You just received a notice that you have to attend a 500 foot hearing. What is a 500 foot hearing anyway? In our previous article, we discussed some of the basics about these proceedings. In this second part of the 500 Foot Hearing series, we will look at an example statement that an applicant can submit at the hearing in support of his or her application. This statement will be made a public part of the application file which opponents, competitors and others will be able to view. Thus, it is important to keep your written statement succinct, on point and professional. Professional guidance can be very helpful in preparing these written statements.
When you submit these statements, you are representing to the Liquor Authority details about your establishment and method of operation. It is important that you accurately represent your plans. If the Liquor Authority learns that you are operating differently than you stated, it could lead to a disciplinary matter. How does the SLA tend to learn that you are operating differently? Tips or complaints by your competitors, opponents or disgruntled employees are a key source of information for the SLA. Once information is received, an investigation is undertaken to collect additional evidence and verify the information received. If you find yourself the subject of an investigation, it is a good idea to contact an experienced liquor license attorney to represent you. Losing your license can severely impact your business and the bottom line. Don’t risk this important business asset.
Below is a sample 500 Foot Hearing Statement. Each situation is different, and the relevant details discussed must relate to the factors that are present in your unique situation. This example statement is presented to help you better understand what one might look like and what might be presented to the Liquor Authority to help you obtain an on-premises liquor license.
ABC, Inc. doing business as XYZ Restaurant and Lounge
City Street, City, New York
Serial No. 123456789 – Application for On-premises Retail License
Statement for 500 Foot Hearing
Zone X Office of New York State Liquor Authority
Background of the Premises
XYZ Restaurant and Lounge is located in the downtown historic business district. The proposed premises are located on the corner of Main and Central Streets and has been used as a restaurant since 1977. Adjacent businesses on this block include a bakery, a tailor, a convenience store and a pizza shop. To add variety to the upscale food choices in the business district, Applicant purchased the commercial building to offer the hottest trends in cuisine and beverages. In keeping with the upscale gourmet trendy eatery, Applicant seeks a license to offer cocktails, wine and beer with its food.
Positive Impact
Over the decades of its existence, the historic business district has had a positive impact on the community, including the generation of additional revenue and employment. The variety of eateries has enhanced the quality of the neighborhood with its rich history and character. The opening of new eateries has continued to improve upon the quality of the neighborhood with the addition of unique gourmet dining experiences with upscale ethnic offerings that appeal to a wide audience. The historic business district has been beneficial to both commercial and residential neighbors, providing for an increase in tourism and enhancing the culture of the community. Applicant seeks a liquor license to add its ethnic food fare to the gourmet offerings in the neighborhood.
Legal Standard
ABC Law 64(7)(f) provides a discretionary exception to the rule that no retail liquor license for on-premises consumption may be granted for any establishment within five hundred feet of three or more existing liquor licenses. If after consultation with the municipality, it determines that granting such a license would be in the public interest, the SLA may grant an on-premise liquor license for an establishment which violates the 500 foot rule.
In determining whether the issuance of a liquor license would promote the “public convenience and advantage” and be in “the public interest” the SLA should consider:
(a) the number, classes and character of licenses in proximity to the location and in the particular municipality;
(b) evidence that all necessary permits have been obtained from the state and all governing bodies;
(c) the effect of granting the license on vehicular traffic and parking in proximity to the location;
(d) the existing noise level at the location and any increase in noise level that would be generated by the proposed premises;
(e) the history of liquor violations and reported criminal activity at the proposed premises; and
(f) any other factors specified by law or regulation that are relevant to determine the public convenience and advantage and public interest of the community.
Each of these factors will be addressed below.
Discussion
A. the number, classes and character of licenses in proximity to the location and in the particular municipality
The Applicant’s address is 123 Main Street. This building is a single tax parcel with just one deed and a single restaurant. This commercial property has been operating as a restaurant and bar since 1977 and was sold to Applicant with this commercial use on the street level. Applicant is not increasing the density of on-premises locations in the neighborhood, he is merely re-opening one that has been there for more than 35 years.
It is undisputed that there are more than three (3) on-premises establishments within 500 feet of the proposed premises. However, the neighborhood is commercial, consisting mostly of high quality retailers and eateries. The wealth of tourism in the area is motivated in part by the presence of the variety of unique retailers and eateries.
The vicinity within 500 feet of the premises already includes ABC directly across the street from Applicant’s premises. ABC serves wine and minimal food and is open Monday through Saturday from 5pm through Midnight. With 2 blocks is also XYZ, a casual restaurant offering a variety of New American cuisine and an upscale bar scene, and is open for dinner only Monday through Thursday 5pm until 12am, and Fridays and Saturdays between 5pm and 1am. Also on that block is Asia! an Asian restaurant serving Thai, Korean, & Japanese food and is open 11:30am to 10pm daily. It only has a beer and wine license. There is an American Legion a few blocks down which is essentially a club (non-public) bar (tavern) serving minimal food. It is not open daily to the general public and not styled or operating as a traditional bar or restaurant.
Applicant’s restaurant will be open 7 days a week from 10:00 AM to 2:00 AM. Applicant will offer take out at all hours and deliveries from 4pm to 10pm. Applicant’s menu, submitted with the application, reveals that it is operating as a true restaurant with several dozen entree and appetizer menu items ranging from pizza, tacos and burgers to pasta, sushi and ethnic fusion dishes. The cocktail menu is equally elaborate with a wide array of alcoholic and nonalcoholic beverage options.
B. evidence that all necessary permits have been obtained from the state and all governing bodies
Applicant presents testimony for the record, emphasizing that the restaurant will be a first class eatery featuring popular ethnic fusion food selections late into the night, and not a night club attracting a late night crowd.
Applicant is a responsible and legally compliant business and property owner. A copy of other permits needed to operate is submitted into the record, or proof that same was filed for and is currently pending, including the health department, zoning/building department and business licenses.
C. the effect of granting the license on vehicular traffic and parking in proximity to the location
In the application under consideration, the neighborhood is not oversaturated with bars and nightclubs.
Applicant’s premises have a capacity to accommodate 180 people, and will primarily serve food. A copy of Applicant’s menu has been submitted with the application.
There is no evidence of parking related issues on this block. There is ample parking, and there would be no notable impact on parking or traffic. As the former restaurant has had a steady volume of traffic over the years, there is no reason to expect any change in traffic patterns, parking or noise level upon the addition of this new restaurant in the same location. Many of the patrons will be neighborhood residents so traffic and parking are not a concern within the community. The premises are centrally located and are easily accessible by subway or bus.
D. the existing noise level at the location and any increase in noise level that would be generated by the proposed premises
The premises will have two outdoor dining patios, and consistent with regulations of the City, will be closed after 11 pm. The ambient noise level after 11 pm would be negligible since the restaurant only has light background music playing for its customers. Applicant’s premises do not feature live music. It will typically have karaoke music on Wenesdays which requires a volume low enough for the singer’s voice to be heard over the background recorded music.
There are no nightclubs operating on the block at this time. Again it is stressed that Applicant is operating a restaurant with a bar business, not a night club. There is no dancing or even a dance floor at the restaurant. Patrons will not be allowed to loiter, and cars would not be permitted to park illegally in the street in front of the premises. This will be enforced using both security guards at the main entrance/exit after 10 pm daily with additional coverage on weekend and busy nights. Applicant has also installed a video surveillance system that includes the premises exterior and clarity to capture license plate numbers of vehicles surrounding the licensed premises.
E. the history of liquor violations and reported criminal activity at the proposed premises
Applicant has presented a management plan evidencing that it will take proactive efforts to offer a more upscale, safer and cleaner experience and to avoid disturbances, violence, fighting, crime, noise, and litter. Applicant’s business will be owner operated. It is also a family establishment, catering to families and a young professional crowd. The owners-operators will be on the premises 50 – 70 hours per week.
Letters of support from Nearby College, Mayor of Nearby, the Downtown Improvement Corporation, and the Chamber of Commerce have been submitted for the record. These supporters attest to the quality of the eateries owned and operated by Applicant as well as the positive impact and good citizenship of his businesses in the local community. With an actual history of responsible operations at two other licensed premises, it is not reasonable to presume that Applicant will operate the proposed premises any differently and become a neighborhood problem.
Applicant submits for the record that the two owners have completed TIPS certification to ensure good management practices and training in handling rowdy and drunk patrons.
The Applicant has installed ID scanners to record the age, gender and time of entry/exit of its patrons. Applicant has also installed many surveillance cameras, including 5 on the exterior of the building, having no “dead spots” on the premises. Applicant has taken reasonable steps to ensure orderly operations of his establishment and to be able to identify and exclude problem patrons from the business.
Surveying the other local bar owners (licensees), there is currently no evidence of problems in the neighborhood since the former owner closed its business. The only disturbances they report are an occasional drunk patron who is asked to leave.
Most notably, the Applicant emphasizes that the proposed restaurant is not its predecessor, will not be like its predecessor, and should not be compared with it. Applicant is not a mere tenant in the commercial building, Applicant owns the building and has made a significant investment in the community. Applicant is operating the proposed premises.
Applicant has operated two prior licensed premises with an excellent record. There is no adverse activity on his liquor licenses. Applicant has chosen to sell his other active business to focus his entire attention and resources in the licensed premises. It is not reasonable to presume this establishment will be operated differently and will not be compliant with ABC and other applicable laws and regulations. The prior history of the premises, and any history of violations committed by the previous licensee, without a showing of an ownership interest between applicant and the former owner of the premises, or management of the former premises by Applicant or one of its principals, is insufficient to warrant disapproval of the application. Moreover, there is no factual support that the prior history of the premises created a degree of risk that would be continued by the applicant’s operation of its bar. Matter of 512-3rd St., d/b/a The Buzz v. New York State Liquor Authority, 217 A.D.2d 1010 (1995). In the Matter of Ha Ha Ha, Inc., d/b/a Mickey Rats v. New York State Liq. Auth., 262 A.D.2d 1008 (4th Dep’t 1999) makes clear that although the SLA has the discretionary power to deny an application “for good cause shown” [ABC Law 64(1)], such power may not cross the line into speculation and conjecture. The dysfunctional operation of a previous owner should not be imputed on a new liquor license applicant.
- F. any other factors specified by law or regulation that are relevant to determine the public convenience and advantage and public interest of the community
Main Street is a very active urban historic neighborhood with restaurants and shops as diverse as the people. The boutique shops are complemented by ethnic and trendy upscale eateries. The proposed license will serve to enhance the impact the gourmet eateries have had and continue to have on the neighborhood.
For all of the reasons set forth above, it is clear that the liquor license applied for with respect to 123 Main Street is in the public interest, convenience and advantage of the community. Accordingly, we respectfully request that the Authority grant the issuance of the On-Premises Liquor License to the Applicant.
________________________
John Smith, principal of Applicant