News Agencies Cannot Clearly Cover Whether New York Bans Bottomless Brunches

The New York Post reports:

A little-known New York State law prohibits “selling, serving, delivering or offering to patrons an unlimited number of drinks during any set period of time for a fixed price” according to the State Liquor Authority’s website.

The Post goes on to conclude that restaurants cannot give patrons unlimited alcoholic beverages. For example, "bottomless brunches," where restaurants offer unlimited mimosas for a certain fee with brunch food, are prohibited. Or so the Post claims:

Latin hot spot Calle Ocho on the Upper West Side offers a $15 special that keeps customers swimming in unlimited sangria as long as they have a plate of food sitting in front of them, which is illegal under the SLA law.

Town Hall laments that this is "big government at work." The New Republic tells us that this will prevent people from eating and drinking more than they should. Jezebel warns that serious enforcement is on the way and that "s**t's about to get real."

But wait! Before accepting these conclusions, it might be good to look at the law itself. Here is the relevant provision: N.Y. ABC. LAW § 117-a:

1. No licensee, acting individually or in conjunction with one or more licensees, shall: 

(a) offer, sell, serve, or deliver to any person or persons an unlimited number of drinks during any set period of time for a fixed price. 

(b) allow a person, agent, party organizer, or promoter, as such terms shall be defined by the authority in rule and regulation, to offer, sell, serve, or deliver to any person or persons an unlimited number of drinks during any set period of time for a fixed price. 

(c) advertise, promote, or charge a price for drinks that in the judgment of the authority creates an offering of alcoholic beverages in violation of the purposes and intent of this section, or which in the judgment of the authority is an attempt to circumvent the intent and purposes of this section, such as, but not limited to, offerings of free drinks, or multiple drinks for free or for the price of a single drink, or for a low initial price followed by a price increment per hour or other period of time, or for such a minor amount that in the judgment of the authority the pricing would constitute an attempt to circumvent the intent and purposes of this section. 

2. As used in this section, licensee means and includes the licensee, and any employees, or agents of such licensee. 

3. With respect to an individual licensee, this section shall not apply to private functions not opened to the public, such as weddings, banquets, or receptions, or other similar functions, or to a package of food and beverages where the service of alcoholic beverages is incidental to the event or function. 

4. The authority shall investigate any documented allegation of a violation of this section upon a complaint by any person. 

5. The authority shall promulgate rules and regulations necessary to implement the provisions of this section. 

6. The provisions of this section shall not apply to the holder of a temporary permit under subdivision two of section one hundred five-a of this article.

That's a pretty dense statute, but it looks like these news outlets might be right. But before reaching that conclusion, there's at least one line in there that might be worth reading closely. It's subsection three. Here it is again:

3. With respect to an individual licensee, this section shall not apply to private functions not opened to the public, such as weddings, banquets, or receptions, or other similar functions, or to a package of food and beverages where the service of alcoholic beverages is incidental to the event or function.

This is not a very nice section. All of those "ors" that show up near the end of the list make it very unclear how that list should be read. Maybe the section discusses private functions and defines them as everything following in the comma-and-or-ridden list. Under this inclusive reading, the statute would translate to:

This section shall not apply to private functions not opened to the public. "Private functions not opened to the public" includes: (1) weddings; (2) banquets; (3) receptions; (4) other similar functions; (5) a package of food and beverages where the service of alcoholic beverages is incidental to the event or function.

If this is how the statute is to be read, then all of the items on the list would be qualified by being "not opened to the public." This would mean that restaurants with bottomless brunches would not fall under this exception, since those restaurants are open to the public.

But this reading would merge the "package of food and beverages" part of the section with the rest of the list. This would seem to ignore the "or" that precedes that part of the statute. It would be grammatically incorrect to end a list with two "ors" -- so the grammatically correct default would be to conclude that the final item mentioned in that section is not part of the overall list. Furthermore, reading that "package" section separately is sensible because it follows the "other similar functions" item, which seems to be a catch-all provision that would make sense to put at the end of a list.

On the other hand, separating the "package of food and beverages" item from the rest of the list would seem to ignore the final words of the statute that qualify that package as being "incidental to the event or function," suggesting that the package deal needs to be related to a private function not open to the public.

In sum, the third section of this rule is pretty unclear. So it would make sense to ask the government that will enforce the rule what the regulation means. Turns out that Business Insider did just that. The New York State Liquor Association (SLA) responded:

Serving unlimited drinks to a patron is prohibited under the Alcoholic Beverage Control law, and instances of over serving by our licensees will be investigated and prosecuted. However, there is a limited exception in the statute when the service of alcohol is incidental to the event, such as in the case of certain brunch specials. Even under these limited exceptions, licensees still have a legal obligation not to over serve patrons. The SLA will continue to take a balanced regulatory approach by allowing licensees to conduct specials where alcohol is an accompaniment, while simultaneously cracking down on specials that promote excessive drinking. [emphasis in original]

It looks like the government is adopting the reading of the statute where the "package of food and beverages" part of the rule is not qualified by the "private function not open to the public" language at the beginning of section three. And the SLA confirmed to Business Insider that bottomless brunches are permitted by the statute under its reading.

The news outlets reporting that bottomless brunches are illegal aren't completely at fault for this mistake. After all, the rule they are reporting on is confusingly worded leading to two contrary, potential meanings. In these confusing cases, it is a good idea to go to those who will be enforcing the law to see what they think the law is. News agencies reporting on the story should have done that before rushing to conclusions.