Opinion
October 22, 1970
Appeal from the Ontario Special Term.
Present — Goldman, P.J., Witmer, Gabrielli, Moule and Henry, JJ.
Determination of the State Liquor Authority, dated August 10, 1970, canceling petitioner's restaurant liquor license unanimously annulled on the law and facts and in the exercise of discretion, without costs, and State Liquor Authority ordered to comply with the direction in accordance with the memorandum. Motion for a stay dismissed as academic. Memorandum: Petitioner was first licensed on July 28, 1967, and his license was successively renewed on October 1, 1967, October 1, 1968 and October 1, 1969. In early June, 1969 an investigation of the conduct of petitioner's business was commenced which resulted in charges being filed in January, 1970. The first charge, alleging that petitioner violated section 111 Alco. Bev. Cont. of the Alcoholic Beverage Control Law in permitting a corporation controlled by petitioner to "avail" itself of his license, was dismissed. The two remaining charges asserted that the petitioner (1) permitted one Frank F. Fischer to "avail" himself of the license and (2) that the licensee failed to notify the respondent of loans made by the corporation owned and controlled by him. The respondent contends that petitioner's conduct in connection with these charges was of such an improper nature as to warrant the cancellation of his license. We disagree. The record discloses that the investigation of these charges was commenced approximately three months following Fischer's discharge by petitioner and, further, that much of the evidence upon which respondent based its determination was known to it at the time of the renewal of the license in 1969. It also appears that petitioner's corporation was formed for the sole purpose of facilitating bank loans at corporate interest rates which funds were used in the operation of the business, all of which was done upon the advice of his accountant. The record also discloses that the loans made by his corporation from local banks were actually personally guaranteed by petitioner. Additionally, it is clear that any alleged violation of section 111 Alco. Bev. Cont. of the Alcoholic Beverage Control Law was technical in nature and completely devoid of any illegal intent and the total of the alleged acts is of a de minimis significance (cf. Matter of Lakeside Country Club v. New York State Liq. Auth., 34 A.D.2d 1100; Matter of Mauriello v. Hostetter, 35 A.D.2d 644; Matter of 1426 Bar Grill v. New York State Liq. Auth., 32 A.D.2d 904). There has been no other claimed violation since the issuance of the original license. In our judgment, bearing in mind the petitioner's previous good record, the lack of any intentional violation and the circumstances surrounding Fischer's employment, a suspension of 20 days would have been sufficient and a more appropriate punishment. (CPLR 7803, subd. [3].) Petitioner's license expired September 30, 1970, and he has been without a license since that date. If the Authority disapproved the renewal for the 1970-1971 license year solely upon its determination of the charges herein, the Authority is directed to renew the license. ( Matter of 1426 Bar Grill v. New York State Liq. Auth., supra.)