Relates to the powers of the chairman and the members of the authority; repealer

Summary of specific provisions

Section 1 of the bill would amend § 15 of the Alcoholic Beverage Control Law to remove from the members of the authority the power to hire employees, and to transfer the power of designating additional offices from the members of the authority to the chairman.

Section 2 of the bill would amend § 17 of the Alcoholic Beverage Control Law to clarify the authority's power to direct forfeiture of bonds; and to remove from the members of the authority the power to remove employ- ees, make budget and fiscal decisions, make required annual reports, and develop minimum criteria for the Alcohol Training Awareness Program.

Section 3 of the bill would amend § 18 of the Alcoholic Beverage Control Law to confer upon the chairman the power to hire and fire employees, make budget and fiscal decisions, make required reports, and develop minimum criteria for the ATAP Program.

Justification

In response to the New York State Law Revision Commis- sion's Report on the Alcoholic Beverage Control Law and its Adminis- tration ("Report"), this bill proposes amendments to implement a recom- mendation of the Commission.

Delegation of Exclusive Executive Power to the Chairman of the Authority

With respect to the powers of the Chairman, the Law Revision Commission ("Commission") recommended, in relevant part, as follows (Report, p. 25):

The ABC Law should be amended to grant the Chairman of the Authority exclusive executive authority over both the division of alcoholic bever- age control and the Authority, including the authority to hire, assign, and fire deputies, counsels, assistants, investigators and all other employees within the limits of the agency appropriation, in consultation with the other members of the Authority, removing all such responsibil- ity from the Authority.

ABC Law §§ 15 and 17 (4) currently delegate the power to hire and fire to the three-member State Liquor Authority acting as a Full Board. The Law Revision Commission noted that Full Board control over hiring and firing may well prevent employment decisions from being made where there is a vacancy on the Full Board and a disagreement between the two serv- ing board members (Report, p. 122):

Although by statute, the Chairman has administrative control, he does not have the power to hire and fire. The entire Board has to agree on an employment decision. If there were not unanimous agreement between the two current Commissioners, no employment decisions could be made.

Even where the Authority's Full Board is fully staffed with its three members, the Chairman's ability to take administrative action may be called into question by a challenge to the scope of his authority:

The multiple agency head (exercising administrative authority) could result in the Chairman being undermined if the other members disagree with him or her. For example, in 2008, two of the Commissioners disa- greed with certain actions of the Chairman so they voted to rescind previous-delegations of authority to the Chairman.

Sections 1 through 3 of the instant bill, in the first instance, seek to implement the Law Revision Commission recommendation that the Chairman be delegated exclusive administrative control over hiring and firing. These sections also make clear the scope of the Chairman's administra- tive authority over budget and fiscal matters, the submission of required reports, and the development of minimum criteria for the Alco- hol Training Awareness Program.

Delegation of administrative functions to the exclusive control of the Chairman does not diminish the regulatory powers exercised by the three- member Authority. The three members of the Authority, acting together as a Full Board, will continue to regulate alcoholic beverage traffic with- in the State. Briefly stated, section 17 of the Alcoholic Beverage Control Law will continue to empower the three-member Authority

1. To approve or disapprove license and permit applications.

2. To limit the number of licenses of each class to be issued within the state or any political subdivision thereof.

3. To revoke, cancel or suspend for cause any license or permit issued under this chapter and/or to impose a civil penalty for cause against any holder of a license or permit issued pursuant to this chapter.

4. To fix by rule the standards in the manufacture of alcoholic beverag- es to be sold or consumed in the state.

5. To hold hearings, subpoena and examine any person under oath, and require the production of any books or papers relative to the inquiry.

6. To prohibit during a period of a public emergency the sale of any or all alcoholic beverages.

7. To delegate the powers provided in this section to the chairman, or to such other officers or employees as may be designated by the chair- man.

8. To appoint advisory groups.

9. To approve or disapprove the request of a county legislative body to restrict or modify the legal hours of sale within such county.

Thus, while granting exclusive administrative authority to the Chairman, this amendment prudently preserves for the Full Board those functions best performed by a deliberative body, and those regulatory determi- nations involving broad policy considerations that are best left to a contemplative body.

Prior legislative history

None, this is a new bill.

Fiscal implications

None.

Effective date

September 15, 2010.