Ashkar v. New York State Liquor Authority

265 A.D.2d 808, 695 N.Y.S.2d 838, 1999 N.Y. App. Div. LEXIS 9836

Opinion

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: The determination that petitioner violated State Liquor Authority rule 36.1 (q) (9 NYCRR 53.1 [q]) based on disorderly conduct in his premises and the area adjacent to his premises (charge 1) is not supported by substantial evidence. The record contains no evidence of disorderly conduct in petitioner’s premises. Although there is evidence of disorderly conduct in the area adjacent to the licensed premises, the evidence is insufficient to support the conclusion that petitioner’s manager sanctioned, encouraged or permitted that conduct {see, Matter of Playboy Club v State Liq. Auth., 23 NY2d 544, 550; cf., Matter of Bars R Us v New York State Liq. Auth., 192 AD2d 1050).

Substantial evidence supports the determination that petitioner violated Alcoholic Beverage Control Law § 65 (1) by selling beer to a minor (charge 5). Petitioner was not prevented from presenting a defense to charge 5 when the Administrative Law Judge precluded further inquiry into alleged marihuana use by the minor who purchased beer at petitioner’s store (see, Felle v Duffy, 159 AD2d 458).

We therefore modify the determination and grant the petition in part by annulling that part of the determination sustaining charge 1. Because respondent imposed a single penalty and the record does not establish any relationship between the charges and the penalty imposed, the penalty is vacated and the matter is remitted to respondent for imposition of an appropriate penalty on charge 5 (see, Matter of Li greci v Honors, 171 AD2d 1058, lv denied 78 NY2d 853). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Polito, J.) Present — Green, J. P., Lawton, Pigott, Jr., Scudder and Balio, JJ.