Opinion
March 14, 1950.
Appeal from Appellate Division of the Supreme Court in the First Judicial Department.
Caesar L. Pitassy of counsel ( William J. O'Hara, attorney), for petitioner.
John Di Leonardo of counsel ( Alvin McKinley Sylvester, attorney), for respondents.
The restaurant liquor license of petitioner has been suspended for a period of five days upon a determination by the State Liquor Authority, after a hearing, that petitioner violated subdivision 6 of section 106 Alco. Bev. Cont. of the Alcoholic Beverage Control Law "in that it suffered or permitted gambling on the licensed premises resulting in the arrest" of two persons on August 10, 1949. Petitioner contends that there was a failure of competent proof to support the finding. The statute (Alcoholic Beverage Control Law, § 106, subd. 6) provides in part that "No person licensed to sell alcoholic beverages shall suffer or permit any gambling on the licensed premises, * * *."
To sustain a finding that petitioner had violated this statute, it was incumbent upon the Authority to establish by substantial evidence that gambling existed on the licensed premises and that the licensee suffered or permitted such gambling to take place. ( Matter of Arnold Reuben, Inc. v. State Liquor Authority, 268 App. Div. 981, affd. 294 N.Y. 730; Matter of Stevensville Lake Holding Corp. v. O'Connell, 269 App. Div. 804.) To permit or suffer an act usually implies the power to prohibit, prevent or hinder it. ( Robertson v. Ongley Electric Co., 82 Hun 585, affd. 146 N.Y. 20; Gregory v. United States, 17 Blatchf. 325.)
The testimony adduced at the hearing showed that on the afternoon of August 10, 1949, two police officers entered petitioner's premises and observed, during a period of twenty minutes, three patrons consult scratch sheets and then talk to a man standing at the end of the bar and finally hand him money. Patrick Dunne, a bartender employed by petitioner, according to one of the officers, referred another customer to the alleged bookmaker for the purpose of having the latter receive a wager. Consultation of the scratch sheets, according to the officers, was not done openly. The bartender and the alleged bookmaker were thereupon placed under arrest. At the time of the occurrences described, the bar was fairly crowded with some twenty-five or thirty patrons. The criminal charges against the men arrested were disposed of about a month later in the Court of Special Sessions of the City of New York and each was discharged on his own recognizance. Neither one was adjudged guilty of any violation of the Penal Law.
Thomas B. Dineen, owner of 50% of the stock of petitioner, was on duty behind the bar and in charge of the premises on the afternoon in question. Dineen stated that he did not observe anyone making wagers and that he was not aware of the presence of the police officers until he saw them escorting the bartender and the alleged bookmaker out of the premises. Dineen had given specific instructions to all of his employees that gambling in any form was not to be tolerated. Dunne, the bartender, immediately upon his arrest, was suspended by his employer pending the outcome of the criminal charges against him. At the hearing before the Authority there was no testimony that the man receiving the bets was a known bookmaker. On the contrary it appeared that he was steadily employed in a responsible position. Petitioner has been in business for over fifteen years at the same address and no complaints or violations of any kind had ever been filed against him. Dunne, the bartender, had been in its employ for about nine or ten years.
Even if it be assumed there was sufficient evidence that on this one day in question wagers on horses were being received by a patron on the premises with the knowledge of the bartender, that would not necessarily be sufficient. There must be a showing that the licensee knew or in the proper supervision of the business should have known of the gambling and failed to act. Here there is no such proof. Dineen, who was present and in charge, testified that he had no knowledge of what occurred. The proprietor of premises licensed to sell alcoholic beverages may be held for the acts of his agent but there must be some evidence that such acts were expressly authorized or were impliedly permitted. Proof that a bartender on but a single occasion made a wager himself and then had suggested to a patron that he might do likewise, standing alone is not enough to support a charge that his employer, the licensee, had suffered or permitted gambling upon the licensed premises. In Matter of Abrams v. Bruckman ( 263 App. Div. 593) this court, at page 594, DORE, J., said: "A single violation of the Alcoholic Beverage Control Law may constitute sufficient basis to cancel a license, and the owner of licensed premises may be liable for the acts of his agent; but the slender evidence adduced at the hearing herein was wholly insufficient to sustain the charge made against the licensee and cause forfeit of the refund. That a bartender on a single occasion had two policy slips in his own possession for which he received a suspended sentence as a player, is not sufficient, standing alone, to sustain the charge that his employer, the licensee, had suffered or permitted gambling upon the licensed premises in violation of subdivision 6 of section 106. * * * Here there was no proof whatever that the owner suffered or permitted gambling on the premises."
We do not question the right of an administrative agency such as the State Liquor Authority to pass upon the credibility of witnesses who testify in a hearing had by such board. "The courts may not weigh the evidence or reject the choice made by the Board where the evidence is conflicting and room for choice exists." ( Matter of Stork Restaurant, Inc., v. Boland, 282 N.Y. 256, 267.) However, where as here there is insufficient proof in the record to warrant a finding that the licensee suffered or permitted gambling on the licensed premises, the administrative agency may not reach an opposite determination. We are, of course, in full accord with the efforts of the Authority to promote the public good by rigidly enforcing the provisions of the Alcoholic Beverage Control Law. Yet, petitioner may not be deprived of its paid for privilege to conduct a bar and restaurant, without just cause. ( Matter of Toyos v. Bruckman, 266 App. Div. 28, motion for leave to appeal denied 266 App. Div. 885. )
The determination should be accordingly annulled and the suspension order of December 29, 1949, is vacated.
PECK, P.J., GLENNON, DORE and SHIENTAG, JJ., concur.
Determination unanimously annulled and the order of suspension dated December 29, 1949, vacated, with $10 costs and disbursements to the petitioner. Settle order on notice.