N.Y. Alcoholic Beverage Control Law § 106-b: Provisions for governing sports facilities operators and retail licenses to sell at certain sporting events for consumption on premises

* § 106-b. Provisions for governing sports facilities operators and

retail licenses to sell at certain sporting events for consumption on

premises. 1. (a) Every person who operates a facility for the

performance of a sporting event during which alcoholic beverages are

sold or otherwise furnished for consumption on such premises shall

establish nonalcoholic seating accommodations, separate from other

seating accommodations within such premises, wherein the sale,

possession or consumption of alcoholic beverages shall not be permitted.

(b) Nonalcoholic seating accommodations shall constitute not less than

six percentum of all permanent seating accommodations for a given

sporting event, unless otherwise provided for by this section, and shall

at such level be equally distributed among each separately designated

ticket price area.

2. (a) Every person who operates a facility for the performance of a

sporting event during which alcoholic beverages are sold or otherwise

furnished for consumption on such premises shall establish nonvending

seating accommodations, separate from other seating accommodations

within such premises, wherein the sale or other furnishing of alcoholic

beverages shall not be permitted, but where the consumption of such

alcoholic beverages shall not be prohibited.

(b) Nonvending seating accommodations shall constitute not less than

fifteen percentum of all permanent seating accommodations, in addition

to those seating accommodations segregated pursuant to subdivision one

of this section, and shall be equally distributed among each separately

designated ticket price area.

3. (a) Immediately upon the effective date of this section, each

facility operator shall designate not less than ten percentum of all

non-season ticket seating as either nonalcohol seating accommodations or

nonvending seating accommodations or both, and that such designations

shall thereafter remain in effect up to and until the commencement of

designations pursuant to paragraph (b) of this subdivision, or

designations pursuant to subdivision four of this section.

(b) The establishment of seating accommodations pursuant to

subdivisions one and two of this section may be implemented over a

period of three years from the effective date of this section, and in a

combination of nonalcoholic seating accommodations and nonvending

seating accommodations, that is consistent with the provisions of this

section, provided that

(i) designations of not less than one-third of the total seating

accommodations required pursuant to subdivisions one and two of this

section are made within one year of the effective date of this section;

however, such designation up to the first one-third of the total

nonalcohol seating accommodation may be designated in any ticket price

area, and

(ii) designations of an additional one-third of the total seating

accommodations required pursuant to subdivisions one and two of this

section are made by January first, nineteen hundred ninety-one; however,

such designation up to the second one-third of the total nonalcohol

seating accommodation may be designated in any ticket price area, and

(iii) designations of a final one-third of the total seating

accommodations required pursuant to subdivisions one and two of this

section are made by January first, nineteen hundred ninety-two.

(c) A facility operator may petition the state liquor authority for an

exemption from the provisions of subparagraphs (ii) and (iii) of

paragraph (b) hereof as they relate to nonalcohol seating if it can be

shown that the demand for such seating does not exceed the availability

under subparagraph (i) of paragraph (b) hereof. The state liquor

authority, in evaluating such petition, shall consider, among other

things, the availability of such seating, the promotion of such seating,

the method of merchandising tickets for such seating, and the location

of such seating sections within the overall seating available in a given

facility. In addition, the state liquor authority shall consider any

voluntarily instituted alcohol reduction plan which includes, but is not

necessarily limited to, the provision of low alcohol beer, the

limitation on the number of servings of alcoholic beverages, or

limitations on the size of such servings.

(d) Nothing in this section shall be construed as prohibiting facility

operators from relocating designated nonvending or nonalcohol seating

accommodations in each year, provided that each facility maintains the

levels of nonalcohol and nonvending seating accommodations provided for

in this section.

4. Notwithstanding any provision of this section to the contrary, a

facility operator shall be exempt from the provisions of subdivisions

one, two and three hereof, upon the filing of certification with the

state liquor authority that said operator prohibits the vending of

alcoholic beverages in all seating areas of such facility, and

furthermore provides non-alcohol seating accommodations in not less than

two percentum of the total permanent seating accommodations.

5. (a) For the purposes of preserving order and preventing offenses

against the laws of the state during the course of a sporting event, and

when otherwise authorized pursuant to the provisions of the criminal

procedure law and appropriate local legislation, the trustees or

directors of any corporation acting in the capacity of facility operator

and licensed to do business in New York, may apply from time to time to

the commissioner of police of the municipality within which the facility

is located for the appointment of special patrolmen, who, when

appointed, shall be peace officers with the same powers within such

facility as are set forth in section 2.20 of the criminal procedure law,

whose duty, when appointed, shall be to preserve order within the

facility operated by the applicant corporation, to protect the property

within said facility, with the authority to eject or arrest all persons

who shall be improperly within the facility or who shall be guilty of

disorderly conduct, or who shall neglect or refuse to pay the fees

prescribed by said corporation; and it shall be the further duty of said

special patrolmen, when appointed, to prevent all violations of law and

arrest any and all persons violating such provisions, and to process

such persons in accordance with the criminal procedure law. The

appointment of special patrolmen pursuant to this section shall not

supersede in any way the authority of peace officers or police officers

of the jurisdiction within which such facility is located, nor shall any

patrolmen be deemed by virtue of such employment an employee of said

municipality, or be entitled to any of the benefits arising from such

employment, and such special patrolmen may be terminated by the

commissioner at any time, without assigning cause therefore.

(b) The special patrolmen appointed and approved pursuant to the

provisions of this subdivision shall be the sole responsibility of the

applying corporate entity, and such entity shall indemnify and defend

the municipality for any and all liability arising from the acts or

omissions of such officers. In consideration of their appointment,

special patrolmen shall sign an agreement in writing releasing and

waiving all claim whatsoever against the police department or the

municipality for pay, salary or compensation for their services, or for

any other expenses connected thereto.

6. Each facility operator shall file with the state liquor authority a

plan of compliance with the provisions of this section, including but

not limited to a facility diagram or such other seating program,

indicating ticket price areas designated as nonalcoholic and nonvending

seating accommodations. This plan shall also include a description of

all policies and procedures instituted by the facility operator in

relation to the sale, consumption or limitation of alcoholic beverages.

7. (a) For the purposes of this section, "facility for the performance

of a sporting event" shall include any stadium, arena, ballpark, or

other indoor or outdoor athletic field complex in use during a

professional sporting event, and located within a standard metropolitan

statistical area having a population of one million or more as of the

most current decennial census as conducted by the United States

Department of Commerce, but shall not include facilities owned or

operated by an educational institution.

(b) For the purposes of this section, "facility operator" shall

include the primary tenant of a facility defined in paragraph (a) of

this subdivision. In those situations where the entity responsible for

operation and management of said facility is other than the primary

tenant, the person or persons so responsible shall constitute the

"facility operator." If no facility operator pursuant to this section

can be ascertained, then the facility owner shall also constitute the

facility operator. In any event, the designation of such facility

operator shall be included in all plans of compliance filed pursuant to

subdivision six of this section.

8. The state liquor authority shall promulgate rules and regulations

no later than January first, nineteen hundred eighty-nine, that provide

for notification of facility operators of such facilities and sellers of

alcoholic beverages at such facilities of the provisions of this section

and that provide for the conspicuous posting at such facilities notices

informing the public of the provisions of this section, indicating the

nonalcohol and nonvending seating accommodations designated pursuant to

this section, and the penalty for violating this section, and shall

promulgate such other rules and regulations in furtherance of the

provisions of this section.

9. The state liquor authority shall report to the governor and

legislature no later than February first, nineteen hundred ninety-three

on the compliance with the provisions of this section, any and all

administrative or enforcement actions taken under the authority vested

in it by the provisions of this section and the effectiveness of the

provisions of this section in reducing the occurrence of alcohol-related

incidents.

10. (a) Violation by a facility operator of the provisions of this

section or of the rules and regulations promulgated pursuant to this

section is a misdemeanor.

(b) Violation of any stadium plan enacted pursuant to this section or

the rules and regulations promulgated hereunder is a violation.

11. Severability. If any provision of this section shall be held void

or unconstitutional, all other provisions and all other sanctions not

expressly held to be void or unconstitutional shall continue in full

force and effect.

12. (a) Notwithstanding any provision of this section to the contrary,

a facility operator may reduce the total number of seats segregated as

non-alcohol seating as necessary to assure local television broadcast of

a particular sporting event when ninety-nine percent of all other

seating is unavailable, so long as the facility operator, prior to the

commencement of the sporting season, files with the state liquor

authority for a plan of reduction in the consumption of alcoholic

beverages that includes:

(i) restrictions in those areas that were to be segregated as

non-alcohol seating that exceed the limitations on non-vending, but

which do not prohibit the consumption of alcohol in toto;

(ii) the development of additional security personnel in those areas

that were to be segregated as non-alcohol seating, or such other areas

in which persons requesting non-alcohol seating are located; and

(iii) a plan of marketing, promotion, method of merchandising and

location of non-alcoholic seating, and a description of the seats to be

declassified as non-alcohol seats.

(b) The provisions of this subdivision shall apply only in those

instances where a facility is operated with two percent of its seating

segregated as non-alcohol seating in accordance with the provisions of

this section.

(c) In the event that a facility operator invokes the provisions of

this subdivision for its intended purposes, the facility operator shall

notify the state liquor authority at least three days before the

particular sporting event of the utilization of this subdivision, the

time period in which the provisions of this subdivision shall be in

effect, and certify that such utilization is based on the unavailability

of seating in all remaining sections of the facility.

* NB Expired Effective July 1, 1993