HON. MICHAEL ROTH Chairman, State Liquor Authority
This is in response to the letter of Warren B. Pesetsky, Counsel to the State Liquor Authority requesting my opinion relating to the following. In the opinion request it is pointed out that the State Liquor Authority requires submission of fingerprint cards for applicants for licenses which are then submitted to the New York State Division of Criminal Justice Services for search. The Agency has placed a $5 fee per print search on cards submitted by the State Liquor Authority. You ask whether or not the Division of Criminal Justice Services is authorized to make such charges of the Authority.
The Division of Criminal Justice Services was created by chapter 399 of the Laws of 1972, as amended, and is covered by Article 35 of the Executive Law. Executive Law, § 837, contained in said Article, provides, in part:
"The division shall have the following functions, powers and duties:
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"8-a. Charge a fee when, pursuant to statute or the regulations of the division, it conducts a search of its criminal history records and returns a report thereon in connection with an application for employment or for a license or permit. The division shall adopt and may, from time to time, amend a schedule of such fees which shall be in amounts determined by the division to be reasonably related to the cost of conducting such searches and returning reports thereon but, in no event, shall any such fee exceed ten dollars. Except as provided in section three hundred fifty-nine-e of the general business law, the fee shall be paid to the division by the applicant and shall accompany the applicant's fingerprint card or application form upon which the search request is predicated." (Emphasis supplied.) (Subdivision 8-a was added by Laws of 1976, chapter 548, effective August 20, 1976.)
9 NYCRR 6051.1, provides, in part:
"Pursuant to the authority contained in section 837 subdivision 8-a, of the Executive Law, the Division of Criminal Justice Services adopts the following schedule of fees, effective September 10, 1976, for conducting a search of its criminal history records and returning a report thereon, in connection with applications for employment, licenses or permits:
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"(b) Checks or money orders shall be made payable to `New York State Division of Criminal Justice Services.' Fee remittances, together with the fingerprint cards and/or application forms, shall be submitted by the agency which provides the license, permit or employment in a pre-addressed envelope, directed to `Division of Criminal Justice Services, Identification and Information Services, Executive Park Tower, Stuyvesant Plaza, Albany, New York, 12203.' Such envelopes may be obtained upon request from the Division of Criminal Justice Services at the above address.
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"(e) Fees.
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"(3) Name search with fingerprint verification. The fee for a name search with fingerprint verification shall be $5."
Alcoholic Beverage Control Law, § 103(6), provides:
"6. Each manufacturer shall file with the liquor authority, at Albany, within thirty days after the granting of a license, an employee's questionnaire for each male person employed by him in any capacity whatsoever, whether on a salary or commission basis. Such questionnaire shall be upon a form prepared by the liquor authority, and shall be accompanied by the fingerprints of each employee together with the photograph of such employee, the size of which shall be two by two inches. No male person shall be employed by any manufacturer in any capacity, unless such manufacturer, within five days after such employee has been employed for ten days, shall file an employee's questionnaire for such new employee." (Emphasis supplied.)
Alcoholic Beverage Control Law, § 104(9), provides:
"9. Each wholesaler shall file with the liquor authority, at Albany, within thirty days after the granting of a license, an employee's questionnaire for each male person employed by such wholesaler, in any capacity whatsoever, whether on a salary or commission basis. Such questionnaire shall be upon a form prepared by the liquor authority, and shall be accompanied by the fingerprints of each employee together with the photograph of such employee, the size of which shall be two by two inches. No male person shall be employed by any wholesaler in any capacity, unless such wholesaler, within five days after such employee has been employed for ten days, shall file an employee's questionnaire for such new employee." (Emphasis supplied.)
Rules of the State Liquor Authority, § 49.5, provides, in part:
"(a) In acting upon applications for bottle club licenses the Authority shall, in addition to inquiring into all other requirements, carefully evaluate the character, fitness, experience, maturity and financial responsibility of each applicant in determining whether public convenience and advantage would be served by the approval of the application.
"(b) Each individual, each partner of a partnership, each director, each of the principal officers and each stockholder holding 10 per cent or more of the stock of any applicant for a bottle club licensee shall file his fingerprints with the Authority or local board on forms prescribed by the State Liquor Authority at the time of the filing of the application. It shall be the obligation of each licensee to file the fingerprints of each employee with the Authority within five days after the commencement of such employment." (Emphasis supplied.)
From all of the foregoing, I conclude that under the provisions of Alcoholic Beverage Control Law, §§ 103(6) and 104(9), manufacturers and wholesalers must file with the State Liquor Authority, at their own expense, questionnaires accompanied by fingerprints for each male person they employ and under Rules of the State Liquor Authority, § 49.5, each individual, each partner of a partnership, each director, each of the principal officers and each stockholder holding ten percent or more of the stock of an applicant for a bottle club license must file with the State Liquor Authority or local board, at his own expense, his fingerprints on a prescribed form. The Rule also provides that a bottle club licensee is obligated to file fingerprints with the Authority for each of its employees.
Consequently, in answer to your question, the fees charged by the Division of Criminal Justice Services are not charged to the State Liquor Authority, but rather are fees charged to the applicants for licenses. The Authority should, therefore, collect the fees from the applicants and forward them to the Division with the request for the fingerprint check.