What licenses can the New York Liquor Authority issue after a town referendum on local option for alcohol sales ends in a tie?

Plain-English summary

The Town of Spencer in Tioga County was a dry town. In November 2003, the voters considered local-option questions under Alcoholic Beverage Control Law § 141 on five distinct categories of alcohol sales: (1) restaurant sales for on-premises consumption (§ 64), (2) tavern sales for on-premises consumption (§ 64-a), (3) off-premises consumption (typically liquor stores), (4) hotel sales for on-premises consumption, and (5) summer-hotel sales for on-premises consumption. The results were mixed: questions 1, 4, and 5 failed on majorities; question 3 (off-premises) passed on a majority; and question 2 (taverns) ended in an exact tie. The county board of elections asked the State Liquor Authority what licenses could be issued, and the SLA's counsel asked the AG. The AG concluded that the tie on the tavern question resulted in passage of the tavern proposal.

The text controls. ABC Law § 141(3) provides that "[i]f a majority of the votes cast shall be in the negative on all or any of the questions, no person shall, after such election, sell alcoholic beverages in such town contrary to such vote." The condition for defeating a question is a majority of negative votes. A tie is not a majority of negative votes. So a tied question is not defeated under § 141(3).

The statutory structure confirms this. § 141(4) carries the principle forward into a license-related rule: a restaurant licensee can sell for off-premises consumption if the number of votes on the restaurant question is "equal or a majority . . . in the affirmative," even if a majority of votes cast on the off-premises question is in the negative. § 141(4) treats a tie the same as a majority of affirmative votes for the restaurant question. That confirms the legislative intent that a tie counts as affirmative for ABC § 141 purposes.

The historical contrast. This is unusual in New York election law. Local laws subject to mandatory referendum (Mun. Home Rule Law § 23(1)), local laws on petition (§ 24(1)(a)), county resolutions subject to permissive referendum (County Law § 101(2)), airport-construction resolutions (General Municipal Law § 350(2)), conversion of elected tax positions (Town Law §§ 11, 12), and village dissolutions (Village Law § 19-1900) all require a majority of affirmative votes to pass. A tie defeats those. ABC § 141 is alone in flipping the rule.

The history explains why the rule is odd. The Liquor Tax Law of 1896 (L. 1896, ch. 112, § 16) used "majority of the votes shall be in the negative" language. An 1900 amendment (L. 1900, ch. 367, § 3) added a tie-defeats clause: "or if the number of votes cast for and against shall be equal." That stuck through repeated amendments until 1921, when Prohibition led to the repeal of the Liquor Tax Law (L. 1921, ch. 155, § 2). When the Alcoholic Beverage Control Law was enacted in 1933 (L. 1933, ch. 180), the tie-defeats clause was dropped. The 1934 re-enactment (L. 1934, ch. 478) didn't restore it. The AG concluded that the Legislature, aware of the prior tie-defeats language, intentionally chose to require a majority of negative votes only. The senate sponsor of the 1933 ABC law (John J. Dunnigan) had served in the Senate during periods when the older tie-defeats language was in effect, so the change appeared deliberate.

Application to Spencer. The five questions in the November 2003 vote resolved as follows:

• Question 1 (§ 64 restaurant sales for on-premises): failed on majority. No § 64 restaurant licenses.
• Question 2 (§ 64-a tavern sales for on-premises): tied. Passed. Tavern licenses may issue.
• Question 3 (off-premises consumption): passed on majority. Off-premises licenses may issue.
• Question 4 (hotel sales for on-premises): failed on majority. No hotel licenses.
• Question 5 (summer-hotel sales): failed on majority. No summer-hotel licenses.

The result: in Spencer, the Liquor Authority could issue retail off-premises licenses and § 64-a tavern licenses for on-premises consumption, but not § 64 restaurant, hotel, or summer-hotel licenses.

A drafting footnote. § 141(4) refers to "question number two" where the statute structure suggests it should refer to question number three. The AG noted this was likely a residue of a 1964 amendment (L. 1964, ch. 531, § 19) that added the tavern question to the list of questions as the new second question, pushing the original off-premises question to third position. § 141(4) had not been updated to track the renumbering.

Currency note

This opinion was issued in 2004. 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 happens when a local-option vote on alcohol sales under ABC § 141 ends in a tie?
A: The proposal passes. § 141(3) defeats a question only on a majority of negative votes. A tie is not a majority of negative votes, so the question is not defeated, and licenses of that type may issue.

Q: Is this rule the same as for other New York ballot referenda?
A: No. ABC § 141 is unusual. Most New York referendum statutes require a majority of affirmative votes to pass: Municipal Home Rule Law § 23(1), § 24(1)(a), County Law § 101(2), General Municipal Law § 350(2), Town Law §§ 11, 12, Village Law § 19-1900. In those, a tie defeats the proposal.

Q: Why is ABC § 141 different?
A: Historical accident, then deliberate retention. The 1896 Liquor Tax Law used "majority of negative votes" language. In 1900, the Legislature added a tie-defeats clause. That language survived through Prohibition. When the modern Alcoholic Beverage Control Law was enacted in 1933, the tie-defeats clause was not carried forward, and the omission was not corrected in subsequent amendments. The AG concluded the omission was deliberate.

Q: What does this mean practically for a dry town?
A: If voters split evenly on whether to allow a particular type of alcohol sale, that type of sale becomes permitted. The Liquor Authority may issue licenses of that type to qualified applicants in the town.

Q: What licenses can Spencer issue after this vote?
A: § 64-a tavern licenses for on-premises consumption (because of the tie passing) and off-premises licenses (because question 3 passed on a majority). § 64 restaurant licenses, hotel licenses, and summer-hotel licenses cannot issue (those questions failed on majorities).

Q: What is the difference between a § 64 restaurant license and a § 64-a tavern license?
A: § 3(27) defines "restaurant" in the ABC Law, requiring food service as a substantial element. A tavern license under § 64-a is for an establishment whose primary business is selling alcohol for on-premises consumption. The AG noted that many establishments called "hotels" in everyday language actually hold tavern licenses, not "hotel" licenses (§ 3(14) defines "hotel").

Background and statutory framework

The local-option scheme is in ABC § 141, which permits a town referendum on whether to allow various types of retail alcohol sales. § 141(1) prescribes the five-question format. § 141(3) makes the result binding on the Liquor Authority: "no person shall, after such election, sell alcoholic beverages in such town contrary to such vote." § 141(4) is the supplementary rule about restaurant licensees and off-premises sales.

The historical chain. L. 1896, ch. 112, § 16 (Liquor Tax Law original local-option provision, "majority of negative votes" only). L. 1900, ch. 367, § 3 (added "or if the number of votes cast for and against shall be equal"). L. 1917, ch. 624, § 15 (city local-option provision, "majority" language). L. 1921, ch. 155, § 2 (repeal of Liquor Tax Law). L. 1933, ch. 180 (initial ABC Law, beer-only, "majority of negative votes" only, no tie-defeats clause). L. 1934, ch. 478 (full ABC Law after Prohibition repeal, same "majority" language, no tie-defeats clause). L. 1964, ch. 531, § 19 (added the tavern question as new question 2).

The contrast with other referendum statutes confirms that the ABC § 141 tie-counts-as-yes rule is intentional and unusual.

Citations and references

Statutes:

• Alcoholic Beverage Control Law §§ 3, 64, 64-a, 141
• County Law § 101(2)
• General Municipal Law § 350(2)
• Municipal Home Rule Law §§ 23(1), 24(1)(a)
• Town Law §§ 11, 12
• Village Law § 19-1900
• L. 1964, ch. 531, § 19; L. 1934, ch. 478; L. 1933, ch. 180; L. 1921, ch. 155; L. 1917, ch. 624; L. 1900, ch. 367; L. 1896, ch. 112

Other authorities:

• 1961 Op. Att'y Gen. (Inf.) 8
• 4th Report of Comm'n on Alcoholic Beverage Control Legislation, 1933 N.Y. Legis. Doc. No. 87
• 1st Report of Comm'n on Alcoholic Beverage Control Legislation, 1933 N.Y. Legis. Doc. No. 62
• W.A. Warn, "Liquor Topic Rules Session at Albany," N.Y. Times, Jan. 15, 1933, at N1-2

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2004-F1_pw.pdf

Original opinion text

ALCOHOLIC BEVERAGE CONTROL LAW §§ 3, 64, 64-a, 141; COUNTY LAW § 101(2); GENERAL MUNICIPAL LAW § 350(2); MUNICIPAL HOME RULE LAW §§ 23(1), 24(1)(a); TOWN LAW §§ 11, 12; VILLAGE LAW § 19-1900; L. 1964, CH. 531, § 19; L. 1934, CH. 478, §§ 2, 141; L. 1933, CH. 180; L. 1933, CH. 180, § 111; L. 1921, CH. 155, § 2; L. 1917, CH. 624, § 15; L. 1900, CH. 367, § 3; L. 1896, CH. 112, § 16.

When a vote in a town on the question of whether to allow a particular type of retail sale of alcoholic beverages results in an equal number of affirmative and negative votes, the proposal passes.

February 3, 2004

Thomas G. McKeon
Counsel
New York State Liquor Authority
11 Park Place
New York, New York 10007

Formal Opinion
No. 2004-F1

Dear Mr. McKeon:

You have requested an opinion as to the types of retail alcoholic beverage sales that are now permitted in the town of Spencer, a "dry" town in which no retail sales were permitted whatsoever, following a recent vote pursuant to Alcoholic Beverage Control ("ABC") Law § 141. This section permits a town to hold a referendum to allow the voters of the town to determine whether the town will allow the sale of alcohol within its boundaries. See ABC Law § 141. It also specifies the language to be submitted to the voters in such a referendum. See id. No license may be issued contrary to such vote. See id. § 141(3).

Pursuant to this provision, the voters of the town of Spencer considered whether to allow the sale of alcohol within the town's boundaries in the election of November 2003. They were presented with five questions on the ballot. ABC Law § 141(1).

We understand that the results of the vote in Spencer were as follows: on questions 1, 4, and 5, a majority of the voters voted against allowing such sales; and on question 3, a majority of the voters voted in favor of allowing such sales. On question 2, regarding the sale of alcoholic beverages at taverns, the number of votes in favor of and against such sales was equal. The county board of elections certified these results and requested the assistance of the State Liquor Authority in determining the legal impact of the tie vote. You have requested an opinion of this office as to what kinds of licenses may now be issued within the town of Spencer. We conclude that licenses for the retail sale of alcoholic beverages for off-premises consumption and licenses for the retail sale by taverns for on-premises consumption, as provided for in ABC Law § 64-a, may be issued within the town of Spencer.

Analysis

Initially, we note that the results of the November vote as certified by the county board of elections are clear with respect to the retail sale of alcoholic beverages for on-premises consumption by restaurants, hotels, summer hotels, and for off-premises consumption: each of these measures passed or failed by a majority of votes. The results of the vote determine the type of license that may be issued by the Liquor Authority. See ABC Law § 141(3); see also 1961 Op. Att'y Gen. (Inf.) 8, 9. Thus, we conclude that licenses may be issued for the retail sale of alcoholic beverages for off-premises consumption, while licenses for the retail sale of alcoholic beverages for on-premises consumption by restaurants, as provided by ABC Law § 64, hotels, and summer hotels, may not be issued.

Remaining at issue here is whether the retail sale by taverns was approved or rejected by the voters when the number of votes for approval and rejection were equal. We believe that, in light of the text of section 141(3), the tie vote resulted in approval of the measure; that is, retail sale of alcoholic beverages by a tavern is now permitted in Spencer.

Section 141 provides that "[i]f a majority of the votes cast shall be in the negative on all or any of the questions, no person shall, after such election, sell alcoholic beverages in such town contrary to such vote or to the provisions of this chapter . . . ." Id. § 141(3) (emphasis added). Here, there was not a majority of votes in the negative; thus, we believe that the sale as provided in question number 2 is not prohibited.

Our conclusion is supported by the language of ABC Law § 141(4). This subsection provides that if the number of votes cast on the question of sales by restaurants for on-premises consumption is "equal or a majority . . . in the affirmative," then a restaurant licensee is authorized to sell alcoholic beverages for off-premises consumption, even if a majority of the votes cast on the question of sales for off-premises consumption is "in the negative." ABC Law § 141(4). This subsection makes clear that a measure passes if there is either a majority of affirmative votes or an equal number of affirmative and negative votes.

We recognize that this result is inconsistent with the manner in which a tie vote on other ballot proposals would be interpreted. In the other instances of which we are aware, a majority of affirmative votes is required for a referendum to pass. See, e.g., Municipal Home Rule Law §§ 23(1), 24(1)(a); County Law § 101(2); General Municipal Law § 350(2); Town Law §§ 11 and 12; Village Law § 19-1900. In fact, we are aware of no other statute that requires a majority of negative votes to defeat a referendum proposal, and in which a tie vote has the same effect as a majority of affirmative votes.

This was not always the case under the statutes governing "local option." Chapter 112 of the Laws of 1896 enacted section 16 of the Liquor Tax Law, providing that "if the majority of the votes shall be in the negative" on any of the questions, no liquor license could be obtained for that type of sale. L. 1896, ch. 112, § 16. This provision was amended in 1900 to provide that "if the majority of the votes shall be in the negative or if the number of votes cast for and against shall be equal" on any of the questions, then that type of sale would be prohibited within the town. L. 1900, ch. 367, § 3 (emphasis added). This language remained through numerous amendments to the local option provisions until the State repealed the Liquor Tax Law in 1921. L. 1921, ch. 155, § 2.

Upon the modification of the restraints of Prohibition in 1933, New York enacted the Alcoholic Beverage Control Law, which again provided for local option. L. 1933, ch. 180. Unlike the law repealed in 1921, the local option provisions of the 1933 law provided only that "[i]f a majority of the votes cast shall be in the negative," then that type of sale would be prohibited within the town. Id. § 111. The statute included no language whatsoever addressing the effect of a tie vote.

We think it reasonable to believe that the Legislature that enacted the 1933 Alcoholic Beverage Control Law was familiar with the former Liquor Tax Law. Indeed, the sponsor of the bill that was enacted as the Alcoholic Beverage Control Law, John J. Dunnigan, had been a member of the Senate during several years in which the Legislature had amended the local option provisions of the Liquor Tax Law. For all of these reasons, it is reasonable to assume that the Legislature was aware of the language of the local option voting provisions under the Liquor Tax Law and intentionally adopted language providing that a majority of negative votes would be required to defeat a proposal to allow the sale of alcohol within the town.

Finding nothing in the legislative history of section 141 to indicate that the Legislature intended otherwise, we are persuaded that, reading the plain language of section 141, the vote in the town of Spencer for which an equal number of affirmative and negative votes were counted resulted in passage of that proposal. Therefore, we conclude that the voters of Spencer have approved the retail sale of alcoholic beverages at taverns for on-premises consumption. Because the other types of retail sale for on-premises consumption were rejected by majority vote, with respect to on-premises consumption, the Liquor Authority may only issue tavern licenses to eligible applicants within Spencer.

Very truly yours,

ELIOT SPITZER
Attorney General