Volume 73, Number 33 | December 17 - 23, 2003


With lawsuits and bus convoy, residents are taking it to S.L.A.

By Jessica Mintz

In New York City, when a restaurant, bar, club or cafe decides it wants to serve alcohol to its patrons, it must apply for a license with the New York State Liquor Authority. Before that happens, though, the applicant must notify the local community board. Depending on the board, the owners may have to appear in person to answer to the neighborhood’s concerns. The board’s stamp of approval — or disapproval — is sent up to the S.L.A. in Albany, where it is one factor among many the authority considers when deciding whether to grant the liquor license.

Another factor that Downtown neighborhoods know well is the “500-foot rule” (also called the Padavan Law, for the state senator who supported it). When a new establishment opens within 500 feet of three or more on-premise liquor license holders and intends to apply for a liquor license, it has to go an extra mile, and attend an extra hearing — a so-called 500-foot-rule hearing — to prove to the S.L.A. that its presence, as stated in the state’s Alcoholic Beverage Control laws, will be “in the public interest.”

Despite the seeming safeguard this process provides, some community boards, especially in neighborhoods where bars and residences share increasingly crowded blocks, are frustrated by what they characterize as a saturation of bars and the S.L.A.’s seeming indifference to it.

Kyle Merker, chairperson of Community Board 5, which includes Union Sq., the Flatiron District and Gramercy, is so frustrated that he’s organizing citywide — making phone calls and sending “blast faxes” to other community boards — to garner support for a special springtime trip to Albany where he hopes they will be able to raise awareness among the city’s elected officials on the state level that the existing liquor license laws just aren’t working.

“They [the S.L.A.] always find it in the public interest,” says Merker. “They found this loophole. The intent of the law was to stop the concentration” of bars in residential areas.

According to Merker, the Manhattan Borough Board, comprised of all the community board chairpersons, passed a resolution earlier this year asking the S.L.A. to do its job enforcing the 500-foot rule.

“If there was more of a movement, maybe we can get some traction,” says Merker. “I called every single one of the community boards in all five boroughs…and spoke to the district manager or the community board chairperson in all five boroughs. Every single board said, ‘We have the same trouble with the S.L.A.’”

Merker hopes that his efforts will “culminate in a lobbying day in Albany in the spring where, since all the community boards are having this sort of frustration…maybe what we need to do is get Upstate and explain to assemblymen and state senators that these are big problems.”

The S.L.A., says Merker, “is accountable to no one.… There should be a way for people to arbitrate without the S.L.A. being the arbitrators,” but the only option he sees is to sue the authority, which takes a lot more money than most community groups have.

The Flatiron Alliance, an exception, is suing, but from the sound of it, their lawsuit is more of a cautionary tale — one that alliance members agree is a “very long story.” They’ve taken on the S.L.A. in the courts over its decision to issue, and then reissue, a liquor license to what was once the infamous Limelight club, now called the Avalon, located on Sixth Ave. near 20th St.

The lawsuit, says Susan Finley, vice president of the alliance, and Philip Byler, their counsel, is over whether the S.L.A. actually took the public’s interest into consideration during the 500-foot rule hearing for the club. The story is full of twists and turns — new judges on the case, new owners in the club, hearings scheduled for the day after Labor Day and a bureaucratic bog-down after 9/11 — but, says Byler, “No way, no how should that license have been issued.”

Papers submitted to the courts by Byler on behalf of the Flatiron group note both that the neighborhood has well over 100 liquor-licensed premises, and that over the last two decades, the Limelight has been a magnet for drug dealing, brutal violence and even white-collar crime — clearly, according to Byler and Finley, not a spot they consider to be “in the public interest.”

And the court case? Still in bureaucratic limbo.

A group of East Villagers is also raising money to sue the S.L.A. for permitting the area to become over-saturated by bars.

Another residents’ lawsuit several years ago had an impact. The precedent-setting case saw Soho residents file an Article 78 lawsuit challenging the S.L.A.’s granting of a liquor license for 72 Grand St. The S.L.A. lost and the granting of the liquor license was overturned.

Former Councilmember Kathryn Freed, who joined the Soho Alliance in the lawsuit, recalled, “We had 80 speakers testifying and the only speakers in favor were the engineer and the attorney for the applicant. The [S.L.A.] board granted the license in less than two minutes. I walked out of there thoroughly outraged and said, ‘I’m going to sue.’ ”

The judge ruled that the community’s view “has to be given weight” at a 500-foot rule hearing and that the S.L.A. had failed to do so. Freed noted that no one has applied for a liquor license within 500 feet of that location since the ruling.

Another outcome of the victory was that the S.L.A., in general, seemed to be more vigilant in handing out new licenses and in enforcing the law as residents would like to see it. But, the effect only lasted a year, according to Merker, and the situation promptly returned to normal.

But while community boards and neighborhood groups see the 500-foot rule as a way to protect neighborhoods from becoming over-saturated with bars and clubs, the S.L.A. and advocates for those bars and clubs see things differently.

“Basically, the 500-foot rule requires the authority to consult with the community board before it issues a license to an applicant — it’s a consultation to get the community’s view. The community does not have veto power,” says Thomas G. McKeon, counsel to the S.L.A. “They make a recommendation, which the authority considers.”

The S.L.A., says McKeon, “takes into consideration all the information presented to it — traffic reports, complaints that we have about other establishments in the area, whatever information is presented at the hearing is considered.… We try to address each application on merits of application, taking into consideration all concerns of the community and applicant.”

According to McKeon, the S.L.A. is doing the best it can to enforce the laws on the books. It isn’t the place of the community boards, he argues, to do things like impose moratoriums on liquor licenses in their neighborhoods.

The East Village’s C.B. 3, for one, however, has imposed moratoriums on new liquor licenses, including on Avenue A and St. Mark’s Pl., among others.

Robert Bookman, counsel to the New York Nightlife Association, said the idea of community board-imposed moratoriums has no basis in law.

“Say the areas [in question] are zoned for bars or clubs, so we’re not going to approve them? What [community boards are] asking [the S.L.A.] to do is to ignore the law that they are there to enforce. Even the 500-foot law did not put a cap on the number of licenses. That’s what people want — they want a cap on the number of licenses in their neighborhood. The S.L.A. is a state agency, not a neighborhood agency. It’s all part of one state, and part of one economy,” says Bookman.

The problem, Bookman says, “is not an S.L.A. problem, it’s a zoning issue. The goal of zoning is to separate certain types of uses. Admittedly, late-night use and residential use are not a good mix.… In the last 20 or 30 years, gentrification throughout Manhattan [means we’re seeing] areas of the city where residences are becoming lawful in areas that are nightlife areas. And it creates this conflict.”

What communities are responding to — loud, unruly after-hours patrons spilling out onto the streets — is an issue, says Bookman, but not one for the S.L.A. to handle. And it’s not really one for the bars and nightclubs to handle, either, according to him.

“We’re not the police,” Bookman says. “We can’t enforce laws on the sidewalks.”

So, perceiving the S.L.A. and the liquor-licensed premises to be unaccountable, the residents say they have no other choice than to sue, as the Flatiron Alliance and East Village group are doing — or to start chartering buses to Albany for the spring.

From the sound of it, it looks like it might be quite a convoy.


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