Opinion
June 5, 1989
Appeal from the Supreme Court, Kings County (Cohen, J.).
Ordered that the judgment is affirmed, with costs.
The petitioner is a small grocery store and newsstand which holds a license to sell beer for consumption off the premises (see, Alcoholic Beverage Control Law § 105). The petitioner also houses an electronic "Joker Poker" video game in which a successful player may win credits for additional games. "Joker Poker" games are primarily games of chance and hence constitute gambling devices (see, Matter of Plato's Cave Corp. v. State Liq. Auth., 115 A.D.2d 426, affd 68 N.Y.2d 791). The New York State Liquor Authority (hereinafter the Authority) charged the petitioner with a violation of its rule 36-1 (M) ( 9 NYCRR 53.1 [m]) which prohibits gambling on premises licensed to sell alcoholic beverages.
Contrary to the Authority's contentions, it was without authority to apply the instant rule to premises licensed to sell alcoholic beverages for consumption off the premises. The Authority may generally only promulgate rules pursuant to express statutory authority (see, Rotunno v. City of Rochester, 120 A.D.2d 160, affd 71 N.Y.2d 995; Alcoholic Beverage Control Law § 115). While Alcoholic Beverage Control Law § 106 (6) prohibits gambling within premises licensed to sell alcoholic beverages for consumption on the premises, there is no similar legislative prohibition concerning licensees who hold licenses to sell alcoholic beverages for consumption off the premises. Absent such a delegation of power to regulate gambling on premises holding licenses to sell liquor off the premises, "the Authority may not assume such general rule-making power" (Murray v. State Liq. Auth., 133 A.D.2d 569, rearg granted 135 A.D.2d 378, vacated and revd on other grounds 139 A.D.2d 461, appeal dismissed 72 N.Y.2d 951, lv denied 72 N.Y.2d 810).
Moreover, we reject the contention that Alcoholic Beverage Control Law §§ 2, 17, 114 and 118 confer upon the Authority the implied power to promulgate rules which are inconsistent with the apparent intent of the Legislature (see, Matter of Gross v. New York City Alcoholic Beverage Control Bd., 7 N.Y.2d 531, rearg denied 8 N.Y.2d 934; see also, McKinney's Cons Laws of NY, Book 1, Statutes § 240). Accordingly, as the Authority had neither the express nor the implied authority to apply the instant rule to the holder of a license to sell alcoholic beverages for consumption off the premises, its determination was properly annulled.
We have considered the remaining contentions and find them to be without merit. Kooper, J.P., Spatt, Harwood and Rosenblatt, JJ., concur.