Can a New York town adopt a local law making it a violation to host a party for minors where alcohol is being consumed?

Plain-English summary

The Town of Ramapo wanted to enact a local law to combat underage drinking. The proposed ordinance would prohibit anyone over 16 from hosting a party at a residence under their control where five or more minors (under 21) were present and a minor was consuming alcohol. The fine would range from $250 to $1,000. Ramapo's town attorney asked whether state alcohol-control laws preempted this kind of local law. The AG said no.

Preemption is a constitutional ceiling on the home-rule power. A town can enact local laws on the safety, health, and welfare of persons within the town under N.Y. Constitution article IX, § 2(c)(10) and Municipal Home Rule Law § 10(1)(ii)(a)(12). But where the Legislature has either expressly preempted a field or enacted a regulatory scheme so comprehensive that it implicitly occupies the field, a local law in that area is invalid.

The AG walked through the state's regulatory scheme around underage drinking. It restricts three groups of people. First, sellers and providers: Penal Law § 260.20(2) and ABC Law § 65(1) make it a crime to give or sell alcohol to a person under 21 (with narrow parent and education-curriculum exceptions); ABC Law § 65-a covers age misrepresentation; General Obligations Law § 11-100(1) creates civil liability for someone who knowingly furnishes alcohol to a minor whose intoxication injures a third party; ABC Law § 65-b governs what ID licensees can accept and § 65-d requires posted notices. Second, underage drinkers themselves: ABC Law § 65-b(2)(a) (presenting false ID) and § 65-c (possessing alcohol with intent to consume). Third, restrictions on minors' presence on licensed premises, vending machine access, and employment.

The Ramapo ordinance targets a different group: residential hosts. A host might also be a supplier or a minor in possession, but the conduct being penalized is providing access to a private premises for underage drinking. The state has not regulated that conduct.

The AG analyzed preemption under the standard set by Albany Area Builders and Jancyn Manufacturing. There was no express preemption statement and no expression of need for statewide uniformity. The state's scheme was not so detailed and comprehensive that it implicitly precluded local regulation. The AG drew an analogy to Vatore v. Commissioner of Consumer Affairs, 83 N.Y.2d 645 (1994), where the Court of Appeals held that state laws regulating minors' access to tobacco did not preempt a New York City law restricting tobacco vending machines. The Court emphasized in Vatore that local laws furthering the State's policy interests, rather than conflicting with them, are not preempted absent a clear legislative signal.

The AG concluded that Ramapo's proposed teen-party-host law was consistent with, not contrary to, the State's interest in preventing underage drinking, and could be enacted under home-rule authority.

Currency note

This opinion was issued in 2006. 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: What did the proposed Ramapo law actually prohibit?
A: It targeted any person over 16 who hosted a gathering at a premises under their control where five or more persons under 21 were present and at least one minor was consuming alcohol. The fines ran from $250 to $1,000. The law had an explicit exception for parent-child situations and a carve-out for any location regulated by the State Liquor Authority.

Q: How does preemption work in New York?
A: Preemption can be express (the statute itself says local laws are barred) or implied. Implied preemption is found when the Legislature has declared a need for statewide uniformity or has enacted a regulatory scheme so detailed it shows an intent to occupy the field. The mere overlap between state and local law is not enough to find preemption.

Q: Why didn't the Alcoholic Beverage Control Law preempt this?
A: Courts have held the ABC Law preemptive in one specific field: the regulation of establishments that sell alcoholic beverages. People v. De Jesus, 54 N.Y.2d 465 (1981). The Ramapo ordinance applied to private residential hosts, not to licensed sellers, and Ramapo's drafters expressly carved out any "location or place regulated by the New York State Liquor Authority." So the ordinance steered around the preempted field.

Q: Is this the same as a parental liability or social host liability law?
A: Civil social-host liability under General Obligations Law § 11-100(1) exists when a host knowingly provides alcohol to a minor and that minor's intoxication injures a third party. The Ramapo ordinance is different: it imposes a direct municipal fine for hosting the gathering itself, with no requirement that anyone be injured. Both can coexist.

Q: What about a local law that goes further and bans all underage drinking?
A: The AG flagged a prior opinion (86-74) holding that a municipality may not enact a local law banning consumption of alcoholic beverages by anyone under 21 in public or private places, because that would be inconsistent with state law (which already restricts conduct in this area in a particular way). The Ramapo law was acceptable precisely because it targeted hosts and access to premises, an angle the state regulators had not occupied.

Q: Could a town impose a higher fine or jail time?
A: The opinion did not address the upper limit on local penalties. A town's authority to set penalties for violations of local laws is governed by other statutes (Municipal Home Rule Law § 10(4)). The opinion's holding was limited to the preemption question.

Background and statutory framework

Home rule. Under N.Y. Constitution article IX, § 2(c)(10) and Municipal Home Rule Law § 10(1)(ii)(a)(12), a town has authority to enact local laws relating to safety, health, and well-being. Local laws may not be inconsistent with the Constitution or general law, and may not legislate in a field the Legislature has reserved.

Preemption doctrine. Albany Area Builders held that preemption "embodies the untrammeled primacy of the Legislature to act with respect to matters of State concern." Courts find preemption either from an express statement of intent or from inferences drawn from a comprehensive regulatory scheme that signals an intent to occupy the field. The need for statewide uniformity also supports a finding of implied preemption.

State law on underage access to alcohol. Penal Law § 260.20(2) and ABC Law § 65(1) prohibit giving or selling alcohol to a person under 21. ABC Law § 65-a prohibits age misrepresentation. ABC Law § 65-b restricts the documentation a licensee may accept and prohibits underage persons from presenting false ID. ABC Law § 65-c prohibits an underage person from possessing alcohol with intent to consume. ABC Law § 65-d requires licensees to post notices about the illegality of underage sale and false ID. General Obligations Law § 11-100(1) creates civil liability for furnishing alcohol to a minor.

Comparable analysis under tobacco laws. Vatore analyzed whether state laws limiting minors' access to tobacco preempted a New York City vending machine ordinance. The Appellate Division held that, before the 1992 enactment of the Adolescent Tobacco-Use Prevention Act, the state scheme had not preempted local action. The Court of Appeals reached the same conclusion regarding the 1992 Act itself, emphasizing the absence of express preemption language, the lack of any expression of need for statewide uniformity, and the fact that the local law "would only further the State's policy interests."

Examples of comprehensive schemes that did preempt. In Penny Lane, the Appellate Division held Penal Law provisions on obscenity preempted a local law on obscene-material display. In Dougal, the Appellate Division held the state's regulation of drug paraphernalia preempted a local equivalent. The state regimes in those cases were notably more comprehensive (total bans, criminal and civil penalties, seized-property procedures) than the alcohol scheme analyzed here.

Citations and references

Statutes:

• N.Y. Const. art. IX, § 2(c)(10) (home rule)
• Municipal Home Rule Law § 10(1)(ii)(a)(12) (local law authority for safety/health)
• Penal Law §§ 260.20(2), 260.21(1) (unlawful dealing with a child; on-premises restrictions)
• Alcoholic Beverage Control Law §§ 65(1), 65(5), 65-a, 65-b, 65-c, 65-d, 79-c(1), 99-f, 100(2-a), 100(2-b), 106(17), 126(2) (underage access and licensee duties)
• General Obligations Law § 11-100(1) (social-host civil liability)
• General Business Law §§ 398-c, 399-d (related minor-protection statutes)
• Tax Law § 480-a (tobacco-dealer registration; Vatore analogue)
• Public Health Law art. 13-E (indoor smoking regulation)
• Public Health Law §§ 1399-aa to 1399-mm (Adolescent Tobacco-Use Prevention Act)
• L. 1992, ch. 799 (adoption of tobacco preemption analogue)

Cases:

• Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372 (1989)
• Robin v. Incorporated Village of Hempstead, 30 N.Y.2d 347 (1972)
• Wambat Realty Corp. v. State, 41 N.Y.2d 490 (1977)
• Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91 (1987)
• Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99 (1983)
• People v. De Jesus, 54 N.Y.2d 465 (1981)
• Vatore v. Commissioner of Consumer Affairs, 83 N.Y.2d 645 (1994)
• People v. Judiz, 38 N.Y.2d 529 (1976)
• Zorn v. Howe, 276 A.D.2d 51 (3d Dep't 2000)
• People v. Ortiz, 125 Misc. 2d 318
• Matter of Penny Lane/East Hampton, Inc. v. County of Suffolk, 191 A.D.2d 19 (2d Dep't 1993)
• Dougal v. County of Suffolk, 102 A.D.2d 531 (2d Dep't 1984), aff'd, 65 N.Y.2d 668 (1985)

Prior AG opinions:

• Op. Att'y Gen. (Inf.) No. 86-74 (municipality may not enact local law banning consumption by under-21 in public or private places)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2006-2_pw.pdf

Original opinion text

N.Y. CONST. Art. IX, §2(c)(10); PENAL LAW §§ 260.20(2), 260.21(1); ALCOHOLIC BEVERAGE CONTROL LAW §§ 65(1), 65(5), 65-a, 65-b(2)(a),(b), 65-c, 65-d, 79-c(1), 99-f, 100(2-a), (2-b), 106(17), 126(2); GENERAL OBLIGATIONS LAW §§ 11-100(1), 398-c, 399-d; MUNICIPAL HOME RULE LAW § 10(1)(ii)(a)(12); TAX LAW § 480-a; PUBLIC HEALTH LAW Art. 13-E; CH. 799, 1992 N.Y. LAWS 4202; PUBLIC HEALTH LAW §§ 1399-aa - 1399-mm.

Enactment of "teen party host" local law is not preempted by state law.

February 15, 2006

Michael L. Klein
Town Attorney
Town of Ramapo
237 Route 59
Suffern, New York 10901

Informal Opinion
No. 2006-2

Dear Mr. Klein:

You have requested an opinion regarding the authority of the Town to enact a local law that would prohibit any person over 16 years of age from hosting a party at a premises under his or her control where five or more minors (meaning any person under 21 years of age) are present and alcohol is being consumed by any minor. The penalty for violating the local law would be a fine ranging from $250 to $1000. You have explained that the purpose of the proposed local law is to prevent underage drinking. You have asked whether the local law is preempted by state law.

The Legislature has enacted a number of statutes generally restricting access to alcoholic beverages by underage individuals. Several of these provisions are directed towards persons other than the underage drinker: a person is prohibited from giving, selling, or causing to be given or sold any alcoholic beverage to a person less than 21 years old, Penal Law § 260.20(2); see also Alcoholic Beverage Control Law § 65(1) (prohibiting selling, delivering, or giving away, or causing or permitting or procuring to be sold, delivered, or given away any alcoholic beverage to any person actually or apparently under the age of 21 years); and from misrepresenting the age of a person under the age of 21 years for the purpose of inducing the sale of any alcoholic beverage to such person, Alcoholic Beverage Control Law § 65-a. Moreover, a person who knowingly causes the intoxication or impairment of ability of a person under the age of 21 years by unlawfully furnishing to or unlawfully assisting in procuring alcoholic beverages for that minor may be civilly liable to a third party who is injured by reason of that intoxication. General Obligations Law § 11-100(1). Related provisions of the Alcoholic Beverage Control Law direct that an entity licensed to sell alcoholic beverages may accept as written evidence of age only certain types of documentation. Alcoholic Beverage Control Law § 65-b(2)(b). Licensees also must conspicuously display a notice regarding the illegality of the sale or giving of alcoholic beverages to persons under the age of 21 years and of the presentation of identification that is false, fraudulent, or not that of the presenter for the purpose of purchasing or attempting to purchase alcoholic beverages. Id. § 65-d.

Other statutes are directed towards the underage persons themselves: an underage person is prohibited from presenting or offering to a licensee under the Alcoholic Beverage Control Law any written evidence of age that is false, fraudulent, or not actually his or her own for the purpose of purchasing or attempting to purchase any alcoholic beverage, Alcoholic Beverage Control Law § 65-b(2)(a); and from possessing any alcoholic beverage with the intent to consume it, id. § 65-c.

The Town's proposed local law is directed towards a third group of persons: a host providing access to premises under his or her control, whether or not he or she is supplying or consuming alcoholic beverages. As explained below, we are of the opinion that the State has not preempted this type of local legislation.

ANALYSIS

A town has broad power to enact local laws pursuant to the law of municipal home rule, including those relating to the safety, health, and well-being of persons within the town. See N.Y. Constitution article IX, § 2(c)(10); Municipal Home Rule Law § 10(1)(ii)(a)(12). The town may adopt these local laws pursuant to its home rule power as long as they are "not inconsistent with the provisions of the constitution or not inconsistent with any general law" and "except to the extent that the legislature shall restrict the adoption of such a local law." Municipal Home Rule Law § 10(1)(ii).

The preemption doctrine constitutes a fundamental limitation on home rule powers. Albany Area Builders Ass'n v. Town of Guilderland, 74 N.Y.2d 372, 377 (1989). Where the Legislature has expressed an intent to preempt a field of regulation, a municipality may not legislate in that field absent clear and specific authorization. Robin v. Incorporated Village of Hempstead, 30 N.Y.2d 347, 350-51 (1972). This limitation "embodies the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern." Albany Area Builders, 74 N.Y.2d at 377, quoting Wambat Realty Corp. v. State of New York, 41 N.Y.2d 490, 497 (1977). Where the State has preempted the field, a local law regulating the same subject matter is deemed inconsistent with the State's interest, even if the terms of the local law do not directly conflict with a state statute. Id. at 377. Such laws, were they permitted to operate in a field preempted by State law, would tend to inhibit the operation of the State's general law and thereby thwart the operation of the State's overriding policy concerns. Jancyn Mfg. Corp. v. County of Suffolk, 71 N.Y.2d 91, 97 (1987). The mere fact, however, that the state law and the proposed local law would touch upon the same area is insufficient to support a determination that the State has preempted the entire field of regulation in a given area. Id. at 99.

The Legislature's intent to preempt a field of regulation need not be express, but may be implied from the nature of the subject matter being regulated and the purpose and scope of the state legislative scheme, including the need for statewide uniformity in a given area. Albany Area Builders, 74 N.Y.2d at 377. Typically, courts have relied upon an expression of policy or the presence of a comprehensive and detailed regulatory scheme to find that an area of law has been preempted. See Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99, 105 (1983).

As discussed above, under state law, a person under 21 years may not present false identification for the purpose of purchasing alcoholic beverages, nor may he or she possess an alcoholic beverage with the intent to consume it. Alcoholic Beverage Control Law §§ 65-b(2)(a), 65-c. No person, except a person who fits within a statutory exception, may provide an alcoholic beverage to a person under the age of 21 years, nor may any person misrepresent the age of a person under the age of 21 years for the purpose of inducing a sale of an alcoholic beverage to that person. Penal Law § 260.20(2); Alcoholic Beverage Control Law §§ 65(1) and 65-a. Supplying a minor with alcoholic beverages may render a person civilly liable to a third party injured as a result the minor's intoxication. General Obligations Law § 11-100(1). We are of the opinion that this regulatory scheme does not preempt a local law of the type proposed by the Town.

With respect to access to alcoholic beverages by underage persons, the state statutes do not include an express statement of preemption. Moreover, none of them include a statement of policy indicating an intent to preempt local regulation or an expression of need for uniform control of access to alcoholic beverages by minors.

The more difficult question is whether the statutes constitute a comprehensive and detailed regulatory scheme indicating that the Legislature has "evinced its desire to preclude the possibility of local regulation," Jancyn, 71 N.Y.2d at 98. On balance, we believe that they do not. Rather, we believe that the state legislation is "not so broad in scope or so detailed as to require a determination" that it has superseded all local legislation. Id. at 99. We are of the opinion that the regulatory scheme is comparable to others that have been found by New York courts to have no preemptive effect. See, e.g., id. (state scheme regulating the sale and use of certain sewer system cleaning additives in Suffolk and Nassau Counties not sufficiently broad in scope or detailed as to require conclusion of preemption where only certain toxic chemicals were banned, the Commissioner of Environmental Conservation was not vested with exclusive jurisdiction, and no direct controls at local level were imposed); People v. Judiz, 38 N.Y.2d 529 (1976) (state law prohibiting possession of toy gun with intent to use it unlawfully against another did not preempt local law prohibiting possession of toy guns resembling in specific ways real guns); Zorn v. Howe, 276 A.D.2d 51, 54 (3d Dep't 2000) (state law governing eviction from leased premises because of illegal business activity conducted on premises did not preempt local law establishing illegal drug use and possession as basis for eviction; "the mere fact that the Legislature chose to address illegal business activity . . . in no way evidences an intent to preclude a municipality from exercising its municipal home rule power by similarly addressing illegal private activities"); People v. Ortiz, 125 Misc. 2d 318, 329 (state law regulating weapons did not preempt local law proscribing possession or carrying of knives with blades at least four inches long without a lawful purpose; "silence by the State on a particular issue should not be interpreted as an expression of intent to preempt"); but see Matter of Penny Lane/East Hampton, Inc. v. County of Suffolk, 191 A.D.2d 19 (2d Dep't 1993) (Penal Law provisions dealing with obscenity preempted local law prohibiting display of obscene materials where state law established complete ban on obscene material and on dissemination to minors of obscene materials, provided for the seizure and destruction of obscene materials, and established criminal penalties for the public display of offensive sexual materials); Dougal v. County of Suffolk, 102 A.D.2d 531 (2d Dep't 1984) (State enacted comprehensive and detailed regulatory scheme in the field of drug-related paraphernalia and thus preempted local law regulating the sale of certain merchandise characterized as drug paraphernalia; legislative scheme included total ban on sale of drug-related paraphernalia, prescribing criminal and civil penalties for selling or offering to sell such items, authority for the commencement of injunctive actions by local officials against violators, and authority for the destruction of specified items seized, as well as detailed instructions concerning the procedures to be employed locally in implementing the ban), aff'd, 65 N.Y.2d 668 (1985).

We find particularly instructive the decisions in Vatore v. Commissioner of Consumer Affairs, 154 Misc. 2d 149 (N.Y. Sup. Ct. 1992), rev'd, 192 A.D.2d 520 (2d Dep't 1993), rev'd, 83 N.Y.2d 645 (1994), in which state laws regulating access to tobacco products by minors were ultimately held not to preempt local legislation in the field. At issue in Vatore was a New York City law prohibiting the siting of tobacco-product vending machines in public places other than taverns. 83 N.Y.2d at 647. The purpose of the local law was to reduce the access of minors to tobacco products. Id. The local law was challenged, in part on the ground that it was preempted by state law. Id. at 648. In support of this argument, the plaintiffs cited four state statutes, including Penal Law § 260.20, prohibiting the sale of tobacco to a person under 18 years. Id. at 648 n.1; 154 Misc. 2d at 152. Supreme Court concluded that the Legislature had not adopted a comprehensive scheme of regulation that preempted the local law. 154 Misc. 2d at 152. In 1992, while an appeal of the Supreme Court's decision was pending, the State enacted the Adolescent Tobacco-Use Prevention Act. 83 N.Y.2d at 648. Based on this enactment, the Appellate Division found that the local law was preempted and thus invalid. 192 A.D.2d at 521. The Appellate Division agreed, however, with Supreme Court that, prior to the 1992 enactment, the local law had not been preempted. Id.

The Court of Appeals addressed only the issue of whether the local law was preempted by the Adolescent Tobacco-Use Prevention Act, and held that it was not. 83 N.Y.2d at 647, 650. The Act did not express any general preemptive intent. Id. at 649. Moreover, the Court found absent from the Act any expression of need for uniform statewide control of tobacco-product vending machines. Id. at 650. The Court also concluded that the statutory scheme was not so "broad and detailed in scope as to require a determination that it has precluded all local regulation in the area, particularly where, as here, the local law would only further the State's policy interests." Id.

As the Court of Appeals found in Vatore with respect to the Adolescent Tobacco-Use Prevention Act, we have found no expression of need for uniform statewide control in the legislation regulating access to alcoholic beverages by minors. Moreover, like the Court of Appeals in Vatore, we believe that the regulatory scheme is not so broad and detailed so as to require the conclusion that the Legislation has precluded local regulation in the area. Indeed, the state regulatory scheme with respect to access to alcoholic beverages by minors is similar to that determined by Supreme Court and affirmed by the Appellate Division not to be preemptive in Vatore. It regulates and prohibits particular behavior of specified individuals but does not constitute a comprehensive scheme regulating all aspects of access to alcoholic beverages by minors, and it is silent with respect to providing access to private premises on which alcohol is available. Because we believe the legislative scheme contains no clear indication of an intent to preclude local legislation in the field of access to alcoholic beverages by minors, we are of the opinion that local legislation of the type proposed by the Town is not preempted by state law.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions