Opinion
2013-09-18
In the Matter of S & S PUB., INC., petitioner, v. NEW YORK STATE LIQUOR AUTHORITY, respondent.
Carreras & McCallen PLLC, New York, N.Y. (Matthew Leone of counsel), for petitioner. Jacqueline P. Flug, Albany, N.Y. (Mark D. Frering and Michael Ammirato of counsel), for respondent.
Carreras & McCallen PLLC, New York, N.Y. (Matthew Leone of counsel), for petitioner. Jacqueline P. Flug, Albany, N.Y. (Mark D. Frering and Michael Ammirato of counsel), for respondent.
Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Liquor Authority dated May 3, 2012, as adopted the recommendation of an administrative law judge dated February 20, 2012, made after a hearing, sustaining two charges that the petitioner had violated Alcoholic Beverage Control Law § 65(1), and imposed a civil penalty in the sum of $6,000.
ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
Alcoholic Beverage Control Law § 65 provides, in relevant part, that:
“[n]o person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to ... [a]ny person, actually or apparently, under the age of twenty-one years.”
“ ‘Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence’ ” ( Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 A.D.3d 648, 651, 958 N.Y.S.2d 794, quoting Matter of Albany Manor, Inc. v. New York State Liq. Auth., 44 A.D.3d 759, 759, 844 N.Y.S.2d 52). Substantial evidence is “[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt” ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183). “ ‘The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable’ ” (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 A.D.3d at 652, 958 N.Y.S.2d 794, quoting Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [internal citations omitted] ).
Here, contrary to the petitioner's contention, the determination of the respondent, the New York State Liquor Authority, sustaining two charges that the petitioner violated Alcoholic Beverage Control Law § 65(1), is supported by substantial evidence ( see Matter of JNJ Enters., Inc. v. New York State Liq. Auth., 79 A.D.3d 750, 911 N.Y.S.2d 915;Matter of S & S Pub, Inc. v. New York State Liq. Auth., 49 A.D.3d 654, 655, 852 N.Y.S.2d 804;Matter of 294 Grand Ave. Grocery Corp. v. New York State Liq. Auth., 12 A.D.3d 521, 783 N.Y.S.2d 874).
In addition, the penalty imposed is not so disproportionate to the offense as to be shocking to one's sense of fairness ( see Matter of S & S Pub, Inc. v. New York State Liq. Auth., 49 A.D.3d at 655, 852 N.Y.S.2d 804;Matter of 294 Grand Ave. Grocery Corp. v. New York State Liq. Auth., 12 A.D.3d at 522, 783 N.Y.S.2d 874).