Can a New York town allow alcohol on town park or community center property, and require a permit to do so?

Plain-English summary

The Town of Webster wanted to know whether private groups holding rentals at its community center or in its parks could lawfully consume alcohol on town property, and whether the town could require those groups to obtain a permit first. The AG answered yes to both.

The Alcoholic Beverage Control Law preempts local rules on the sale and distribution of alcohol. It does not preempt rules about consumption. New York courts have long recognized that municipalities can ban or restrict drinking in public spaces under their police power, and several reported cases upheld local "open container" or park-drinking ordinances on that basis. The mirror image is also true: a town that chose not to ban consumption could permit it on its own property, because Town Law § 64(3) gives the town board management and custody of all town lands and buildings.

A permit system was permissible for the same reasons. Town Law § 130(15) authorizes towns to legislate for the health, safety, morals, and general welfare of the community, including the protection of town property. Municipal Home Rule Law § 10(1)(ii)(a)(6) and (a)(12) and the parallel constitutional grants in N.Y. Const., art. IX, § 2(c)(6) and (c)(10) all reach the regulation of municipal property and the local police power.

The constitutional limit on this kind of regulation is the public-purpose test of Good Humor Corp. v. City of New York: any local legislation has to be "reasonably calculated to achieve a legitimate public purpose." Protecting a town community center and town parks qualifies, and so does protecting the public health and welfare. The AG flagged the contrary line of cases, People v. Lee and People v. Furlong, where ordinances that criminalized merely possessing an open container (without any intent to consume) were struck down as not reasonably related to the public good. A permit scheme aimed at regulating the use of alcohol on identified town property does not have that infirmity.

The Town Code already had a section restricting alcohol in parks (§ 156-10(F)), which the AG mentioned without disturbing.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does state liquor law preempt a town from allowing alcohol in its parks?
A: No. The Alcoholic Beverage Control Law preempts local regulation of the sale and distribution of alcohol, not its consumption. The AG explained that towns have long been recognized as able to regulate (or permit) the consumption of alcoholic beverages in public, under their police power.

Q: Where does the town's authority to require permits come from?
A: Town Law § 130(15) authorizes ordinances and local laws regulating health, safety, morals, and general welfare, including permit and licensing mechanisms. The home rule grant in Municipal Home Rule Law § 10(1)(ii)(a)(6) and (a)(12) reaches both management of town property and the police power.

Q: Was the town required to set up a permit system?
A: No. The AG framed the permit decision as discretionary. Whether to install a permit process was for the town board to decide once it concluded that regulation served a valid public purpose.

Q: What public purpose would justify a permit scheme?
A: Protection of the town's community center and parks, and protection of public health and welfare around private functions on town property, were both identified as adequate purposes.

Q: Does the AG distinguish "private groups consuming alcohol" from "selling alcohol"?
A: Yes, and that distinction matters. The town attorney confirmed that the groups would not be reselling alcohol to retailers. If they were, the activity would fall under the Alcoholic Beverage Control Law's licensing regime, not the town's local management of its property.

Q: Does the opinion address the town's tort liability when alcohol is consumed on its property?
A: No. The town attorney expressly excluded liability questions from the request, so the AG limited the opinion to the authority question.

Background and statutory framework

Two strands of law converge in this opinion. The first is preemption: how far does the Alcoholic Beverage Control Law reach when a municipality regulates alcohol locally? The leading Court of Appeals decisions (DJL Restaurant Corp. v. City of New York and People v. De Jesus) had drawn the line at sale and distribution. Consumption was historically treated as part of the local police power, which the AG and the State Comptroller had reaffirmed in earlier opinions, including Op. St. Compt. 86-72.

The second is the source of the town's authority to permit alcohol on its property. Town Law § 64(3) makes the town board responsible for managing town lands, buildings, and property. Town Law § 130(15) extends ordinance-making authority over the same subjects. The Constitution and Municipal Home Rule Law confirm both the property-management power (§ 2(c)(6) and § 10(1)(ii)(a)(6)) and the broader police power (§ 2(c)(10) and § 10(1)(ii)(a)(12)).

Permit schemes can be invalidated where they criminalize conduct unrelated to the harm the police power is supposed to address. People v. Lee struck down a New York City ordinance prohibiting mere possession of an open container without proof of intent to consume; People v. Furlong did the same with a state park regulation. The Webster scheme avoided that problem because it tied the permit requirement to actual consumption events on identified town property.

Citations and references

Constitution:

• N.Y. Const., art. IX, § 2(c)(6) (local management of property)
• N.Y. Const., art. IX, § 2(c)(10) (local police power)

Statutes:

• Alcoholic Beverage Control Law § 2 (purpose of ABC Law)
• Municipal Home Rule Law § 10(1)(ii)(a)(6) and (a)(12) (home rule on property and police power)
• Town Law § 64(3) (management, custody, control of town property)
• Town Law § 130(15) (permits and ordinances for general welfare)

Cases:

• DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91 (2001)
• People v. De Jesus, 54 N.Y.2d 465 (1981)
• People v. Finch, 88 Misc. 2d 581 (Just. Ct., Sullivan County 1976)
• People v. Elhage, 147 A.D.2d 911 (4th Dep't 1989)
• Good Humor Corp. v. City of New York, 290 N.Y. 312 (1943)
• People v. Lee, 58 N.Y.2d 491 (1983)
• People v. Furlong, 129 Misc. 2d 938 (Nassau Dist. Ct. 1985), order aff'd as moot, 70 N.Y.2d 756 (1987)

Other authorities:

• Op. St. Compt. 86-72 (1986)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2003-13_pw.pdf

Original opinion text

N.Y. CONST., ART. IX, § 2(c)(6) and (c)(10); ALCOHOLIC BEVERAGE CONTROL LAW § 2; MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(6) and (a)(12); TOWN LAW §§ 64(3), 130(15).

A town may allow the consumption of alcohol on town property, and may implement a permit system to regulate such consumption.

October 28, 2003

Charles Genese, Esq.
Town Attorney
Town of Webster
1000 Ridge Road
Webster, New York 14580

Informal Opinion
No. 2003-13

Dear Mr. Genese:

You have requested an opinion regarding whether the Town may permit the consumption of alcohol on municipal property. You explained that the Town has a building facility used as a community center and a number of town parks where private groups may hold social functions. As part of these functions, the participants may wish to consume alcohol. You therefore have asked whether State law prohibits the Town of Webster from permitting alcohol to be consumed on municipal property by members of the public. In the event that such alcohol consumption is permissible, you have further inquired as to whether the Town should implement a permitting process to regulate such activity.

For the reasons discussed below, we conclude that State law does not prohibit the Town from permitting the consumption of alcohol on municipal property by the public. Furthermore, while the decision of whether the Town should implement a permit process for the use of alcohol on municipal property is a discretionary decision to be made by the Town, we conclude that the Town may implement such a permit process.

Analysis

I. Consumption of Alcoholic Beverages on Municipal Property

We are unaware of any provision of New York statutory law that prohibits the consumption of alcohol on municipal property. The purpose of the Alcoholic Beverage Control Law is to regulate the manufacture, distribution, and sale of alcohol. Alcoholic Beverage Control Law § 2. While the Alcoholic Beverage Control Law preempts local law relating to the sale and distribution of alcohol, see DJL Restaurant Corp. v. City of New York, 96 N.Y.2d 91, 96 (2001); People v. De Jesus, 54 N.Y.2d 465, 469 (1981), the right of municipalities to regulate the consumption of alcoholic beverages in public has been recognized. People v. Finch, 88 Misc. 2d 581 (Just. Ct., Sullivan County 1976) (ordinance prohibiting consumption of alcoholic beverage in specified public areas was reasonable exercise of municipal police power); see also People v. Elhage, 147 A.D.2d 911 (4th Dep't 1989) (affirming constitutionality under due process of local "open container" law); Op. St. Compt. 86-72 (1986) (regulation by State of manufacture, sale and distribution of alcoholic beverages does not preclude enactment of local law prohibiting consumption of alcoholic beverages in public places by individuals). Additionally, the Town Board is generally authorized to regulate the use of municipal property, see Town Law § 64(3) (the town board "[s]hall have the management, custody and control of all town lands, buildings and property of the town and keep them in good repair . . . ."). In light of this grant of authority and the recognized right of municipalities to restrict the consumption of alcohol in public, we are of the opinion that a municipality may permit the consumption of alcohol on municipal property.

II. Requiring Permit for Alcohol Consumption on Town Property

With respect to whether the Town should implement a permitting process for alcohol consumption on its property, that is a decision left to the Town Board's discretion. For the reasons discussed below, we are of the opinion that, upon the Town Board's determination that such regulation is necessary to serve a valid public purpose, the Town may institute such a permit process.

The Town Board is authorized to include provisions relating to the issuance and revocation of permits in local legislation enacted to promote the health, safety, morals, or general welfare of the community, including the protection and preservation of town property. See Town Law § 130(15). Thus, the mechanism of regulation through permit is statutorily sanctioned.

Implementing a permit process would, of course, constitute the regulation of the consumption of alcohol, as well as the regulation of the use of municipal property. The Town Board is charged with the management, custody, and care of all town lands, buildings, and property, see Town Law § 64(3), and is authorized to adopt local laws concerning the care, management, and use of its property. See N.Y. Const., art. IX, § 2(c)(6); Municipal Home Rule Law § 10(1)(ii)(a)(6). The Town may also legislate with respect to the "government, protection, order, conduct, safety, health and well-being of persons or property" within the Town (often referred to as "police power"). N.Y. Const., art. IX, § 2(c)(10); Municipal Home Rule Law § 10(1)(ii)(a)(12). We believe that the authority to regulate the consumption of alcohol on town property falls within these grants of power.

These broad grants of power are not, however, unbounded. One limitation is that local legislation "must be reasonably calculated to achieve a legitimate public purpose." Good Humor Corp. v. City of New York, 290 N.Y. 312, 317 (1943) (applying police power and power to regulate use of city streets). We believe that the maintenance and protection of a town community center and town parks used by the community qualifies as a valid public purpose, for which the Town Board may reasonably adopt legislation creating a permit system for the consumption of alcohol on such property. Protection of the public health and welfare is another public purpose that may support adoption of a permit system. See People v. Elhage, 147 A.D.2d 911 (4th Dep't 1989) ("open container" law supported by legislative findings that consumption of alcoholic beverages in public streets is detrimental to public good); People v. Finch, 88 Misc. 2d 581, 585 (Just. Ct., Sullivan County 1976) ("In light of local circumstances and community setting, the village board might reasonably determine that [the consumption of alcoholic beverages in public] would be unnecessarily offensive to the . . . safety, comfort and general welfare of its citizens and inhabitants . . .."). But see People v. Lee, 58 N.Y.2d 491 (1983) (municipal ordinance prohibiting possession of open container of alcoholic beverage in public without requiring showing of intent to consume not reasonably related to public good); People v. Furlong, 129 Misc. 2d 938 (Nassau Dist. Ct. 1985), order aff'd as moot, 70 N.Y.2d 756 (1987) (State regulation prohibiting possession of alcoholic beverage in State park without requiring showing of intent to consume not reasonably related to public good).

In summary, we conclude that the Town may regulate the consumption of alcohol on municipal property, and may accomplish that end through a permit process.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions