Opinion
June 19, 1989
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.
There is substantial evidence in the record to support the respondent's determination that the petitioner violated Alcoholic Beverage Control Law § 106 (5) by permitting the sale of liquor during prohibited hours and also violated Alcoholic Beverage Control Law § 106 (6) and rule 36.1 (t) of the Rules of the New York State Liquor Authority ( 9 NYCRR 53.1 [t]) by having suffered or permitted gambling and keeping a "Joker Poker" machine on its premises (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176). Although the testimony at the hearing with respect to the first charge of permitting the sale of liquor during prohibited hours was conflicting, the conflict was for the administrative agency to resolve and its findings should not be disturbed by this court (see, Matter of Silberfarb v. Board of Coop. Educ. Servs., 60 N.Y.2d 979; Matter of Collins v. Codd, 38 N.Y.2d 269, 270-271). With respect to the determination sustaining the second and third charges concerning the "Joker Poker" game, it is well settled that such machines constitute gambling devices and even if the only value awarded is a free game, the keeping of such machines violates the statutory provisions regarding gambling on premises licensed for on-the-premises consumption of alcohol (see, e.g., Matter of Plato's Cave Corp. v. State Liq. Auth., 68 N.Y.2d 791; People v. Herman, 133 A.D.2d 377; Matter of MNDN Rest. v. Gazzara, 128 A.D.2d 781). The fact that the petitioner was licensed by the New York City Department of Consumer Affairs to maintain the "Joker Poker" machine on its premises does not vitiate the respondent's finding that the petitioner permitted or suffered gambling on its premises (see, Matter of Plato's Cave Corp. v. State Liq. Auth., supra).
In light of all the circumstances the penalty imposed was not so disproportionate to the offense as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222). Thompson, J.P., Lawrence, Rubin and Balletta, JJ., concur.