Austin Lemontree, Inc. v. New York State Liquor Authority

147 A.D.2d 476, 537 N.Y.S.2d 575, 1989 N.Y. App. Div. LEXIS 1501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1989
• Status: Published

Opinions

— Proceeding pursuant to CPLR article 78 to review a determination of the New York State Liquor Authority, dated February 16, 1988, which, after a hearing, found the petitioner guilty of the sale of alcoholic beverages to a minor and suspended the petitioner’s liquor license for 10 days.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The determination of the New York State Liquor Authority that the petitioner violated Alcoholic Beverage Control Law § 65 by selling, delivering or giving away or causing or permitting or procuring to be sold, delivered or given away alcoholic beverages to a person under the age of 21 years is supported by substantial evidence. The minor’s presence three feet from the bar where 4 or 5 bartenders were working when the drink was purchased for, and given to, the minor was sufficient to support the conclusion that the petitioner’s illegal conduct was "open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented” (Matter of 4373 Tavern Corp. v New York State Liq. Auth., 50 AD2d 855, 856; Matter of Cat & Fiddle v New York State Liq. Auth., 24 AD2d 753; Matter of Park II Villa Corp. v New York State Liq. Auth., 141 AD2d 646; cf., Matter of Panacea Tavern v New York State Liq. Auth., 144 AD2d 562).

The penalty imposed, a 10-day suspension of the petitioner’s liquor license, is not so disproportionate to the offense as to be shocking to our sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Brown, J. P., Rubin and Spatt, JJ., concur.