Bryan & Rose, Inc. v. New York State Liquor Authority

84 A.D.2d 579, 443 N.Y.S.2d 428, 1981 N.Y. App. Div. LEXIS 15674

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1981
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review respondent’s determination, dated January 22,1981 and made after a hearing, that petitioner had suffered or permitted its licensed premises to become disorderly on January 1, 1980, and suspended petitioner’s license for 15 days, 7 days to be served forthwith and 8 days deferred. Petition granted, determination annulled, on the law, without costs or disbursements, and charge dismissed. On or about May 23, 1980 respondent charged petitioner with a violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law, to wit, that petitioner had “suffered or permitted the licensed premises to become disorderly *** [by] suffering] or permitting] an altercation to occur on January 1, 1980.” The charge was sustained following a hearing. We agree with petitioner that the determination is not supported by substantial evidence. The hearing officer found that on January 1,1980, at approximately 3:00 a.m., a patron was struck by the licensee’s employees, one of whom was the bartender, and that the patron struck no one. No other employee was identified. As this court stated in Matter of L.B.R. Enterprises v New York State Liq. Auth. (67 AD2d 922, 923, mot for lv to app den 47 NY2d 708), “[although] it is true that, ‘where the licensee’s agent is instrumental in creating the disorder, it is generally not necessary to establish a foreseeable pattern of conduct’ (Matter of Club 95 v New York State Liq. Auth., 23 NY2d 784, 785 [emphasis supplied] *** ‘there [is] [nonetheless] no basis in law for holding the [licensee] responsible for * * * a single isolated act by its employee, an act which manifestly occurred on the spur of the moment *** (Matter of Playboy Club of N. Y. v State Liq. Auth., 23 NY2d 544, 550 [emphasis supplied]’.” There is no finding in the present case that the bartender and the other employee who was found to have struck the patron were anything but ordinary employees; hence, neither was an agent of the licensee, i.e., an employee left in charge of the premises. Nor is there any showing of a similar occurrence by these or any other employees or that the manager was even aware of the employees’ conduct “until it was too late” (see Matter of Playboy Club of N. Y. v State Liq. Auth., 23 NY2d 544, 550). Thus, there was no evidence to support a conclusion that petitioner “suffered or permitted” the licensed premises to become disorderly. Gulotta, J.P., Margett, Weinstein and Thompson, JJ., concur.