Veteran non-attorney consultant challenges legality of ‘attorney certification’ program
ALBANY, NY. – The governing body of the state liquor authority is expected to vote Wednesday to scrap a controversial program that the agency’s top two licensing officials say does not reduce licensing backlogs, comes as a “detriment” to 90 percent of applicants and farms out regulatory functions to lawyers paid extra by clients hoping to cut the line.
“A large percentage of applicants paying attorneys extra money to expedite their applications receive nothing for the extra expense,” Amy Male, an agency manager who runs the so-called “attorney certification” program, said in a highly critical Nov. 4 memo to the three-member panel. “Some of the most experienced attorneys who practice before the SLA are repeat offenders in filing self-certified applications that need to be removed from the program … [We found] that self-certified applications generally contain just as many mistakes and errors as non-certified applications.”
A review of the program by Male and the senior official in the Licensing Bureau, Deputy Commissioner Adam Roberts, was initiated in response to a July 27 challenge filed by John Springer, a veteran non-attorney alcohol licensing consultant and owner of this website. Roberts left the agency the day after he signed the memo. No reason was given and his departure was not announced.
Both Springer’s challenge and Roberts’ recommendation that the certification program be scrapped will be heard by the board when it meets Nov. 10 in Albany.
“I knew the program was illegal because the SLA bypassed the formal process for creating such programs required by state law,” said Springer, 57, a former bar owner from Port Jefferson who represents applicants and licensees statewide. “But when I read the memos filed last week by Mr. Roberts and Ms. Male, I was floored. This program was a scam on the public from Day One. The memos corroborate everything I’ve been saying for years. I don’t see how the agency can let this go on.”
Under the program started in 2009 under then Chairman Dennis Rosen, the SLA offered expedited reviews of retail applications certified by outside attorneys to be complete and accurate. Initially, applications not requiring hearings were approved within weeks or even days. Non-certified applications waited four to six months to be reviewed 2009. Wait times now are 20 to 26 weeks, according to the Licensing Bureau.
As currently constituted, certified applications are reviewed about 30 days earlier than applications filed on the same day.
In his own Nov. 4 memo to the Members, Roberts said that when he arrived at the agency in 2019 he was struck by the unfairness of a two-track system for applicants based on their ability or willingness to pay attorneys more to certify their applications. “The SLA was favoring those with greater financial resources – the means to pay an attorney to prepare a self-certified application,” Roberts wrote. “A second concern I had (and have) concerns the SLA’s decision to transfer one its main responsibilities in the licensing process [to certifying attorneys].”
Springer made those same points in his July 27, 2021, request for a Declaratory Ruling. The request revised on Oct. 22.
“Does a program, policy or practice whereby shorter processing times are granted to retail applicants certified to be complete and accurate by applicants and their attorneys than to other applicants constitute a ‘rule’ subject to the formal rulemaking requirements …?” Springer asked in his filing. “Absent a rule adopted pursuant to [law] …. by what statutory authority, implied or explicit, does the New York State Liquor Authority conduct only partial reviews of ‘attorney certified’ retail license applications while subjecting others to full reviews?”
‘I suspect that hundreds (if not thousands) of self-certified applications that would not have passed an SLA review were approved’ in the early years of the program.
– Adam ROBERTS, DEPUTY commissioner of licensing
Springer contends that a formal rule and public hearing were required because the program significantly impacts the public. The SLA’s lead attorney argued in his own memo to the board that the program is merely “forms and instructions” and an “internal management” practice – both of which would be exempt from the rulemaking requirement contained in Article IV, Section 8 of the state Constitution and Section 202 of the state Administrative Procedure Act.
“That’s nonsense,” Springer said. “They fast-tracked attorney certified applications without fully reviewing them and by ignoring deficiencies and omissions. The memos released last week will be Exhibits A and B if I have to go to court. This program has far-reaching implications for the public, applicants and participating attorneys. It’s not about ‘forms and instructions.’ They bypassed the law.”
Neither the SLA nor Gov. Kathy Hochul’s office responded to requests for comment, which liquorlicensenewyork.com promised to publish in their entirety.
REVIEWS IGNORED DEFICIENCIES, OMISSIONS
In her memo, Male told the Members that in the early years of the program examiners were told to review only a few pages of a certified application and to ignore missing documents or “deficiencies” in other parts of the application.
“Even if a licensing examiner noticed that important documents were missing from the application, the application was to be passed along for a determination anyway. In other words, we would ignore application deficiencies we actually knew about to move applications along,” Male wrote.
According to Male, random post-approval audits of certified applications were done for the first two years and about 50 attorneys were barred from further participation. Although attorneys swore to the veracity of the certifications under the penalty of perjury, none were prosecuted. And by the time Roberts took over the licensing bureau in 2019, audits had stopped altogether.
“I suspect that hundreds (if not thousands) of self-certified applications that would not have passed an SLA review were approved” in the early years of the program, Roberts told the Members in his memo.
Roberts concluded his memo with a recommendation that the program be discontinued because, in his view, the program is ineffective, unfair and does not do what it was intended to do. Specifically, Roberts offered these observations:
– “This two-tier system comes as a detriment to the applicants who do not have the financial means to pay an attorney to certify their application.”
– “… The Program anticipated substituting attorney review for Licensing Examiner review.”
– “Dedicating personnel to … less than 10% of the SLA’s license applications [that are certified] and taking them away from reviewing the other 90% makes little sense.”
– “… two-thirds of self-certified applications are not ready for a licensing determination.”
– “The only people that benefit from the Program are (a) a very small percentage of applicants who get their applications approve one month earlier (at best), because they have the means to pay an attorney, and (b) the industry attorneys who collection additional fees for their work.”
– “… the Program facilities a two-tier system that creates a disadvantage for applicants that cannot afford to pay an attorney to self-certify their application.”
– “The minor benefits of the Program are only recognized by a small percentage of our applicants and come at the expense of the larger population.”
For Springer, the revelations in the two memos released Nov. 5 came as a vindication.
“I have been saying these things for years. It shouldn’t have taken my challenge to the legality of the program to get the SLA to take my complaints seriously,” Springer said. “I fully suspect the Members are going to discontinue the program while ruling that the SLA had the legal authority to create this scheme. If they do, I’ll be in court next month. Agencies that enforce the law have to follow the laws to apply to them.’
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The Members of the NYS Liquor Authority are expected to take up Springer’s legal question and Roberts’ recommendation that the program be discontinued at 11 a.m. ET. The meeting begins at 10 a.m. in the ground floor meeting room of the Alfred E. Smith State Office Building at 80 S. Swan St., Albany, NY.