Section 64 of the ABC Law prohibits certain licenses from being issued if the location of the establishment is on the same street and within 200 feet of a building that is used exclusively as a school, church, synagogue or other place of worship. This restriction is commonly called the 200 foot rule and applies to any retail establishment where liquor will be sold for on premises consumption and any retail establishment where liquor or wine will be sold for consumption off the premises. In other words, on-premise liquor license applications located within 200 feet of a school, church, or other place of worship will be rejected. The same principle applies to wine and liquor stores as well.
Measurement of Distance
The measurement of this distance is of paramount importance, particularly within the New York City metro area. The ABC Law is both specific and clear on this point. The measurement must be taken in a straight line from the center of the nearest entrance of the school/place of worship to the center of the nearest entrance of the establishment. The distance is determined using only entrances that are regularly used to give ingress to (a) the students of the school, (b) the general public into the place of worship; and (c) patrons into the establishment. Emergency/fire exits, maintenance access, and doors to gain access to non-public areas are not used in the measurement. If the entrance is set back from the sidewalk by a walkway or doorway, the measurement is taken from the center of the line where the walkway/doorway meets the sidewalk. For an establishment in a multi-story building, the building entrance at street level is used.
The statute refers to the school/place of worship being on the same street as the licensed premises. The buildings do not have to be on the same block. With respect to an establishment or school/place of worship on a corner lot, the building is considered to be on both streets, whether or not there is an entrance to the building on both streets.
Exceptions to the Rule: The “Grandfather Clause”
If the 200 foot rule applies to a particular location, the Authority does not have the discretion to grant the application. Even if the school/place of worship consents to the issuance of the license, the Authority cannot approve the application. If the Authority discovers that an establishment has been licensed in violation of the rule, it cannot allow the violation to continue when the license comes up for renewal. The statute does, however, provide for certain exceptions to the rule:
- Establishments in operation since December 5, 1933 (the end of prohibition);
- If the location was licensed before the school/place of worship existed, the Authority can renew the license and approve applications to transfer ownership;
- If a hotel has an existing “RL” [restaurant liquor] license, it may obtain a “HL” [hotel liquor] license;
- Applications for a “CL” [club liquor] when the club is affiliated with the school/place of worship;
- A legitimate theater operated by a not-for-profit organization; and
- The Authority may permit the licensee to move a licensed premises that has an exception to another location within 200 feet of the school/church, as long as the new location is not closer than the old location.
Exclusive Use As A School/Place of Worship
While the law uses the phrase “building used exclusively” as a school/place of worship, the courts have adopted a test that looks to whether the building is used primarily as a school/place of worship. The building will still be considered a school/place of worship as long as any use is incidental to, and are not inconsistent with or detracting from the predominant character of the building as a school/place of worship.
In 2007, the 200 foot rule was amended to clarify that the use of a building for certain purposes would be considered incidental to its primary use as a place of worship. Those uses include, but are not limited to:
- The conduct of legally authorized games of bingo or other games of chance held as a means of raising funds for the not-for-profit religious organization which conducts services at the place of worship or for other not-for-profit organizations or groups;
- Use of the building for fund-raising performances by or benefitting the not-for-profit religious organization which conducts services at the place of worship or other not-for-profit organizations or groups;
- The use of the building by other religious organizations or groups for religious services or other purposes the conduct of social activities by or for the benefit of the congregants;
- The use of the building for meetings held by organizations or groups providing bereavement counseling to persons having suffered the loss of a loved one, or providing advice or support for conditions or diseases including, but not limited to, alcoholism, drug addiction, cancer, cerebral palsy, Parkinson’s disease, or Alzheimer’s disease;
- The use of the building for blood drives, health screenings, health information meetings, yoga classes, exercise classes or other activities intended to promote the health of the congregants or other persons;
- And use of the building by non-congregant members of the community for private social functions.
In addition, the amendment also provided that a building would still be considered as “used exclusively” as a place of worship even when the not-for-profit religious organization occupying the place of worship accepts payments from those using the building to assist in defraying costs related to that party’s use of the building.