Enforcing Alcohol Law: NYC Fine Dining Restaurants

[johnder]

The ABC law for New York State states:

§ 65. Prohibited  sales. No person shall sell, deliver or give away or cause or permit or procure to be  sold,  delivered  or  given  away  any alcoholic beverages to

    1. Any  person,  actually  or apparently, under the age of twenty-one years;

    2. Any visibly intoxicated person;

    3. Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.

    * 4.  Neither  such  person  so refusing to sell or deliver under this section nor his employer shall be liable in any civil or criminal action or for any fine or penalty based upon such  refusal,  except  that  such sale  or  delivery  shall not be refused, withheld from or denied to any person on account of race, creed,  color  or  national  origin.  In  any proceeding  pursuant  to subdivision one of this section, it shall be an affirmative  defense  that  such  person  had  produced  a  photographic identification  card apparently issued by a governmental entity and that the alcoholic beverage had been sold, delivered or given to such  person in  reasonable  reliance  upon  such  identification.  In evaluating the applicability of such affirmative defense, the authority shall take into consideration any written policy adopted and implemented by  the  seller to  carry  out  the  provision  of  paragraph  (b) of subdivision two of section sixty-five-b of this article.

    * NB Effective until January 1, 2008

    * 4. Neither such person so refusing to sell  or  deliver  under  this section nor his employer shall be liable in any civil or criminal action or  for  any  fine  or penalty based upon such refusal, except that such sale or delivery shall not be refused, withheld from or  denied  to  any person  on  account  of  race,  creed,  color or national origin. In any proceeding pursuant to subdivision one of this section, it shall  be  an affirmative  defense  that  such  person  had  produced  a  photographic identification card apparently issued by a governmental entity and  that the  alcoholic beverage had been sold, delivered or given to such person in reasonable reliance  upon  such  identification.  In  evaluating  the applicability of such affirmative defense, the authority shall take into consideration  any  written policy adopted and implemented by the seller to carry out the provision  of  paragraph  (b)  of  subdivision  one  of section sixty-five-b of this article.

    * NB Effective January 1, 2008

    5.  The  provisions of subdivision one of this section shall not apply to a person who gives or causes to be given any such alcoholic  beverage to  a  person  under  the age of twenty-one years, who is a student in a curriculum licensed or registered by the state education department  and is  required to taste or imbibe alcoholic beverages in courses which are part of the required curriculum, provided such alcoholic  beverages  are used  only  for instructional purposes during classes conducted pursuant to such curriculum.

    6. In any proceeding pursuant to section one hundred eighteen of  this chapter  to  revoke,  cancel  or  suspend  a  license  to sell alcoholic beverages at retail, in which proceeding it is  alleged  that  a  person violated  subdivision  one  of  this section, it shall be an affirmative defense that at the time of such violation  such  person  who  committed such alleged violation held a valid certificate of completion or renewal from  an  entity  authorized  to give and administer an alcohol training awareness program pursuant to subdivision twelve of section seventeen of this chapter.  Such  licensee  shall  have  diligently  implemented  and complied with all of the provisions of the approved training program. In such  proceeding  to  revoke,  cancel  or  suspend a license pursuant to section one hundred eighteen of this chapter, the  licensee  must  prove each element of such affirmative defense by a preponderance of the credible evidence. Evidence of three unlawful sales of alcoholic beverages by any employee of a licensee to persons under twenty-one years of age, within a two year period, shall be considered by the authority in determining whether the licensee had diligently implemented such an approved program. Such affirmative defense shall not preclude the recovery of the penal sum of a bond as provided in sections one hundred twelve and one hundred eighteen of this chapter.

Section 65.3 means that I should not be drinking in a few places in NYC myself as I have worked up that repuration.

[rich]

I faced the same problem with my niece in Arlington, VA two years back. She was 19 and wanted a glass of wine with dinner. I ordered a bottle and the waiter didn't put a glass in fron of her. When I aksed he said he couldn't serve her. I agreed.

I got up from the table, picked up a wine glass from a cabinet and poured her the wine myself. The restuarant didn't serve her the wine, didn't bring her a glass - it was all on me. Legally the restaurant was not liable. They can't prevent an adult from giving wine to any other person at a table if the person ordering the wine is legal.

The problem is the glass. If a restaurant serves a glass of wine, then they are pouring and serving. The solution is order the bottle and have the adult get the glass and pour the wine. The restaurant is clear, but they do have the right to refuse service if they feel it necessary.

With all the "inspectors" walking around NYC businesses thses days. I think the waiter and/or management was correct in not serving a glass of wine to an under age client.

[robert40]

Really is important to me that I stress again that if I was having dinner with Bryan I would not think twice about ordering wine and his drinking it.

But it would be foolish of me to ignore that there is some risk involved no matter how small.

Edited January 2, 2007 by robert40 (log)

[slkinsey]

Rich, I'm curious: That's an interesting idea, but are you sure there is any legal basis for thinking that the restaurant is in the clear so long as you procure the glass and pour the wine? As I understand liquor laws and liability, the restaurant could still get into plenty of trouble for turning a blind eye. I'm sure, for example, that the restaurant would not be free of liability had you proceeded to order a half dozen Martinis and pour them into your niece's water glass for her to drink.

[Sneakeater]

I agree with all Sam's posts here -- including (I'm sorry to say) that last one.

Edited January 2, 2007 by Sneakeater (log)

[Sneakeater]

I'm 50 and look like I'm 1000. A few years ago I was carded going into Hogs & Heifers (don't ask why I was going in there). The same laws apply to EMP as to Hogs & Heifers, but if you think they're treated remotely the same way by the regulatory authorities, you don't do much business in New York.

(And, I should add, there's nothing wrong with that. The regulators are being intelligent.)

Edited January 2, 2007 by Sneakeater (log)

[jsmeeker]

I'm 50 and look like I'm 1000.  A few years ago I was carded going into Hogs & Heifers (don't ask why I was going in there).  The same laws apply to EMP as to Hogs & Heifers, but if you think they're treated remotely the same way by the regulatory authorities, you don't do much business in New York.

←

It's still a risk they are taking, though. The way they are treated now or by most inspectors may change one day.

If an underage person gets away with something like this at a place like EMP, enjoy it it as a little bonus in your young life. Again, it doesn't bother me they get served. They aren't a bad person. The parents aren't bad people for allowing it. The server isn't a bad *person* for allowing it to happen. But they are putting the liquor license at risk. That's not something you should *EXPECT* to happpen or demand have happen.

[Daniel]

That's not something you should *EXPECT* to happpen or demand have happen.

In a fine dining restaurant in New York City, it is something I expect to have happen..

[Megan Blocker]

I'm 50 and look like I'm 1000.  A few years ago I was carded going into Hogs & Heifers (don't ask why I was going in there).  The same laws apply to EMP as to Hogs & Heifers, but if you think they're treated remotely the same way by the regulatory authorities, you don't do much business in New York.

(And, I should add, there's nothing wrong with that.  The regulators are being intelligent.)

←

True, many bars (who obviously have much higher risks when it comes to underage drinkers than, say, EMP or USC) alleviate the issue by carding every single person at the door, no matter how old they do or don't look. I suppose I'm still in the window where carding is legit (27), but my mom (56) gets carded when she comes with me to a pub, too.

[Nathan]

yup. I find it highly unlikely, just looking at the relevant text above, that a restaurant could avoid liability in the manner Rich mentions.

at the same time, however, I agree that the unofficial and unwritten policy in fine dining establishments is one of "don't ask, don't tell" since the odds of a true fine dining establishment being raided is nonexistent.

edit: as for bars -- ones that are "college" bars seem to card everyone...others most certainly do not. others card only on the weekends when the customer, um, demographic, changes.

Edited January 2, 2007 by Nathan (log)

[jsmeeker]

That's not something you should *EXPECT* to happpen or demand have happen.

In a fine dining restaurant in New York City, it is something I expect to have happen..

←

you may be accustomed to it happening, but I don't think that means you should really be shocked and UPSET if it doesn't.

Ehh... Whatever, though. I'm well past legal drinking age, so it's no matter for me. And yes, there have been occasions in the past where I "got lucky" and was served while underage. But I never *expeected* it. (then again, I didn't goto a lot of fine dining restaurants in NYC)

[Sneakeater]

I'm 50 and look like I'm 1000.  A few years ago I was carded going into Hogs & Heifers (don't ask why I was going in there).  The same laws apply to EMP as to Hogs & Heifers, but if you think they're treated remotely the same way by the regulatory authorities, you don't do much business in New York.

←

It's still a risk they are taking, though. The way they are treated now or by most inspectors may change one day.

If an underage person gets away with something like this at a place like EMP, enjoy it it as a little bonus in your young life. Again, it doesn't bother me they get served. They aren't a bad person. The parents aren't bad people for allowing it. The server isn't a bad *person* for allowing it to happen. But they are putting the liquor license at risk. That's not something you should *EXPECT* to happpen or demand have happen.

←

I would certainly not demand it. But I'd expect it.

I also disagree with you that they're taking a risk, if you define "risk" as meaning something that actually has a chance of happening.

(Finally, I don't think it's the server who's "allowing" it to happen. It's the restaurant, top down. As Sam said earlier, this is no secret from anyone involved, from the proprietor on down. Nobody's claiming that the waiters are -- or ought to be -- sneaking drinks to minors behind management's back.)

(One more "finally." I don't view this AT ALL as a "young person" "getting away with" something. I view this as an aspect of civilized living -- which the regulators apparently recognize as well. I think that viewing it as "getting away with" something is, in fact, the problem.)

Edited January 2, 2007 by Sneakeater (log)

[Nathan]

a couple years ago the police sent a couple very-young-looking plainclothes cops into Cafe Habana and then arrested the bartender when they were served alcohol.

of course, it was actually just a pretext to pressure the restaurant owner into doing more to stop the purse-stealing which was a regular occurrence there. after the owner received his scare, they dropped the charges. I don't see anyone trying that sting at EMP (nor do I find it likely that EMP has a purse-stealing issue)

my point is that of course the police and liquor authorities practice discretion in how they pursue this.

[robert40]

I believe we all are in agreement that the risk may be minimal.

Next question. Should we expect to be served no matter how minimal the risk and withhold gratutity from a server if he/she chooses not to?

[Sneakeater]

Expect, yes.

Withhold gratuity, I don't think so. Not totally, anyway. If I thought it was the decision or work of the server rather than the policy of the restaurant, though (as appears to be the case here), I'd probably leave 15% instead of 20%.

Edited January 2, 2007 by Sneakeater (log)

[robert40]

I never thought for a moment that EMP was ever at risk of being raided. But it never needs to be that complicated in life. Just the wrong person at the wrong time dining at the next table is sometimes all it takes.

[jsmeeker]

I'm 50 and look like I'm 1000.  A few years ago I was carded going into Hogs & Heifers (don't ask why I was going in there).  The same laws apply to EMP as to Hogs & Heifers, but if you think they're treated remotely the same way by the regulatory authorities, you don't do much business in New York.

←

It's still a risk they are taking, though. The way they are treated now or by most inspectors may change one day.

If an underage person gets away with something like this at a place like EMP, enjoy it it as a little bonus in your young life. Again, it doesn't bother me they get served. They aren't a bad person. The parents aren't bad people for allowing it. The server isn't a bad *person* for allowing it to happen. But they are putting the liquor license at risk. That's not something you should *EXPECT* to happpen or demand have happen.

←

I would certainly not demand it. But I'd expect it.

I also disagree with you that they're taking a risk, if you define "risk" as meaning something that actually has a chance of happening.

(Finally, I don't think it's the server who's "allowing" it to happen. It's the restaurant, top down. As Sam said earlier, this is no secret from anyone involved, from the proprietor on down. Nobody's claiming that the waiters are -- or ought to be -- sneaking drinks to minors behind management's back.)

(One more "finally." I don't view this AT ALL as a "young person" "getting away with" something. I view this as an aspect of civilized living -- which the regulators apparently recognize as well. I think that viewing it as "getting away with" something is, in fact, the problem.)

←

By "getting away" with something, I'm not making some sort of moral or ethical judgement against the young person. Far from it. I don't at all disagree that having a glass or two or three of wine over the course of a multi course meal at a place like EMP is a VERY civilized affair. That's not the issue. Rather, I mean they are somehwat openly flaunting that something that IS the law. Would it happen at the local TGI McFunster's?? Where do YOU draw the line? Cleary, the *laws* of New York State say there is one to be drawn. At what point is it "OK" to have your line in a different spot than theirs?

It's easy for us who don't run a restaurant and don't have a liquor license on the line to debate this. As mentioned before, I am glad I don't have this burden on what to do place upon me. (My tendancy is to say I'd *want* to look the other way, but I'd be nervous about it and I as I was looking away, I would probably looking over my shoulder for the liquor control board guys)

[Sneakeater]

I never thought for a moment that EMP was ever at risk of being raided. But it never needs to be that complicated in life. Just the wrong person at the wrong time dining at the next table is sometimes all it takes.

←

That's the point.

The people behind the laws eat out just like everybody else. They KNOW what's going on. The fact that there's NEVER (in memory) been any enforcement of these laws at a high-end restaurant is a good indication that the risk isn't there in any significant way.

Edited January 2, 2007 by Sneakeater (log)

[Nathan]

for what it's worth, I would imagine that the liquor board would need actual citations for underage drinking to do anything.

so, yeah, it kind of would take a raid or sting operation...I think.

[Sneakeater]

By "getting away" with something, I'm not making some sort of moral or ethical judgement against the young person. Far from it.  I don't at all disagree that having a glass or two or three of wine over the course of a multi course meal at a place like EMP is a VERY civilized affair.  That's not the issue.  Rather, I mean they are somehwat openly flaunting that something that IS the law.  Would it happen at the local TGI McFunster's??  Where do  YOU  draw the line? Cleary, the *laws* of New York State say there is one to be drawn. At what point is it "OK" to have your line in a different spot than theirs?

It's easy for us who don't run a restaurant and don't have a liquor license on the line to debate this. As mentioned before, I am glad I don't have this burden on what to do place upon me.     (My tendancy is to say I'd *want* to look the other way, but I'd be nervous about it and I as I was looking away, I would probably looking over my shoulder for the liquor control board guys)

←

Let me put it this way. I'm a lawyer (not in this industry). It's my job, not just to advise my clients what the laws are on the books, but how they're likely to be applied. My clients can then make informed judgments about what to do. I'm not talking about corruption or anything like that, but rather about giving fair due to the way the law is applied in reality. We're not talking about normative line-drawing here (about what should be). We're talking about the fairly commonsense approach that actually is taken. Moreover, it's striking that virtually everybody in the industry seems to understand this. It's extremely rare -- I'd have said unheard of, but maybe Daniel can tell me differently -- for an accompanied at-least-mid-to-late-teenage minor to be refused wine in a high-end NYC restaurant. On the other hand, it's probably rare for wine to be served to minors in lower-end places. The proprietors of the high-end restaurants aren't daredevils, and the proprietors of the lower-end places aren't scardeycats. They all just know the system, and have evaluated the risks.

Edited January 2, 2007 by Sneakeater (log)

[jsmeeker]

By "getting away" with something, I'm not making some sort of moral or ethical judgement against the young person. Far from it.  I don't at all disagree that having a glass or two or three of wine over the course of a multi course meal at a place like EMP is a VERY civilized affair.  That's not the issue.  Rather, I mean they are somehwat openly flaunting that something that IS the law.  Would it happen at the local TGI McFunster's??  Where do  YOU  draw the line? Cleary, the *laws* of New York State say there is one to be drawn. At what point is it "OK" to have your line in a different spot than theirs?

It's easy for us who don't run a restaurant and don't have a liquor license on the line to debate this. As mentioned before, I am glad I don't have this burden on what to do place upon me.     (My tendancy is to say I'd *want* to look the other way, but I'd be nervous about it and I as I was looking away, I would probably looking over my shoulder for the liquor control board guys)

←

Let me put it this way. I'm a lawyer (not in this industry). It's my job, not just to advise my clients what the laws are on the books, but how they're likely to be applied. My clients can then make informed judgments about what to do. I'm not talking about corruption or anything like that, but rather about giving fair due to the way the law is applied in reality. We're not talking about normative line-drawing here (about what should be). We're talking about the fairly commonsense approach that actually is taken. Moreover, it's striking that virtually everybody in the industry seems to understand this. It's extremely rare -- I'd have said unheard of, but maybe Daniel can tell me differently -- for an accompanied at-least-mid-to-late-teenage minor to be refused wine in a high-end NYC restaurant. On the other hand, it's probably rare for wine to be served to minors in lower-end places. The proprietors of the high-end restaurants aren't daredevils, and the proprietors of the lower-end places aren't scardeycats. They all just know the system, and have evaluated the risks.

←

That's fine.

This has been a very interesting disucssion, to say the last. I appreciate your inisght on it.

[-sheila mooney]

just lived thru this in philly -- my daughter is going on 20. in paris you are served if you look like you are over 16; in montreal 18 is legal. but we don't (she doesn't) relish the prospect of being turned down when she orders a glass of wine... so i told her to just order up in a downtown wine bar (no names, no names!), as well as in a cool small plates place. at amada, she abstained, having been identified by her well-meaning godmother as "the little miss") -- but i shared my tempranillo with her. big bummer: she had to pass on an invitation to a friend's b-day party held at North Bowl where we were informed that only 21-plus were admitted after 9.

back home in montreal we found the usual young usa crew stocking up in the state stores for new year's eve......

[rich]

Rich, I'm curious:  That's an interesting idea, but are you sure there is any legal basis for thinking that the restaurant is in the clear so long as you procure the glass and pour the wine?  As I understand liquor laws and liability, the restaurant could still get into plenty of trouble for turning a blind eye.  I'm sure, for example, that the restaurant would not be free of liability had you proceeded to order a half dozen Martinis and pour them into your niece's water glass for her to drink.

←

Of course Sam if you went to the extreme, the restaurant would be liable. But if you got the glass, poured the wine yourself the restuarant wouldn't be liable. It was a case in Ohio (I think) and the restaurant was found not responsible. It also helped the person who poured the wine testified on the restaurant's behalf.

It's really not much different than the don't ask, don't tell philosophy that several have ordained.

Restaurants need to be very careful these days - a lost liquor license is disasterous.

[moosnsqrl]

Let me toss another consideration into the mix. Understanding we've determined there is a difference in the letter of the law (which is quite clear) and its application so we don't have to go back over that . . .

If an establishment that operates under a liquor license in our area is found in violation of the terms of that license there is typically a fine involved as well as a mandatory number of days that they are required to shut down. Often they can choose the days to minimize the adverse economic affect but there is, nonetheless, a penalty not only to the house but to every employee who would ordinarily have worked a shift on the days they are forced to close. When you consider this, I think it's a bit of a risk to ask all of those people to take (especially those who are living on the margin to begin with) for someone to enjoy wine with their meal. I know I would feel terrible if I inadvertently caused all of the staff at one of my local haunts to lose income in a situation like that.

Again, I get that the thrust of this is that it's unlikely to be noticed, enforced or punished. But if the consequences potentially affect that many people (and here, they would), does that shed a new light on it?

[As an aside, I was individually charged with a license violation back in my poor college student days (not under-age drinking, rather a matter of some of the beers served at a bar/restaurant were 3.2% and subject to cereal malt law rather than liquor law, and therefore had to be off of the tables/bars by midnight) so I know what it is like to find yourself in a situation like that without knowingly breaking a law.]

[H. du Bois]

Given the legacy of the iron-fisted Giuliani administration, which closed down many of the city's clubs and bars for minor infractions of ancient and obscure city regulations (i.e., we don't have a real night life here anymore), I wouldn't blame anyone on a restaurant's staff for erring on the side of caution where state liquor licenses are concerned - the loss of one could break a business.

That said, I came of age when the New York State drinking age was 18, which seemed reasonable enough at the time. That a 20 year old in the company of his mother cannot drink a glass of wine at a respectable establishment is ludicrous to me. After all, Bryan, you are eligible for the draft, are you not?