Enforcing Alcohol Law: NYC Fine Dining Restaurants

[docsconz]

Given the popularity of this topic, I wouldn't be surprised if we start seeing more reports of underage carding at fine dining restaurants or a report of a bust. It is getting harder to keep this issue discreet.

[Sneakeater]

If I recall correctly the base of the discussion was high end restaurants do not acknowledge the drinking age in New York

←

I didn't see anybody say that.

If you think that's what anybody said, I can see why you're so upset. But I really do think you've misunderstood the whole point.

Edited January 4, 2007 by Sneakeater (log)

[cdh]

If I recall correctly the base of the discussion was high end restaurants do not acknowledge the drinking age in New York

←

I didn't see anybody say that.

I think that is exactly what Bryan said, if not in so many words. He said that in his years of dining experience in New York's finer eateries, he's never before been refused service, and has actually had to turn away wine sales pitches.

In his own words

So, yes, he does have the law and all that on his side, but this has NEVER happened to me, and I eat out a ton. For one, I'm with my mommy, I'm not getting wasted. Secondly, back when I was like 17 or something I felt the need to aplogize to the wine captain at Cru for not ordering wine at a restaurant known for it because I was underage. He flat out said that the unofficial, official policy for good restaurants was one of don't ask, don't tell.

I think we've come to a consensus that drinking age laws are puritanical silliness and shouldn't be there... but they are there... and we're trying to come to terms with whether they should be obeyed for their own sake, should be ignored as the probability of anything bad occurring from breaking them is miniscule, or something in between.

Edited January 4, 2007 by cdh (log)

[robert40]

If I recall correctly the base of the discussion was high end restaurants do not acknowledge the drinking age in New York

←

I didn't see anybody say that.

I think that is exactly what Bryan said, if not in so many words. He said that in his years of dining experience in New York's finer eateries, he's never before been refused service, and has actually had to turn away wine sales pitches.

In his own words

So, yes, he does have the law and all that on his side, but this has NEVER happened to me, and I eat out a ton. For one, I'm with my mommy, I'm not getting wasted. Secondly, back when I was like 17 or something I felt the need to aplogize to the wine captain at Cru for not ordering wine at a restaurant known for it because I was underage. He flat out said that the unofficial, official policy for good restaurants was one of don't ask, don't tell.

I think we've come to a consensus that drinking age laws are puritanical silliness and shouldn't be there... but they are there... and we're trying to come to terms with whether they should be obeyed for their own sake, should be ignored as the probability of anything bad occurring from breaking them is miniscule, or something in between.

←

For a moment I was tempted to check the side affects on my meds. Thank you.

[Sneakeater]

I don't think what cdh said is quite what the people on my side of this issue have been saying.

I think that what everyone on my side of the issue has said is that the drinking laws aren't enforced against fine-dining restaurants in NYC, but rather the restaurants have been left to their own discretion. That because they've been good at exercising their discretion, they've continued to be left alone. And that, in this case, we thought this was a poor exercise of discretion (or rather a failure to exercise that discretion), to which we took exception.

Edited January 4, 2007 by Sneakeater (log)

[cdh]

Euphemisms are not helpful here. Discretion to do what?

[Sneakeater]

That's not a euphemism. Discretion to serve alcohol to minors.

You guys are ignoring that. You're saying that we're effectively saying, "There's no limit that applies to fine dining restaurants. They're free to absolutely ignore the drinking age." But that's not what we're saying. We're saying they're free to do things like serve liquor to accompanied minors. If they turned themselves into teenage drinking clubs, they'd be cracked down on like any other like business. You can see the difference, right? (Not a rhetorical question, but a real one.)

Edited January 4, 2007 by Sneakeater (log)

[BryanZ]

Tomorrow could be a very awkward day on so many levels. I will say that.

[cdh]

Now we're getting back to statutory construction again. Is the NY State booze law a law of general applicability, intended as such by the legislature, or is it a troubleshooting law meant to be applied only to solve a particular problem?

Is compliance with this law compulsory or optional?

In the old common law days, this sort of absolutist silliness would have been tempered by a judge who would have carved out an exception that the general rule does not appear to have. Are you suggesting that everybody today is qualified to take that judicial role and carve out exceptions cutting the old judicial wisdom out of the picture?

Judges are still doing it today... why not leave it to them? You'd not have a VCR today if the Supreme court hadn't carved a common sense shaped hole into the middle of the Copyright Act... and that was only 20ish years ago.

Edited January 4, 2007 by cdh (log)

[Jennifer F]

Both myself and my husband believe, "correct" or not, that the law is the law and to expect a restaurant to uphold otherwise is unrealistic and (we keep going back to) pompous. Thanks for the lively discussion - we enjoyed it over tapas!

[BryanZ]

Both myself and my husband believe, "correct" or not, that the law is the law and to expect a restaurant to uphold otherwise is unrealistic and (we keep going back to) pompous.  Thanks for the lively discussion - we enjoyed it over tapas!

←

Welcome to eG Jennifer.

Although this has been covered before, you'll have to forgive me for singling out your post in particular. I'm not sure if you've read the entire thread in detail, but I'm going to take issue with this statement because it is in direct conflict with statements that have already been made quite clearly and convincingly.

First of all, no one is really debating that the law exists on paper and people have been punished for breaking it. This isn't the issue.

Secondly, my "expectation" was derived from dozens of experiences over several years in the past. These events actually did happen and are directly applicable to the type of establishment we are discussing. These events justly created some sort of expectation that I would be served, since I had been met with 100% success in the past. I still acknowledge the expectation, however, of being denied. As I've noted, I often don't order wine when dining alone because this expectation outweighs the supposedly more insidious one.

(I keep going back to the fact that) I don't hold this against the restaurant, but to say my expectation of being served in this type of establishment is pompous is entirely unfair. Since you're from New York City, please humor me. If you crossed the street when it still said "Don't Walk," is this a pompous act? Under your reasoning, yes because it's brazen disregard for the law. Does that make all people who do this pompous? Is all disregard for law (because it is "the law") pompous? If so, I'm proud to fall under that category.

For those who have been intelligently engaged in this thread from its inception, I again note that we've covered these topics with great aplomb (love that word). I would simply like to hear the further reasoning of newer parties.

Edited January 4, 2007 by BryanZ (log)

[BryanZ]

In fact, the more I think about this issue, the more interesting it becomes.

Let's look at this from the server's perspective or, better yet, I'll put myself in his shoes.

First, if this guy cards everyone in his section under the age of the 30, more power to him. He's risking offending some customers, but that's his perogative and he does have the law on his side.

Similarly, if I was in his shoes, I might have done the same thing. Under the assumption he was new--and perhaps he was, as he served people in the same way I do, knowing what to do but lacking the fluidity to make it seamless--I would certainly be carding everyone. My first priority would be to keep my job, then worry about upholding my philosophical beliefs on largely anonymous web boards. After getting around in the industry and really seeing how things work from the other side, I might change my tune. Who knows?

I still maintain my perspective from the diner's perspective, given my long list of experiences, and continue to blame the hypocrisy of the industry and of the (lack of) enforcement agents. From a completly selfish standpoint, I'm a fan of how things have worked out in reality so far (ie. don't ask/don't tell), but that's not the point of this disccusiion.

Does this take a dump on my credibility, make me a realist or a spinless jellyfish? I'm not sure of the answer to that one either.

Edited January 4, 2007 by BryanZ (log)

[JeanneCake]

I've been reading this thread with interest over the last day or so; and by now I'm thoroughly confused about what the real issue is we're debating!

Having said that... I have to wonder: if BryanZ listed all the restaurants where he was served wine as an underage patron, and someone in authority was reading this and took that list, they'd be able to assign liability and penalties because after all, you have a minor acknowledging he'd been served. Is this application of the law different just because most of us think that a glass of wine with dinner does not in any way equate to drinking to get drunk that most minors are trying to do? This discussion has brought to light the fact that drinking alcohol while with a parent or guardian in a place of business is not distinguished in the letter of the law so sadly, either we work to change the law or we obey it. The places where underage minors have been served is playing the game that they won't get caught - and they might in the future, or they might not. It's a risk they are taking and only they can decide if it's worth it. But don't fault a restaurant who decides it isn't worth it! And if they start to legislate this, at what age do you draw the line? Ten? Twelve? Two?

Just like those of us who drive over the speed limit on a regular basis and don't get caught; or jaywalk and don't get caught - we're still breaking the law. Someday if and when we are caught, we shouldn't fuss about it just because we've been "doing this for years". And asking or expecting someone to give you a pass "just because" isn't right either. How is the server supposed to know that if he breaks the law on behalf of his employer, that you'll come back every week and spend more $ and expect to be served all those other times.

Everyone has a first day on the job (it might not have been the server's first day, I know) but you have to give people the benefit of the doubt when you can see they are new at their job. The next time the server is faced with this, he'll learn from his experience and handle it better.

In a few months (or at some point this year), it won't be an issue for BryanZ but it will still be an issue for someone else. Where are those legislators who are trying to ban trans fat and fois gras? Give them this to do!!

[Luckylies]

Now that I've read the whole thread, I'll throw some chips into the ring. When I was underage (3 years ago) I was Never Once carded in a fancy restaurant in New York. Ever.

If a restaurant "toed the line" in terms of it's fancyness, I usually knew better but would sometimes try my hand at a cocktail or glass of wine. No harm in asking...

Neither of my parents, would balk at a restaurant not serving me as a kid, but they would slip me sips if the wine was something I might be interested in. This only happened when we traveled, as there was never a need in the city. My first drink of wine (and subsequent drunkeness) was at a highly regarded bastion of french cuisine, that has since closed. The chef/ owner poured me the glass himself.

Have things changed? I'd venture to say no. I still look underage (perhaps I'm flattering myself...) but I get carded everywhere. It's funny though, I get carded in a liquor store (near Astor place) when I'm buying hard liquor, but when I decide to buy a case of nice wine...hmm nobody asks...

is it because I seem more sophisticated buying my fancy grownup wine then I would buying a handle of tequilla? perhaps.

All I know is this tradition in New York City has been this way for as long as I remember, but I fear things are changing for the worse.

Even in fine dining establishments the servers are being stripped of the ability to make personal judgement calls, in favor of scripted, lawfully adherent decisions. It's a shame.

[daisy17]

[(I keep going back to the fact that) I don't hold this against the restaurant, but to say my expectation of being served in this type of establishment is pompous is entirely unfair.  Since you're from New York City, please humor me.  If you crossed the street when it still said "Don't Walk," is this a pompous act?  Under your reasoning, yes because it's brazen disregard for the law.  Does that make all people who do this pompous?  Is all disregard for law (because it is "the law") pompous?  If so, I'm proud to fall under that category.

←

The crossing the street analogy is distinguishable from the issue at hand in so many ways. Here's just one: when you cross the street against a light the risk is yours to take. You can get a ticket or hit by a car, but you'd be the one who loses. When a restaurant serves you a glass of wine with dinner the risk is to many people but really not to you - it would be borne by the restaurant's owners, investors and employees. So it's a bummer that fine restaurants may not choose to serve alcohol to minors. And the laws suck, I think we all agree on that. But how does one get pissed off if a restaurant chooses to obey the law and not jeopardize its liquor license? That's the part I don't get. They have every right to evaluate the risk and decide not to take it.

[rich]

The thing that surprises me most is the number of lawyers who are criticizing a restaurant for adhering to the law.

I think the consesus is this is a bad, archaic law, but it is still the law. And as court officers, I thought lawyers were bound to uphold the law. Would any of the lawyers advise their restaurant-owner clients to adopt to a "don't ask, don't tell" policy with regard to serving alcohol to underage patrons? I don't think said lawyer would be in business for long and may not have her/his license for long.

I understand the concept of "not enforced in high-end restaurants," but no one knows what the situation was at EMP that night or nights previous. It's possible some elected official or high ranking law enforcement official was there. It's possible they heard some city inspectors were making the rounds during the holiday season. It's even possible they were given a warning by someone.

But whatever the case, to criticize any establishment for deciding the uphold the law (thereby protecting themselves for fine/punishment etc.), even if it's for one night or one holiday season, is absurd.

[Sneakeater]

I hope it won't sound too pompous for me to say this, but I'm taking a break from this thread because I think anything more I'd say would just be repetitious.

I'm only saying this out loud so nobody thinks I'm rude or anything for not participating or responding further.

Edited January 4, 2007 by Sneakeater (log)

[MelissaH]

OK, here's one:

Once upon a time, I was an underage college student who liked to cook. I learned much about cooking from my mother, who didn't hesitate to make coq au vin and other dishes involving wine, usually with me watching or helping, and often with me eating the results. So when I moved into my first apartment and finally had a stove, I decided one day to make my own coq au vin.

You can see where this is going: if one is underage and cannot buy a bottle of wine, one cannot make coq au vin (or many other wonderful dishes that are great for a student lifestyle: make on the weekend, eat the rest of the week).

I was fortunate in that I had cooperative friends who shall remain nameless. I'd send them out with some cash and instructions, and they'd come back with no cash but a bottle. I did not go to the store myself, because if I did, both of us would be carded and they wouldn't sell if anyone in the group was not of age. It was better to send the friend alone.

Since I was underage, I of course did not drink any of the wine. The whole bottle generally went into the pot, minus maybe a glass for the friend-of-age, who also got a dinner out of the deal—and it wasn't uncommon for me to ask the friend-of-age to actually open the bottle and add it to the pot, more than anything because I still hate screwing around with corks to this day.

Obviously, this is at least a little bit wrong, because I (an underage consumer) used an alcoholic beverage, albeit one that had long been cooked out by the time any of it crossed my lips. Had anyone asked my friend about the end purpose for the wine, they could have been in big trouble because they were purchasing it for me, an underage consumer. We all got lucky: nobody asked, I got my wine, we all ate well, and nobody got arrested. (I don't know if anyone could have been arrested for this without someone asking some questions that would make me, at least, very angry. And if it takes place in the privacy of someone's home (my own apartment, one NOT owned by a university) is it even questionable under right-to-privacy laws?

The question: is it any different to do something a little bit wrong, like this, compared to doing something blatantly unlawful, such as being underage yet ordering and drinking a glass of wine in a restaurant? Does violating the law in a subtle way do anything to negatively impact those who *do* follow all the laws, and wait to make coq au vin until they are old enough to buy their own wine?

MelissaH

[JohnL]

OK, here's one:

Obviously, this is at least a little bit wrong, because I (an underage consumer) used an alcoholic beverage, albeit one that had long been cooked out by the time any of it crossed my lips. Had anyone asked my friend about the end purpose for the wine, they could have been in big trouble because they were purchasing it for me, an underage consumer. We all got lucky: nobody asked, I got my wine, we all ate well, and nobody got arrested. (I don't know if anyone could have been arrested for this without someone asking some questions that would make me, at least, very angry. And if it takes place in the privacy of someone's home (my own apartment, one NOT owned by a university) is it even questionable under right-to-privacy laws?

The question: is it any different to do something a little bit wrong, like this, compared to doing something blatantly unlawful, such as being underage yet ordering and drinking a glass of wine in a restaurant? Does violating the law in a subtle way do anything to negatively impact those who *do* follow all the laws, and wait to make coq au vin until they are old enough to buy their own wine?

MelissaH

←

Forgive me if I say something that has already been said (I read most of the thread but don't have time to slog through the whole thing).

I think there are two levels at play--one broad and the other narrow.

First--Alcohol consumption is a privilege it is not a right. It is similar to driving a car. We have determined that there should be age limits/restrictions which ensure the safety of all of us. We can quibble with the age restriction--should it be eighteen or twenty one or whatever.

I think most of us would agree that allowing a ten year old to drink or drive a car is not a good idea. Yes it is difficult to differentiate between a nineteen year old and a twenty one year old but if we agree that a line should be drawn then splitting hairs over a year or two one way or the other is --well--splitting hairs.

Second--It is not just the restaurant that would break the law in BryanZ's case it would also be his parents and Bryan himself. It is illegal for a minor to possess alcohol and for anyone to facilitate that possession. thus both he and his parents were putting the restaurant in an awkward position by passing the burden to them.

Third--The crime is a misdemeanor, no one is going to jail here. For Bryan and his parents we are talking a likely dismissal with a warning or at worst a fine. If the authorities even caught them and prosecuted them--highly unlikely.

The restaurant stands to lose more--their license to serve/sell alcoholic beverages. Unless they have been caught and successfully prosecuted for doing this a number of times in the past--they would also receive a warning and/or a fine.

The truth is most restaurants are not targeted for enforcement of drinking age laws. A Seven Eleven or a liquor store--places where these laws are more likely to be broken and with more serious consequences--are much more likely to be targeted by law enforcement.

As for the use of wine in cooking situation. Technically, this is wrong and from a moral standpoint it is in a gray area (depends upon one's morals) I think most everyone would see no problem morally with an underage person cooking with wine and even if this were somehow prosecuted I doubt we are looking at serious prison time!

By the way, if doing this bothered someone's conscience then I don't see why they can't just wait until legal age to make Coq au vin or do any serious flambe-ing. Or have an adult buy the wine for them. Sheesh!

By the way, it would be a more serious breach of the law if they were cooking with trans fats!!!!

In the end--Bryan and his parents should realize that they put the restaurant in a bad position and accept any action or non action. This whole thing to me is no big deal--I can't really fault them or the restaurant--we are in a gray area morally and the legal enforcement system probably wouldn't look at this as a big deal either--as it relates to them. However, we have only heard one side of this. I don't know if Bryan looks twenty one or fourteen. I also do not know what the restaurant's policy here is or if perhaps they have a reason to be sensitive to underage drinking on their premises. Suppose this was not wine but a round of bourbon and sodas. suppose Bryan's parents allow him to become a little inebriated and he falls on the way to the bathroom and hurts himself or worse another patron. Suppose he, being old enough to have a permit to drive , drives his parents home and.... The point is one can understand any restaurant being more than a little uncomfortable with people they do not know and actions they can not predict nor control. I understand all of this is highly unlikely and I certainly have no problem with anyone's actions in this case--don't ask don't tell is probably fine but I have a hard time faulting the restaurant's actions either.

[Kouign Aman]

These events justly created some sort of expectation that I would be served,

I have a problem with the word "justly", which implies justice is on your side. "Not surprisingly", or "naturally" would work better for me. Particularly as you are aware of the law.

I think you should not be disturbed, tho you might have been surprised, that the waiter would not serve you. He should be gracious. Sounds to me like he tried to be, if awkwardly so.

[Nathan]

MelissaH: I find it highly unlikely that someone bringing you a bottle of wine to go into coq a vin would be liable for anything -- cause they weren't bringing you alcohol.

I too am going to leave this thread because I've come to the conclusion that either a. sneakeater, bryanz and myself are incompetent at making our points clear; or b. there is a wilful lack of reading comprehension on the part of some posters. Every point I see raised has been already addressed up the thread.

but to reiterate one last time:

a. the law is not as hidebound to technicalities as lawyers think.

b. would I as a lawyer advise a client in certain situations that certain regulations almost certainly wouldn't be applied in certain contexts. Absolutely yes. Believe me this comes up in complex, multi-jurisdictional transactions all the time. It has to. Is this advising a client to "break the law"...absolutely not. It is giving a realistic assessment so the client can make their own decision how best to comply. If you can't see the distinction there is no way you could ever manage a complex business.

c. true upscale NY restaurants aren't taking a risk. why? first, I would be flabbergasted if any decision was ever made to go after places that might serve wine to an accompanied minor once a week or even once a month. second, is such an absurd decision were made, I have a hard time believing that a warning first wouldn't be issued. third, one under-age citation is not going to close a restaurant...let alone one frequented by the city's rich and powerful. again, we're not talking about college hangouts. fourth, the moment one fine-dining (and in this context I mean this in a very rarified sense -- EMP class or higher...and we should probably exclude the MP area establishments (as Sneakeater already noted) as they are known to draw a younger crowd....and, well, a crowd that drives) establishment gets a citation, they'll all start carding.

one final note: as I've already said, I don't see how a restaurant would be busted anyway. if BryanZ posted a list of restaurants that served him wine -- they'd be pissed off, but it wouldn't be proof of anything. they're going to have to catch them in the act. no one's going to raid Per Se folks. I don't care if Ray Kelly is sitting at a table and sees BryanZ and his mom at the table next to him getting wine. BryanZ doesn't look 12. someone who looks 20 could easily be 24. Kelly's not going to call up the LCB, he doesn't even know if BryanZ hasn't already been discreetly carded. and he's certainly not going to have a uniformed officer called in and horribly embarass BryanZ and his mom by having them carded in front of the entire restaurant.

This is going to sound snobbish, but if you don't ever eat in this class of restaurant, you might not understand how laughable this scenario is.

last night I did a poll of fellow denizens of the city -- ok, it was a self-selected sample -- all lawyers, none of them foodies. every single one thought the idea of a 20 year old accompanied by a parent getting carded at a very-high-end restaurant to be patently absurd. Frankly, I'll take their opinion over anyone who doesn't live in the city.

[JohnL]

Now we're getting back to statutory construction again.  Is the NY State booze law a law of general applicability, intended as such by the legislature, or is it a troubleshooting law meant to be applied only to solve a particular problem? 

Is compliance with this law compulsory or optional?

In the old common law days, this sort of absolutist silliness would have been tempered by a judge who would have carved out an exception that the general rule does not appear to have.  Are you suggesting that everybody today is qualified to take that judicial role and carve out exceptions cutting the old judicial wisdom out of the picture? 

Judges are still doing it today... why not leave it to them?  You'd not have a VCR today if the Supreme court hadn't carved a common sense shaped hole into the middle of the Copyright Act... and that was only 20ish years ago.

←

"Leave it to the judges????"

We could have long and arduous debate over this one. I got a long list of horrendous judicial decisions made by unelected people over stepping the constitutional limits and "legislating."

In this case, the law is pretty self limiting. First the crime (if any) is a misdemeanor Second law enforcement is not spending much time going after fine restaurants and underage drinkers with parents present.

"Absolutist silliness"--???

Yes, a judge would probably toss this one out but it wouldn't ever get that far. Law enforcement wouldn't waste their time. I got news for you--this one would never get to trial.

[Nathan]

"As for the use of wine in cooking situation. Technically, this is wrong and from a moral standpoint it is in a gray area (depends upon one's morals) I think most everyone would see no problem morally with an underage person cooking with wine and even if this were somehow prosecuted I doubt we are looking at serious prison time!"

I would be flabbergasted if any liquor law on its surface covered using wine in cooking. Why? it's not the consumption of alcohol.

[slkinsey]

First--Alcohol consumption is a privilege it is not a right. It is similar to driving a car. We have determined that there should be age limits/restrictions which ensure the safety of all of us. We can quibble with the age restriction--should it be eighteen or twenty one or whatever.

I don't think I agree with this at all. I suppose one may say that the government of the United States has decided to take the position that alcohol consumption outside of one's home is a privilege rather than a right. But I don't agree that it's anything like driving a car at all. There is no reason whatsoever that the government should be sticking their nose into what I drink in the privacy of my own home. I think it's also worthy of note that the only reason we have a legal drinking age in this country at all is a combination of the aftereffects of the misguided temperance movement and a desire to reduce drunk driving accidents (with respect to the latter, I should hasten to point out that the same effect could be achieved by lowering the drinking age to 18 and raising the minimum age requirement for a driver's license to 21).

Certainly I plan to introduce my children, when I have them, to reasonable amounts of alcohol quite early in their lives. This is commonplace in many countries. In Belgium, for example, it is not unusual for children as young as 5 years old to have a small glass of low-alcohol beer (tafelbier) with a meal. There was even a program in Belgian schools to replace soft drinks with tafelbier!

[Nathan]

"or if perhaps they have a reason to be sensitive to underage drinking on their premises. Suppose this was not wine but a round of bourbon and sodas. suppose Bryan's parents allow him to become a little inebriated and he falls on the way to the bathroom and hurts himself or worse another patron. Suppose he, being old enough to have a permit to drive , drives his parents home and...."

this paragraph evinces why if you don't live here you're not going to understand the arguments.

"Yes, a judge would probably toss this one out but it wouldn't ever get that far."

actually, I disagree with this. if a valid citation was issued, it wouldn't be tossed by a court. it might not be prosecuted and simply used as a warning..but it wouldn't have to be. its not that the restaurant wouldn't be violating the law, it's that it wouldn't be cited in the first place.

now, I really am going to leave the thread. this is getting pointless.

Edited January 4, 2007 by Nathan (log)