Summary
In Matter of Dawson v New York State Liq. Auth. (226 AD2d 876, 876 [3d Dept 1996]), the Third Department annulled a determination of the SLA for an alleged sale to a minor.
Summary of this case from 25-24 Café Concerto Ltd. v. New York State Liquor AuthorityOpinion
April 11, 1996
Of the several charges filed by respondent against petitioner, one remains in issue. Respondent alleged that on October 13, 1990, petitioner violated Alcoholic Beverage Control Law § 65 (1) by selling, delivering or giving away alcoholic beverages to two persons under the age of 21 years. After a hearing, the Administrative Law Judge held that the charge had not been sustained. Respondent rejected this finding, sustained the charge, suspended petitioner's on-premises liquor license and imposed a $1,000 bond claim. Petitioner commenced this proceeding contending that respondent's determination is unsupported by substantial evidence. Supreme Court transferred the matter to the Second Department.
In order to find that the licensee "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; see, Matter of Park II Villa Corp. v. New York State Liq. Auth., 141 A.D.2d 646). In this case, the only direct testimony implicating petitioner was given by a police officer who testified that, while he was outside the premises, he observed two minors drinking from bottles of beer. He was familiar with the two because they had previously been arrested. The officer observed them through a window from a distance of 12 to 15 feet. The officer admitted that he only saw the two minors drinking one bottle each and that he observed them for only a "couple of minutes". He also testified that the two were standing at a table located approximately 10 feet from the bar which was extremely crowded. This evidence is insufficient to justify the conclusion that petitioner knew, or should have known, of the manner in which the beer was obtained or that the beer obtained was ultimately intended for delivery to the minors for their consumption ( see, Matter of Panacea Tavern v. New York State Liq. Auth., 144 A.D.2d 562; Matter of Park II Villa Corp. v New York State Liq. Auth., supra; see also, Matter of Bennigan's of N.Y. v. New York State Liq. Auth., 151 A.D.2d 747, lv denied 75 N.Y.2d 703). In sum, the record lacks evidence that petitioner knew or should have known that the minors were drinking on the single occasion involved, that the conduct was open and observable or that it could have been prevented by the exercise of reasonable diligence ( see, Matter of Bennigan's of N.Y. v. New York State Liq. Auth., supra; Matter of Park II Villa Corp. v. New York State Liq. Auth., supra; cf., Matter of S R Lake Lounge v New York State Liq. Auth., 87 N.Y.2d 206; Matter of Austin Lemontree v. New York State Liq. Auth., 147 A.D.2d 476, affd 74 N.Y.2d 869). Accordingly, the determination is not supported by substantial evidence and must be annulled.
We do, however, reject petitioner's contention that respondent's conduct in pursuing the charge against petitioner was so egregious or frivolous as to warrant the imposition of sanctions.
Mercure, White, Casey and Spain, JJ., concur. Adjudged that the determination is annulled, with costs, and petition partially granted.