen. Squadron's office of last Wednesday:

For the first time, the bill will require the State Liquor Authority to consider applicants’ history with Community Boards and make consistent the factors that the SLA takes into account for all applications where the 500-foot rule applies. The bill is sponsored by Assembly Member Robin Schimminger in the Assembly. If it becomes law, the bill will create clear, consistent, and enforceable standards that communities and applicants can rely on.

Currently, under the 500-foot law, the State Liquor Authority must hold a public hearing and consider the public interest when deciding whether to grant a liquor license to a new establishment within 500 feet of three existing establishments, but is not required to consider specific standards. Senator Squadron’s bill makes the standards consistent and no longer optional, and adds two factors for consideration: the applicants’ history with Community Boards, as well as fire and building code violations.

Senator Squadron said, “Without knowing what is meant by public benefit, the entire public suffers. This bill makes community engagement more substantive, and encourages a strong working relationship between establishments and neighborhoods. It is another step toward making our nightlife laws clearer and fairer for everyone involved.”

Senator Squadron has passed a series of bills that seek to create clarity and consistency in nightlife laws. Last week, the Senate passed S3775 Squadron/A7364 Millman, which closes a loophole in the 200-foot and 500-foot laws by clarifying that the distance between nightlife establishments and schools or places of worship must be measured from the property line. In September 2009, S5578 Squadron/A8518 Schimminger was signed into law, clarifying that the State Liquor Authority should not count restaurants, taverns and other nightlife establishments as distinct categories when considering whether the 500-foot law applies.

rob said...

S3775 restricts the 500-foot rule, but doesn't really close a loophole. The language was spread between two sections, allowing confusion that led to abuse. If the SLA had been watchful, it would not have allowed those abuses.

S5578 was a needed correction.

But those are not this S5577A. The only conflict is in the requirements of the first line and the relaxing of them in the last line.

If the first line were "the SLA shall consider all AND ONLY these considerations a-f" there'd be no problem. Or if in the last line "the public interest" were added "as only described above in a-f" there'd be no problem.

But, as I mentioned in the post, it is impracticable to list all and only considerations of the public interest. It varies from community to community, context to context.

That's why I think the solution will have to be in fine-grained zoning of use groups. The ABC laws can only generalize. This is an area that requires community self-determination, and the closest law-making to that is zoning right now.