530 West 28th St. LP v. New York State Liquor Authority

55 A.D.3d 436, 864 N.Y.S.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 2008
• Status: Published

Opinion

Fetition brought pursuant to CFLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Carol R. Edmead, J.], entered May 8, 2008), challenging the determination of respondent New York State Liquor Authority, dated March 3, 2008, which found petitioner in violation of Alcoholic Beverage Control Law § 106 (6), suspended its license and imposed a $13,000 civil penalty, unanimously granted, without costs, and said determination annulled.

The determination that petitioner permitted excessive noise to occur on its premises in violation of Alcoholic Beverage Control Law § 106 (6) is not supported by substantial evidence.. There were no complaints from residential tenants in the area; indeed, there was no evidence that anyone was affected by the noise. Three police officers testified to hearing music from the nightclub, each on a separate occasion. However, there was no objective evidence that the music exceeded acceptable volume levels. The one meter reading that was obtained was unaccompanied by evidence that the measurement was taken at the distance prescribed by Administrative Code of the City of New York § 24-218 (b) (1) (see Matter of Culture Club of NYC v New York State Liq. Auth., 294 AD2d 204 [2002]). Concur—Lippman, P.J., Saxe, Friedman, Sweeny and Acosta, JJ.