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OFF-PREMISES CATERING ESTABLISHMENTS

Governor Hochul signed into law an amendment to New York’s Alcoholic Beverage Control Law (“ABCL”)  that creates a license for an off-premises catering establishment. Before this amendment, only on-premises catering licenses were available. An applicant had to provide a premise suitable for no fewer than 50 people. This amendment is memorialized in the new ABCL Section 64-e.

The applicant must have suitable and adequate facilities to provide food for not fewer than fifty people, but it need not provide on-premises space for customers. In fact, under this license, on-premises alcohol service is forbidden at the licensed premises.  Rather, the off-premises catering establishment is permitted to provide food and beverages for a function at a suitable remote location for which the New York State Liquor Authority (“SLA”) has issued a caterers permit under Section 98 of the ABCL. 

ABANDONED PREMISES

With limited exceptions, only one license can exist at a time at any licensed premises. Before the SLA will issue a new license, any prior license for the premises must be surrendered. Sometimes, a prior licensee will move out or close down, but not surrender its license. In a new advisory adopted at the January 4, 2023 Full Board Meeting, the Authority notified the Industry that it will allow a new license to be issued for such a premise, if the applicant can provide proof, satisfactory to the SLA, that the prior licensee abandoned the premise. The burden is on the applicant to demonstrate the abandonment.

An applicant can demonstrate abandonment by providing an affidavit from the property owner stating that the current licensee is no longer in physical and legal possession of the premises, and there are no legal proceedings pending regarding the current licensee’s right of possession. If possible, the applicant should include additional documentation, such as an eviction notice and/or a written statement from the current licensee surrendering the premise.

It is worth noting that even with such an affidavit, the SLA will attempt to contact the current licensee to determine whether it disputes the claim that the premise has been abandoned.

LIVING WITH YOUR CHOICES

In a new advisory adopted at the same meeting, the Members reiterated that the SLA will not get involved in disputes among the principals of licensees. When an applicant notifies the SLA of its business form and lists its principals, it is also agreeing that certain people have the right and power to speak for the licensee and to surrender the license.

If the licensee is a partnership, any listed partner has that power. Similarly, the power lies with the listed officers of a corporation as well as the managing member or non-member manager or officer of a limited liability company. When a club obtains a license, an ABC Officer is named, and that is the person with that power.

Sometimes, when there is a falling out among the principals and litigation ensues, one of the parties surrenders the license. In that case, the SLA will deem the license surrendered and the business will not be allowed to sell alcoholic beverages. Even a court order may be of no avail unless the SLA is made a party to the litigation. Principals should choose the people with whom they do business well. As always, it is best to plan for the rainy days when the sun is still shining.

NEW WAGE REQUIREMENTS

As of January 1, 2023, the minimum wage in New York State rose from $13.20 to $14.20. However, the minimum wage may differ based upon the location and type of employee. In New York City, Long Island and in Westchester, the minimum wage is $15 per hour.  New wage requirements also apply to food-service workers, which include employees primarily engaged in serving food or beverages to guests and who regularly receive tips, such as wait staff and bartenders as well as service employees, who do not qualify as food-service workers but who customarily receive tips above a set threshold. On- and off-premises licensees should know the minimum wage requirements that apply to their employees.

This article is not intended to give specific legal advice.  Before taking any action, the reader should consult with an attorney familiar with the relevant facts and circumstances.

Written by

Keven Danow

Keven Danow

Founding and Senior Partner
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