Frequent Violations of the ABC Law by Retailers

Common violations leading to disciplinary action
Frequent Violations of the ABC Law by Retailers
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Sale to Minor

It’s a crime to sell, deliver or give away alcoholic beverages to a person under the age of 21. As the licensee, you are subject to disciplinary action by the Authority whether you or your employee served the minor. It does not matter whether you thought the person was 21, if they lied about their age, or if they appeared to be at least 21 years old.

You are not only responsible for sales made directly to the minor, you are also responsible for “indirect deliveries," when a patron over 21 gives an alcoholic beverage to a minor.

The Authority strongly encourages licensees to ask for proof of age. Requiring customers to produce valid photo identification, together with verifying that the person providing you with the identification is the same person shown on the identification, will help you avoid violations and costly fines. The following forms of identification may be accepted:

  • Valid New York State driver’s license or a valid driver’s license from any other state or Canada;
  • Valid identification issued by the New York Department of Motor Vehicles (non-driver ID card);
  • United States military identification; and
  • Valid passport or visa from the United State government or any other country.

 

College or Sheriff’s Department identification cards are not acceptable as the primary means to determine a customer’s age. However, they can be used in addition to one of the acceptable forms of identification to verify information. You should ask for identification every time, even from a customer that has previously provided you with some proof of age.

When reviewing identification offered by a customer, you or your employees should check for:

  • tampered or fake documents;
  • the date of birth; and
  • whether the person has the same eye color, hair color, height, etc., as set forth in the identification.

 

Additionally, you should take the following steps to help prevent sales to minors:

  • Post “Date Born After” signs near all points of sale or service;
  • Have a written policy on what you expect from employees when making sales;
  • Establish an ongoing training and education program for all employees;
  • Encourage responsible drinking when advertising your establishment;
  • Support your employees when they refuse to make a sale; and
  • Consider purchasing a scanner device to verify that the identifications presented to you are valid.

 

A sale to minor is considered one of the most serious violations of the ABC Law. The Authority and law enforcement agencies throughout the State routinely conduct operations to monitor your compliance with the law. These operations may consist of investigators observing sales in your establishment or the use of underage agents.

To help prevent sales to minors in your establishment, the Authority recommends that all licensees and employees who serve or sell alcoholic beverages take an Alcohol Training Awareness Program. The Alcohol Training Awareness Program focuses on the legal responsibilities of selling alcohol and provides training in practical skills to help licensees and their employees avoid violations. These trainings are not only an effective way to prevent underage sales but, in the event the Authority charges you with a violation, proof that your staff has participated in training may reduce the penalty imposed.

Disorderly Premises

If you are an on-premises licensee, you must not allow your establishment to become disorderly. Disorder includes fights, disturbances, the use or sale of controlled substances, prostitution, lewd and indecent conduct and excessive noise. You have an obligation to exercise reasonable diligence and provide adequate supervision over the conduct of your licensed premises and your patrons.

The Authority strongly recommends that you contact your local police agency to respond to any disorderly incidents at your establishments. The fact that you call for police assistance will not be held against you when the Authority considers whether you exercised reasonable diligence and provided adequate supervision.

Here are some ways to prevent your premises from becoming disorderly:

  • Hire a licensed security guard or a manager (make sure this method of operation is approved by the Authority);
  • Call police when violence or disorder occurs at your premises and self report the incident to the Authority;
  • Close your premises at an earlier time;
  • Make sure all bartenders, servers and other employees who serve or sell alcohol are properly trained in preventing sales to intoxicated patrons; and
  • Spend more time at your licensed premises to ensure you are exercising adequate supervision.

Intoxicated Patrons

It is a crime to sell, deliver or give away alcoholic beverages to a person who is visibly intoxicated. As the licensee, you are subject to disciplinary action by the Authority whether you or your employee served a person who is visibly intoxicated. This applies to both on-premises and off-premises licenses.

To help prevent sales to intoxicated patrons in your establishment, you and all and employees who serve or sell alcoholic beverages should take an Alcohol Training Awareness Program. The Alcohol Training Awareness Program focuses on the legal responsibilities of selling alcohol and provides training in practical skills to help licensees and their employees avoid violations.

 

Unlimited Drink Specials

As a licensee, you are prohibited from selling, serving, delivering or offering to patrons an unlimited number of drinks during any set period of time for a fixed price. Licensees are also prohibited from creating drink specials which, in the judgment of the Authority, are attempts to circumvent the law. This includes offerings of free drinks, or multiple drinks for free or for the price of a single drink, or for a low initial price followed by a price increment per hour or other period of time.

This does not apply to private functions not opened to the public, such as weddings, banquets, or receptions, or other similar functions or to a package of food and beverages where the service of alcoholic beverages is incidental to the event or function. 

The Authority does allow 2 for 1 or half price specials where the price of a drink is not lower than one-half of the premise's regular price for the same drink.

Availing

Availing is when a person who was not disclosed to the Authority has an ownership or other financial/controlling interest in a licensed business. A licensee is responsible for violations committed by third parties who are availing the license.

Managers who oversee the business for the licensee are not availing the license. Availing occurs when the licensee turns control of the business over to an undisclosed party without any direction, supervision or oversight by the licensee, even if the undisclosed party does not profit from the use of the license. Availing may involve a failure to disclose an individual's interest in the business at the time the application is submitted to the Authority or failure to disclose the transfer of an interest. 

 

Evidence of availing includes:

  • an agreement giving ownership to an undisclosed party;
  • an undisclosed party receiving a percentage of the profits; and
  • bank accounts, records and other licenses/permits in the undisclosed party’s name.

 

An unauthorized corporate change is a version of availing where the licensed corporation or LLC stays the same, but the principals of the licensed entity, undisclosed to the Authority, change. If a new person/entity is operating the business, that is an availing. If the licensed corporation or LLC is still in control but with different (unapproved) principal(s), that is an unauthorized corporate change.

To avoid an availing charge due to an authorized corporate change, be sure to obtain approval from the Authority before making any corporate changes to your license.

 

 

Gambling

Gambling is prohibited in establishments with on-premises and off-premises licenses. Both professional and casual (or social) gambling is prohibited; it does not matter whether the licensee profits from the gambling.

In deciding whether an activity is gambling, the Authority will consider three questions. An answer of “yes” to each of these questions means that the activity will be considered to be gambling by the Authority:

  1. Is the activity a contest of chance?;
  2. Is the person giving something of value to participate?; and
  3. Is there something of value being offered as a prize?

Certain activities are not considered gambling by the Authority, including the sale of lottery tickets (with the appropriate state authorization), in addition to bingo, games of chance, and simulcast betting at on-premises licensed premises, provided that they are conducted with the appropriate state authorization. Not-for-profit organizations can conduct raffles under certain conditions without obtaining a license.

Extension of Premises

As a licensee, you are required to confine the service and consumption of alcoholic beverages to the area that is licensed.

When you submitted your application you provided the Authority with a description and diagram of that premises. You cannot use any unlicensed area for the sale or consumption of alcoholic beverages.

If you add an area that is not already part of your licensed premises, you must submit an alteration application and obtain the SLA’s approval. 

Failure to Conform

All licensees must conform with representations made in their application submitted to the Authority, all stipulations and conditions regarding the operation of the business and all local and state laws and regulations governing their operation.

If you are in violation of a state or local law or regulation, including health, fire and building codes, you could face disciplinary action by the Authority.

When you received your license, you agreed to comply with certain stipulations or conditions regarding the operation of your business and all representations that you made in the application. Those conditions and representations may have included your hours of operation, how many bars you have, or if you allow dancing and live music. You are required to comply with those conditions unless you obtain the Authority’s approval to operate in a different manner.

Make sure to obtain approval from the Authority before making any changes to your license or before changing the way you operate your business.