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.

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