Legal Memorandum: Void for Vagueness Doctrine

Issue: Whether New York’s Alcoholic Beverage Control Law 106(6) Is Unconstitutionally Vague, Overbroad, and Violates First and Fourteenth Amendment Rights.

Prospective relief, including declaratory and injunctive relief may be had pursuant to 42 U.S.C. § 1983 against state officials acting in their official capacity.  Such individuals are considered “persons” subject to suit within the meaning of § 1983 notwithstanding the Eleventh Amendment.  See Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) and Ex Parte Young, 209 U.S. 123 (1908)).

To the extent relevant, § 106(6) provides that “[n]o person licensed to sell alcoholic beverages shall suffer or permit . . . such premises to become disorderly.”  The word “disorderly” is not defined.     Section 106(6) is a criminal statute; its violation constitutes a misdemeanor.  N.Y. Alco. Bev. Cont. Law § 130.  Such a statute violates the due process clause of the Fourteenth Amendment and is unconstitutionally vague if it “fails to clarify what is contemplated.”  Kolender v. Lawson, 461 U.S. 352, 355 (1983).

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.  Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine “is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.”  […]

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