Opinion
June 26, 1989
Adjudged that the petition is granted, the determination is annulled, on the law, with costs, and the charges are dismissed.
Following an administrative hearing, the respondent New York State Liquor Authority adopted the findings of its Hearing Officer and determined that the petitioner violated Alcoholic Beverage Control Law § 65 (1), in that it sold, delivered or gave away or permitted to be sold, delivered, or given away, alcoholic beverages to a person under the age of 21 years on August 22, 1987. Upon our review of the record, however, we find this determination to be unsupported by substantial evidence.
In order to find that a licensee has "caused or permitted" the service or delivery of alcoholic beverages to a minor, the conduct must be "open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented" (Matter of 4373 Tavern Corp. v. New York State Liq. Auth., 50 A.D.2d 855, 856, citing Matter of Migliaccio v. O'Connell, 307 N.Y. 566; Matter of Cat Fiddle v State Liq. Auth., 24 A.D.2d 753; Matter of Austin Lemontree v. New York State Liq. Auth., 147 A.D.2d 476).
In the instant case, the record establishes that a minor was seated at a table 15 feet away from the bar in the petitioner's crowded premises, which consisted of a restaurant and bar, when her boyfriend, who was over the age of 21, purchased a mixed drink and delivered it to her. The minor did not go to the bar herself, and uncontroverted testimony established that she was blocked from the bartender's view by a crowd three people deep surrounding the bar. In addition, the minor was in the licensed premises for no more than 20 minutes, and had consumed only two sips of the mixed drink before she was approached by undercover officers. The record therefore lacks substantial evidence to establish that the petitioner knew, or should have known, of the delivery of the mixed drink to the minor, or that the delivery could have been prevented by the exercise of reasonable diligence (see, Matter of 4373 Tavern Corp. v. New York State Liq. Auth., 50 A.D.2d 855, 856, supra; Matter of Park II Villa Corp. v. New York State Liq. Auth., 141 A.D.2d 646, 647; Matter of Panacea Tavern v. New York State Liq. Auth., 144 A.D.2d 562, 563). Thompson, J.P., Rubin, Sullivan and Rosenblatt, JJ., concur.