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Matter of Beer Garden v. N.Y. St. Liquor

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 1991
171 A.D.2d 565 (N.Y. App. Div. 1991)

Opinion

March 26, 1991


Petitioner, The Beer Garden, Inc. ("Beer Garden"), is a New York Corporation with its principal place of business located at 515 West 18th Street in Manhattan. Respondent New York State Liquor Authority ("SLA") issued Beer Garden a license in October 1986 for the on-premise sale of liquor at the licensed premises, a night club. A litany of incidents involving patrons of the club took place, many of which required police intervention. In addition to these, on January 20, 1987, an officer of the New York Police Department, aged 20, acting in an undercover capacity, allegedly purchased, without showing identification or proof that he was 21 years of age, bottles of beer from four different bartenders. Two proceedings were thereafter brought by the SLA for violation of rule 36.1 (q) of the State Liquor Authority ( 9 NYCRR 53.1 [q]) and section 65 Alco. Bev. Cont. of the Alcoholic Beverage Control Law.

Following the decision of the SLA on August 9, 1990, Beer Garden commenced this article 78 proceeding, transferred to this Court pursuant to CPLR 7804 (g), to challenge the determinations of the SLA which, respectively, revoked and recalled Beer Garden's license for on-premises sale of alcoholic beverages and imposed a $1000 bond claim for the noise and underage determinations.

Beer Gardens contends, and we agree, that because Commissioner Sharon Tillman was counsel to the SLA during the period of time that the charges against it where formulated, served and prosecuted, she was required, upon request of Beer Garden, to recuse herself from voting in this matter. (See, Matter of Bayside Bowling Recreation Center v New York State Liq. Auth., 171 A.D.2d 576.) To allow the determination to stand were Tillman had been SLA counsel and appointed SLA Commissioner during the pendency of these proceedings would, in our view, blur the separate and distinct functions of prosecution and adjudication.

Accordingly, the petition is granted, to the extent of annulling the two administrative orders issued by the SLA, and the matter remanded to the SLA for further proceedings, from which Commissioner Tillman is to be recused.

Concur — Murphy, P.J., Sullivan, Carro, Milonas and Rubin, JJ.


Summaries of

Matter of Beer Garden v. N.Y. St. Liquor

Appellate Division of the Supreme Court of New York, First Department
Mar 26, 1991
171 A.D.2d 565 (N.Y. App. Div. 1991)
Case details for

Matter of Beer Garden v. N.Y. St. Liquor

Case Details

Full title:In the Matter of BEER GARDEN, INC., Petitioner, v. NEW YORK STATE LIQUOR…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 26, 1991

Citations

171 A.D.2d 565 (N.Y. App. Div. 1991)