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Letter of the (Proposed) Law: Squadron Responds to Concerns About SLA Bill

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Last week we reported about Senator Daniel Squadron’s bill meant to “strengthen and clarify the factors considered by the State Liquor Authority when reviewing liquor license applications.” Today, he responded to concerns about that legislation expressed by a neighborhood activist. We’ll get to the criticism of the bill in a moment. First an explanation of the current law — and what the Senator is proposing…

The bill addresses a section of New York’s Alcohol Beverage Control Law known as the “500 foot rule.”  In theory, it is supposed to restrict the opening of a bar or restaurant serving alcohol if there are already three other establishments serving liquor within 500 feet. The law allows the State Liquor Authority to make exceptions to the rule if it’s in the “public interest.”  As currently written, the law says the SLA “may consider… any or all” of the following:

  • The number and type of licenses already existing in the area
  • Whether the applicant has obtained all of the necessary government permits
  • The impact on automobile traffic and parking
  • The impact on the noise level
  • The applicant’s violation history and any criminal history
  • “Any other factors specified by law or regulation that are relevant to determine the public convenience and advantage and public interest of the community and necessary to find that the granting of such license shall be in the public interest.”

Squadron’s bill would change the language in the law to say the “authority shall consider all of  “these factors “in determining whether public convenience and advantage and the public interest will be promoted by the granting of a license.”  It also adds two additional factors:

  • The history of building and fire violations at any businesses owned and/or operated by the applicant
  • The history of community board opinions and decisions (regarding businesses owned/operated by the applicant)

Now to the concerns spelled out by East Village resident Rob Hollander on his blog, Save the Lower East Side.  He pointed out that the Squadron revision deletes the three words indicating that the SLA may consider any other laws relevant to determining the public interest “of the community.”  Without this phrase, Hollander writes…

“the public interest would include, for example, state revenue from liquor, or commerce generally beyond the community’s local benefit… Deleting those… 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.

In a letter to Hollander, Squadron responded, “I strongly disagree with your interpretation that the bill weakens community input.” Squadron said the omission of those words makes the “public interest” clause consistent with the rest of the law. He added that “community” is not defined as a neighborhood resident, as Hollander’s post suggested. “The phrase ‘public interest’ is consistently used in the laws that define the opinions of communities and community boards,” he said.

Hollander also has another concern — that the bill does not clearly define the ambiguous phrase, “public interest:”

Almost anything might be in the public interest… 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.

That’s Hollander’s take on the legislation. How about the community board? CB3 has not weighed in with an official position on the bill. However, District Manager Susan Stetzer, who’s on the front lines dealing with licensing issues, told us the following:

Senator Squadron’s new bill has much stronger language regarding consideration of public interest. However, I am not sure if it will impact  decisions.  If you go back in SLA history, when Senator (Frank) Padavan introduced the 500-foot rule (in 1993), the intention was clearly that the standard would be not to approve licenses if there were 3 or more full licenses within 500 feet. However, until about 2005, 500-foot hearings were held as required by law, but the decisions did not follow the intent of the law. It is also stronger because it asks for evidence of permits and  licenses. I believe the SLA is already doing this—but this will make sure it happens under all administrations. It also asks for the history of building and fire violations and history of community board decisions regarding the applicant. So, it is really quite a bit stronger.

In his letter to Hollander, Squadron wrote, “this bill does not completely reform the SLA or the community process in licensing. However it does improve, clarify and strengthen the factors that must be considered by the SLA in the licensing of bars and restaurants.”

The bottom line seems to be this. Defining the term “public interest” in a very specific way could be a slippery slope both politically and legally. It’s hard to imagine any two people, let alone the fractious State Legislature, coming to an agreement on what benefits “the community.”  At least some community activists give Squadron credit for tackling the problem. At the same time, there are people who want to make sure any new law compels the SLA to abide by community concerns.  Many observers doubt such a law could make it through Albany or stand up in a court of law.

The bill passed the Senate 59-0. It is now being considered by the Assembly.

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5 COMMENTS

  1. Thanks for a thorough account of all sides. Just to be accurate, I pointed out the deletion of only three words, “of the community.” That phrase restricted “the public interest” to specifically local concerns, and that’s why the current law contains it.

    The centerpiece of the NY Nightlife Association’s defense of new liquor licenses is “the public interest” of city revenue and the economy of the city generally. Take a look at their website. NYNA knows well that local communities regularly oppose new liquor licenses. The argument for city revenue and general economic impact strongly implies that the general public interest is more important than the local community’s not-in-my-backyard, parochial, narrow, “selfish” interest.

    That’s why I question the deletion of those three words. Those three words are the obstacle to NYNA’s entire line of defense. No matter how many local, nimby concerns are brought to bear, the overwhelming impact on the city will supersede them, especially in a recession. Moreover, the new SLA and our new recession governor have leant towards favoring nightlife over the previous administration which had favored local concerns.

    In the 500-foot rule, the words “the public interest” are not restricted the community board decisions. On the contrary, the 500-foot rule indicates only that the SLA must first consult with the community board, but then may make its own determination on “the public interest.” It is not required to evaluate “the public interest” according to the community board; it simply consults:
    “the authority may issue a license…if, after consultation with the municipality or community board, it determines that granting such license would be in the public interest.”
    In other words, the law requires only that the SLA consult the CB before awarding a liquor license.

    Deleting “of the community” to conform “the public interest” in the 500-foot rule simply weakens the words. In fact, the 500-foot paragraph should be strengthened with “of the community” at the end.

    Danny argues that “the community” is not well-defined, and therefore should be deleted. But “the public interest” is not well-defined either. In his bill, he does not state “shall consider all AND ONLY the following….” So even in his own language “the public interest” is not defined. Is that a reason to delete “the public interest” as well?

    If it is true, as Lo-down indirectly implies, that this bill could not pass the assembly without some concession to NYNA, I’d question whether the strong language that has been added is worth the weakening of the deletion “of the community.”

    Requiring that the community board issues like noise and traffic be recorded, this bill may compel the SLA to give more explicit justifications for the public interest beyond the local interests. But, as Susan Stetzer mentions, the SLA is already required to consult (i.e., records) these local concerns already. So I’m not sure that *requiring* these in the bill would change much of anything, if the SLA can determine its decisions based on public interest beyond those concerns. On the other hand, I think the deletion of “of the community” will give the SLA wider room for finding interests outside the community.

    In any case, I can find no local community benefit to delete that phrase. So why delete it? On the other hand, it is a plum for NYNA — the object of their most desire. I hope community board advocates of this bill will think twice about the consequences.

  2. “But, as Susan Stetzer mentions, the SLA is already required to consult (i.e., records) these local concerns already. So I’m not sure that *requiring* these in the bill would change much of anything”

    I think words are being put in my mouth. I believe that the SLA does more than “record” local concerns. As I said, I do think the language strengthens the public interest section, and I should not be quoted as evidence to the contrary. I base this on my actual experience in dealing with SLA and SLA issues on a continual daily basis.

    I think there is great confusion about the use of the word “community.” This does not refer just to local residents. “Community” refers to local residents, businesses, property owners, workers, and anyone else with an interest. Tax revenues also benefit local residents. I was at a hearing recently in which the community interests that came to testify were mostly neighboring bars and restaurants. And, most of these businesses were owned by people living in the immediate area.

    I may be somewhat jaded as to what will actually effect change, but I believe this bill only strengths community board input and in no way weakens it. I do not have time to engage further, but I was concerned about the use of my name. Also, I want to be clear that I was not saying that this bill in any way weakens existing legislation.

  3. I changed the original post in reference to those “three words,” and added a fuller excerpt from Squadron’s proposed revision.

    No doubt about it – there’s a difference of opinion about the legal importance of that phrase. It is embedded in recent court rulings, in which the SLA was compelled to consider community concerns. However, the opinions don’t appear to address the relevance of “in the community” directly.

    Senator Squadron contends that, taken as a whole, the law makes it clear the community must have a role — and that those three words are not decisive.

    We’ll see if any legal experts care to weigh in on the matter.

  4. Suppose “of the community” is utterly meaningless, as Danny claims. Is that a reason to delete them from the law? No one has yet answered this question.

    Danny’s explanation is troubling in itself. His explanation is not: the words are harmful, we must delete them. That would be a sufficient reason to delete words in the law. But his explanation has the form: x is unnecessary, therefore we must take action to remove it. Such a reason does not rise to action, particularly the action of deleting words in the law of the land.

    *None* of the supporters of this bill has addressed this peculiar excess of action beyond justification.

    Suppose your doctor told you “This organ is healthy, but I have surgically removed it because, though it is healthy, it is unnecessary and besides I have given you a prescription for new eyeglasses which you really do need.” You’d thank the useful, valuable, strengthened prescription, but you’d be a fool not to wonder whether how much he’d charged you for that unnecessary surgery: his medical reason clearly does not suffice for the action of surgery. That action beyond justification leads to suspicion.

    You can’t but wonder what the real reason is for deleting these words that he insists are unnecessary and do no harm. For that matter, you’ve got to wonder how he can dismiss the words “of the community” so lightly. Considering the Nightlife Association’s focus on city-wide economic impact beyond the local community, those words “of the community” do not appear “unnecessary” at all, and the deletion demands a strong explanation, not a weak reason.

    If it’s a concession to the Nightlife industry to get the bill passed for the sake of the strengthening of the community boards’ voice in lines a-g, then we have to ask — and openly and explicitly debate — how much is being lost. If it’s a concession to NYNA, then they must like it.

    I like Danny Squadron a lot as a Senator. I think he wants to support his local voters in ways that I support. I think he also wants to appeal to his voters. That’s why I worry about this bill. It looks like it has great appeal to the voters, but his press release didn’t mention the deletion of “of the community.” Well, obviously. And that’s just it. What’s that deletion doing? *What’s that deletion doing?* That’s what raised a red flag to me. And when supporters of the bill say “‘of the community’ is unnecessary,” I am astonished, and when they suggest that harmless unnecessary words must be deleted, then I am not just concerned, but wary.
    –rob

  5. So here’s a court decision in which a license was revoked using the language “public interest of the community” [my emphasis].

    In the Matter of the Application of, Soho Alliance, et al, Petitioners, against The New York State Liquor Authority
    SUPREME COURT OF NEW YORK, NEW YORK COUNTY
    2005 NY Slip Op 52253U; 10 Misc. 3d 1078A; 814 N.Y.S.2d 892; 2005 N.Y. Misc. LEXIS 3065; 234 N.Y.L.J. 120
    November 17, 2005, Decided
    this Court finds that the Authority’s Determination is arbitrary and capricious…Moreover….” Section 64 (6a) of the ABCL provides in relevant part:

    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 location, may consider a number of factors, including the effect of the grant of the license on vehicular traffic and parking in proximity to the location, the existing noise level at the location and any increase in noise level that would be generated by the proposed premises, and any other factors specified by law or regulation that are relevant to determine the public convenience and advantage and public interest of the community.[my emphasis]

    The plaintiffs, the SoHo Alliance, specifically argued to the court, as recorded in the decision, “that the legislative intent of the statute, as amended in 1993, imposes [*5] an affirmative obligation on the Authority to show that the public interest of the community will be served by approval of the license pursuant to ABCL § 64 (6-a) (f)

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