Thursday, May 21, 2009

When is a Bar "Overcrowded"?

As the warm weather approaches, New York City's bar scene will flourish. Whether sophisticated or raucous, bars are subject to a host of regulations from the Fire Department, the Department of Buildings, and the State Liquor Authority (SLA), not to mention Penal Law provisions regarding disorderly conduct.

The Appellate Division, First Department, divided today 3-2 on what constitutes substantial evidence that a bar is overcrowded in violation of SLA rules. Mtr. of 47 Ave. B. v. New York State Liq. Auth. In the view of the majority, testimony that patrons were standing "shoulder to shoulder" is an inadequate basis to find overcrowding and to revoke a bar's liquor license.

The bar's certificate of occupancy permitted 61 people in the cellar, and 135 on the first floor. The majority noted that the SLA investigator did not use a counting device, nor did he take an actual headcount of the people in the bar, so there is no way to determine whether the number of patrons exceeded the number permitted by the certificate of occupancy.  A "guesstimate," said the majority, is not substantial evidence.

In the dissent's view the investigator's estimate that there were 75 to 100 patrons in the bar's cellar, and patrons standing throughout the bar "shoulder to shoulder," together with a police officer summons that there were 300 patrons in the bar, is sufficient evidence to establish the claim of overcrowding. The majority noted, however, that the summons was unsworn and was dismissed in court, so all that is left is evidence that patrons were "shoulder to shoulder."

The "substantial evidence" test for reviewing administrative agency determinations calls for a minimum of judicial oversight of agency rulings which seriously affect livelihoods and licenses. Rejecting the "shoulder to shoulder" evidence is sound. As the majority observed, "It does not warrant further conjecture as to the consequences of finding every bar/restaurant in Manhattan to be in violation of the SLA Law based solely upon evidence that patrons were standing 'shoulder to shoulder.'" 

I'll drink to that.   

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