New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Matter of AJK CafE, Inc. v New York State Liquor Authority

In this Article 78 proceeding, Petitioner appealed a determination of the New York State Liquor Authority finding him in violation of 9 NYCRR 48.3 due to employment of an unlicensed security guard. The Liquor Authority imposed a $2,500 civil penalty and an alternative penalty of a 15 day suspension of Petitioner’s liquor license plus a $1,000 bond forfeiture. Petitioner brought about this Article 78 appeal to review the Liquor Authority’s determination.

The Court felt that substantial evidence established that Petitioner was indeed in violation of 9 NYCRR 48.3 in his employment of an unlicensed security guard. Though Petitioner insisted that the employee in quest was only a busboy that was mistakenly observed to be a security guard by the detective he did not offer any admissible proof to support his position. Since the Petitioner failed to present adequate evidence, the Court found no basis to disturb the decision of the Liquor Authority.

Accordingly, the Supreme Court confirmed the determination, denied the petition, and dismissed the proceeding.

Read more about this Article 78 Liquor Authority case.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Café Concerto Ltd. v New York State Liquor Authority

In this Article 78 proceeding, petitioner appealed a determination of the New York State Liquor Authority which imposed a civil penalty for the violation of Alcoholic Beverage Control Law § 65(1) and State Liquor Authority Rule 54.2. In January of 2006, police officers responded to a complaint of underage drinking at petitioner’s premises. Four charges were brought against petitioner: allowing the sale of alcohol to an underage person, failure to exercise adequate supervision over the conduct of the business, permitting the premises to become disorderly, and allowing to premises to become disorderly by permitting an altercation to occur.

A hearing was held and the last two charges were dropped. The first two charges involving the sale of alcohol to minors were upheld because of the testimony of Officer Chowdhury. Officer Chowdhury testified that when he arrived at the premises he noticed a lot of individuals drinking at the bar who he believed to be underage. He pulled aside eight bar patrons to further question them. According to Officer Chowdhury, two of these individuals showed him identification indicating they were under 21. He sniffed their beverages and determined by smell that they contained alcohol. The other six individuals did not have identification and the Officer told them to leave because he believed them to be underage. Officer Chowdhury then issued six summonses to the bartender.

The ALJ determined that while there was no evidence to substantiate charges 3 and 4, they felt Officer Chowdhury’s testimony was credible and imposed a $7,000 civil penalty on petitioner. Petitioner then commenced this Article 78 appeal alleging that the penalty was “arbitrary, capricious, unreasonable, unsupported by substantial evidence, and not based upon a reasonable basis”. Petitioner argued that respondent failed to establish that alcoholic beverages were in fact sold to any individuals under 21. The Court agrees with petitioner. The burden of proof rests upon the State Liquor Authority (SLA) to prove the age of an alleged minor at the time of the violation. Since Officer Chowdhury did not make copies of the minor’s identifications there is nothing in the record to corroborate the dates of birth scribbled on the summonses. Also, there is inadequate proof that the beverages possessed by the eight individuals contained alcohol. Officer Chowdhury did not taste or field test any of the drinks. Additionally, Officer Chowdhury did not see any underage individuals being served by any bartender on the premises.

Accordingly, the Supreme Court granted the petition and annulled the determination, without costs.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of McGillicuddy’s Tap House, Ltd. v New York State Liquor Authority

This Article 78 proceeding was brought about to review a determination of the New York State Liquor Authority finding petitioner McGillicuddy’s Tap House in violation of the Alcoholic Beverage Control Law. Petitioner was charged with permitting a licensed premises to become disorderly following an altercation that occurred in petitioner’s bar. Respondent suspended petitioner’s liquor license for 15 days and imposed a fine of $6,500 which resulted in this Article 78 appeal seeking to annul the determination.

The evidence supporting respondent’s claim that petitioner did not take proper action or allowed the altercation to continue was hearsay and seriously controverted by the testimony of petitioner’s head bouncer, Joseph Santiago. One witness, Marshall Ross, claimed that two altercations occurred and that the individuals involved in the first altercation returned to the bar after being thrown out and resumed the altercation. Ross did not testify at the administrative hearing and therefore was not available for cross-examination. The head bouncer, Santiago, was only aware of one altercation which he responded to promptly by ejecting one group involved and immediately calling the police. The police corroborated this story and vouched for Santiago’s reputation.

Since the only evidence provided by respondent was hearsay and this evidence was seriously controverted by the sworn testimony given on petitioner’s behalf which was subject to cross-examination, the hearsay evidence was not substantial to support respondent’s determination. Without Ross’ testimony, no evidence exists to prove that petitioner was aware of and ignored escalating arguments between patrons or allowed a fight to continue for a long period of time prior to calling the police. Additionally, still photographs taken from a videotape of the bar supports Santiago’s story that the altercation was isolated and brief and not foreseeable.

Accordingly, the Court annulled the determination, without costs, and granted the petition.

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In July 2006, a police officer noticed someone smoking marijuana in a tavern in Brooklyn, Albany Manor. Subsequently, an administrative law judge revoked the bar’s liquor license on the grounds that the bar owner “suffered or permitted” the tavern “to become disorderly”. The tavern then initiated this Article 78 appeal.

Albany Manor argued that the state agency did not have substantial evidence to prove that the isolated incident of reported marijuana usage amounted to a violation of §106(6) and that the penalty was arbitrary and capricious.

The Appellate Division noted that the bar had eight security guards on duty on the night in question patrolling the premises to ensure that no one was smoking. The bar also had openly displayed “no smoking” signs throughout the tavern and no ashtrays. There was no evidence that the petitioner had any knowledge of the act and nothing indicating that this was an ongoing condition.

Accordingly, the panel annulled the authority’s revocation of the bar’s liquor license.

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