§ 49.1 Conduct of licensed bottle clubs

The proper conduct of licensed bottle clubs is essential to the public interest. [To insure and promote adequate personal supervision by responsible licensees, no more than one such license shall be issued to any person and no such license shall hereafter be issued to any person who is interested in any other licensed premises as a licensee, member of a licensed partnership or as an officer, director or substantial stockholder, (10 percent or more) of a licensed corporation; and no other license shall be issued to or held by any person who is interested in any licensed bottle club as a licensee, a member of a licensed partnership or as an officer, director or substantial stockholder thereof.] Failure of a bottle club licensee to exercise adequate supervision over the conduct of such an establishment poses a substantial risk not only to the objectives of alcoholic beverage control but imperils the health, welfare and safety of the people of this state. It shall be the obligation of each person licensed pursuant to Alcoholic Beverage Control Law Section 64-b to ensure that a high degree of supervision is exercised over the conduct of the licensed establishment at all times in order to safeguard against abuses of the license privilege and violations of law. Each such licensee will be held strictly accountable for all violations that occur in the licensed premises and are committed by or suffered and permitted by any manager, agent or employee of such licensee. Each such licensee must ensure that a high degree of supervision is exercised over the conduct of the licensed premises at all times in order to safeguard against abuses of the license privilege and violations of law and must ensure that the licensed premises complies with all applicable building codes, fire, health, safety and other government regulations.

§ 49.4 Physical standards

No bottle club license shall be issued for any premises except where the premises comply with all statutory requirements and, in addition, meet the following physical standards:

[2.](a) Each such premises, unless located in an airport or in a railroad or bus terminal, shall be located at street level with all entrances opening onto a public street or thoroughfare, except that such entrances may be set back from and need not abut such street or thoroughfare.

[3. Each such premises shall have one or more windows at least four feet in length and two feet high and shall be so constructed as to afford clear visibility from the exterior and throughout the interior of said premises.

4. No such premises shall have any back room, or any window back, partition or other obstruction which obstructs visibility into or prevents a full view of the entire room by every person present therein except such necessary storage space as may be approved by the authority.

5.](b) Each such premises shall be under the exclusive dominion and control of the licensee and the service and consumption of alcoholic beverages shall be confined thereto.

[6. Only one permanently affixed bar for the service of alcoholic beverages shall be permitted in any such premises. Such bar shall be in an area where seating at tables is provided for patrons. No permanently affixed bar for the service of alcoholic beverages direct to consumer shall be permitted in any such premises where the over-all length of the bar, measured along its outside perimeter, exceeds a ratio of three feet of bar for each seat provided at tables.

7.](c) Each premises licensed hereunder shall have [separate sanitary facilities for both sexes] a minimum of two public restrooms. The requirement for such facilities may be waived by the Authority provided there is a satisfactory showing that such facilities are in an area adjacent or proximate to the licensed premises and available to the patrons thereof.

[8.](d) Each premises licensed hereunder shall at all times during the hours such premises is open for business, be illuminated by sufficient light such as will permit a person therein to read nine-point print of the kind generally used in the average newspaper. Nothing herein contained shall, however, be construed as prohibiting temporary dimming of lights during a period of regular entertainment or other special occasions.

[9.](e) Each premises licensed hereunder shall have seating for patrons at tables. [Seating at tables shall be no less than one seat for each three feet of bar measured along the outside perimeter of the bar.]

§ 49.9 Prohibitions

(a) No bottle club licensee shall suffer or permit any gambling on the licensed premises or suffer or permit such premises to become disorderly.

(b) No bottle club licensee shall deliver, serve or give away or permit or procure to be delivered, served or given away any alcoholic beverage to (1) any minor actually or apparently under the age of [18] 21 years or to (2) any intoxicated person or to any person apparently under the influence of any alcoholic beverage; nor shall he or she permit any such person to consume any alcoholic beverage in the licensed premises.

(c) [No minor actually or apparently under the age of 18 years, shall be permitted in such premises unless accompanied by a parent or guardian or an adult person authorized by a parent or guardian.

(d)] No [retailer] bottle club licensee shall employ, or permit to be employed, or shall suffer to work, on any premises licensed hereunder, any person under the age of 18 years, as a hostess, waitress, waiter, or in any other capacity where the duties of such person require or permit such person to dispense or handle alcoholic beverages.

([e]d) No [retailer] bottle club licensee shall permit or suffer to appear as an entertainer, on any premises licensed hereunder, any person under the age of 18 years. Failure to restrain such a person from so appearing shall be deemed to constitute permission.

([f]e) No bottle club licensee shall [purchase,] sell [or give away] any alcoholic beverages on the licensed premises.

([g]f) No bottle club licensee shall suffer or permit any alcoholic beverages to be brought into the licensed premises, or consumed therein, other than alcoholic beverages purchased by the licensee to give away to customers for on premises consumption, unless the container shall bear the signature of the person bringing such liquor into the premises or unless there is attached thereto a label signed by such person.

([h]g) No alcoholic beverages other than alcoholic beverages purchased by the licensee to give away to customers for on premises consumption, shall be stored, kept or received on the licensed premises nor consumed therein unless labeled as herein required.

[(i) No liquor shall be stored, kept or received on the licensed premises which shall belong to the licensee or any employee, servant or agent.]

([j]h) No licensee shall suffer or permit any alcoholic beverages brought into the premises to be taken therefrom by the owner thereof or any other person but shall store the same in the name and for the use of such owner.

([k]i) No licensee shall suffer or permit any illicit alcoholic beverage or spurious liquor to be brought into, stored, kept or consumed on the licensed premises. For the purposes of this rule illicit alcoholic beverage means and includes any alcoholic beverage on which any tax required to have been paid under any applicable federal law has not been paid. Spurious liquor means and includes liquor in containers, the contents of which are not as represented on the labels affixed thereto.

§ 49.10 Lockers

For licensees that choose to allow customers to bring their own alcoholic beverages on the licensed premises for consumption, [L]lockers shall be provided by the licensee for the use of persons frequenting the licensed premises so that alcoholic beverages owned by each person may be securely kept under lock and key. Any alcoholic beverages not being actually used or consumed by the owner thereof shall be kept in a locker designated to the use of such person. A separate locker shall be assigned to each person applying for the same and the licensee shall not permit more than one person to use a single locker. All alcoholic beverages brought into the licensed premises shall be the personal property of the owner thereof and shall be consumed only by himself and his guests accompanying him. The locker assigned to each person shall be under the control of such person and alcoholic beverages may be removed therefrom only by the owner to whom the locker has been assigned or by an employee of the licensee at such times when the owner of the locker is in the licensed premises and requests such service.

§ 49.11 Premises open to general public

Premises for which a bottle club license has been issued shall be open to the general public. The term “bottle clubs” is not restricted to “clubs” as defined under section 3(9) of the Alcoholic Beverage Control Law.

§ 49.13 Application of Part

(a) This Part shall become effective forthwith.

(b) [Each license issued hereunder shall be subject to the licensee continuing to conform with all representations set forth in the application for the license and the provisions of this Part and any amendment thereof. Such representations shall constitute continuing representations for the life of the license and all renewals thereof. Any change or deviation therefrom in any material respect without the permission of the Authority shall be cause for the institution of proceedings to revoke, cancel or suspend such license or refusal to renew the same.

(c)] Whenever the word licensee is used herein, it shall mean and include an individual licensee, each member of a partnership licensee, each officer, director and substantial stockholder of a corporate licensee, [or the spouses of any of the foregoing persons,] and any agent, employee or servant of such licensee.

Statutory authority:

These proposed regulations updating the rights, responsibilities, and procedures of Bottle Club licensees are issued pursuant to Alcoholic Beverage Control Law (“ABCL”) § 64-b are being issued by the State Liquor Authority (“Authority”) and would appear as amended Sections 49.1, 49.4, 49.9, and 49.10 and would also repeal Sections 49.2, 49.3, 49.5 and 49.8 and Subdivision 49.13(b) of Title 9, Subtitle B, of the New York Codes, Rules and Regulations (N.Y.C.R.R.).

These regulations are issued pursuant to the following:

ABCL § 64-b, which authorizes the Authority to promulgate rules and regulations for Bottle Club licensees.

Legislative objectives:

Changing the public policy underpinnings of the ABCL to be more business friendly where possible was recommended by the New York State Law Revision Commission in their 2009 Report on the Alcoholic Beverage Control Law and its Administration, which included recommendations of “supporting economic growth, job development, and the state’s alcoholic beverage production industries and its tourism and recreation industry…provided that such activities do not conflict with the primary regulatory objectives of promoting the health, welfare and safety of the people of the state, and promoting temperance in the consumption of alcoholic beverages.” In that effort, and as part of an overall effort to modernize the Authority’s rules and regulations the Authority hereby seeks to update its bottle club license rules to make them easier to understand and abide by for industry members and regulators alike. These regulatory proposals would thus help the Authority promote the health, welfare and safety of the people of New York by: clarifying the state policy regarding the responsibility of bottle club licensees to exercise proper supervision over their premises; repealing several outdated or duplicative rule provisions relative to requisite books and records, hours of operation, personal qualifications and ownership interests of applicants; and generally modernizing the language utilized throughout this Part.

Needs and benefits:

These regulatory proposals will help modernize administration of the ABCL, and promote the health, welfare, and safety of the people of New York by: clarifying the state policy regarding the responsibility of bottle club licensees to exercise proper supervision over their premises; repealing several outdated or duplicative rule provisions relative to requisite books and records, hours of operation, personal qualifications and ownership interests of applicants; and generally modernizing the language utilized throughout this Part.

Costs:

There will be no increased costs to local municipal governments as a result of these proposals, as local municipalities play no role in regulating bottle club licensees. Additionally, there will be no increased costs to industry members or to the Authority as a result of these proposals since there are no new responsibilities being added to those of bottle club licensees, the rules governing same are merely being clarified and paired down. Due to the above, there will be no added costs to the Authority, to local governments or industry members as a result of the implementation of the proposed rule amendments.

Local government mandates:

None. Local governments play no role in regulating bottle club licensees outside of the same local health code and zoning enforcement that they exercise for every business and there are no policy changes being implemented via these proposed reforms.

Paperwork:

The proposed rule amendments impose no new paperwork requirements on industry members or Authority staff.

Duplication:

There is no federal or municipal level involvement in licensing of retail alcoholic beverage businesses.

Alternatives/Federal standards:

Since there is no federal or municipal level involvement in licensing of retail alcoholic beverage businesses, no alternative standards were considered to the proposed regulatory reforms.

Compliance schedule:

The period of time the industry will require to enable compliance is likely to be negligible as these proposed regulatory reforms merely seek to modernize the language utilized for bottle club licensees and since there are no new requirements being imposed upon bottle club licensees via these proposals. As a result there are no policy changes being introduced via these rule proposals the Authority expects to be compliant immediately upon adoption.

The proposed amendments to Sections 49.1, 49.4, 49.9, and 49.10 as well as the repeal of Sections 49.2, 49.3, 49.5 and 49.8 and Subdivision 49.13(b) of Title 9, Subtitle B, of the New York Codes, Rules and Regulations (N.Y.C.R.R.) would clarify the state policy regarding the responsibility of bottle club licensees to exercise proper supervision over their premises; repeal several outdated or duplicative rule provisions relative to requisite books and records, hours of operation, personal qualifications and ownership interests of applicants; and generally modernize the language utilized throughout this Part. The amendments, by their very nature, would not impose an adverse economic impact on small businesses or local governments, and would not impose reporting, record keeping or other compliance requirements on small businesses or local governments. Because it is evident from the nature of the proposed amendments that they will have no adverse impact on small businesses or local governments, no further steps were needed to ascertain those facts and none were taken by the Authority. Accordingly, a full regulatory flexibility analysis for small businesses and local governments is not required for any of the proposed amendments and none has been prepared.

The proposed amendments to Sections 49.1, 49.4, 49.9, and 49.10 as well as the repeal of Sections 49.2, 49.3, 49.5 and 49.8 and Subdivision 49.13(b) of Title 9, Subtitle B, of the New York Codes, Rules and Regulations (N.Y.C.R.R.) would clarify the state policy regarding the responsibility of bottle club licensees to exercise proper supervision over their premises; repeal several outdated or duplicative rule provisions relative to requisite books and records, hours of operation, personal qualifications and ownership interests of applicants; and generally modernize the language utilized throughout this Part. The amendments, by their very nature, would not impose an adverse impact on facilities in rural areas, and would not impose reporting, record keeping or other compliance requirements on facilities in rural areas. Because it is evident from the nature of the proposed amendments that they will have no adverse impact on rural areas, no further steps were needed to ascertain those facts and none were taken by the Authority. Accordingly, a full rural area flexibility analysis is not required for any of the proposed amendments and none has been prepared.

The proposed amendments to Sections 49.1, 49.4, 49.9, and 49.10 as well as the repeal of Sections 49.2, 49.3, 49.5 and 49.8 and Subdivision 49.13(b) of Title 9, Subtitle B, of the New York Codes, Rules and Regulations (N.Y.C.R.R.) would clarify the state policy regarding the responsibility of bottle club licensees to exercise proper supervision over their premises; repeal several outdated or duplicative rule provisions relative to requisite books and records, hours of operation, personal qualifications and ownership interests of applicants; and generally modernize the language utilized throughout this Part. The amendments would not impose any new or additional compliance requirements and no new professional services would be required to comply with the proposed rule amendments as these proposals merely seek to modernize the language utilized for bottle club licensees without adding any new requirements or making any policy changes for bottle club licensees hereby. As a result, the proposed amendments will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendments that they will have no impact on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken by the Authority. Accordingly, a job impact statement is not required for any of the proposed amendments and none has been prepared.