Bubba Restaurant, Inc. v. New York State Liquor Authority

Appellate Division of the Supreme Court of New York

Bubba Restaurant, Inc. v. New York State Liquor Authority

160 A.D.2d 539, 554 N.Y.S.2d 189, 1990 N.Y. App. Div. LEXIS 4559

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 1990

StatusPublished

Cited by2 cases

This text of 160 A.D.2d 539 (Bubba Restaurant, Inc. v. New York State Liquor Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bubba Restaurant, Inc. v. New York State Liquor Authority, 160 A.D.2d 539, 554 N.Y.S.2d 189, 1990 N.Y. App. Div. LEXIS 4559 (N.Y. Ct. App. 1990).

Pincite

Opinion

—In this proceeding pursuant to CPLR article 78, transferred by order of the Supreme Court, New York County (Burton Sherman, J.), entered March 30, 1989, the determination of respondent, New York State Liquor Authority, dated January 4, 1989, which imposed a penalty of suspension of petitioner’s liquor license for a period of 30 days, plus a $1,000 bond forfeiture, is unanimously annulled, solely to the extent of vacating the penalty and remanding for reconsideration thereof, and otherwise confirmed, without costs or disbursements.

Upon examination of this record, we conclude that respondent’s determination, made after a hearing, that petitioner permitted gambling on the licensed premises in violation of Alcoholic Beverage Control Law § 106 (6) and maintained on said premises a video display game machine prohibited under rule 36.1 (t) of the Rules of the State Liquor Authority (9 NYCRR 53.1 [t]), was supported by substantial evidence.

The uncontroverted evidence established that on June 25, 1988, a "Broadway” video game machine was operated in the licensed premises, with the full knowledge and permission of [540]*540petitioner. This game rewards a winning player with additional games free of charge and, therefore, provides "something of value” within the meaning of Penal Law § 225.00 (6) and is a "gambling device” pursuant to Penal Law § 225.00 (7). (See, Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791.)

In the circumstances before us, however, we find that the 30-day suspension of petitioner’s liquor license and the forfeiture of the $1,000 bond is unduly harsh. (See, Matter of Cos Dei San, Inc. v New York State Liq. Auth., 147 AD2d 370.) Accordingly, the penalty is vacated and the matter remanded to respondent solely for reconsideration of appropriate sanction. Concur—Kupferman, J. P., Milonas, Asch, Kassal and Smith, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—In this proceeding pursuant to CPLR article 78, transferred by order of the Supreme Court, New York County (Burton Sherman, J.), entered March 30, 1989, the determination of respondent, New York State Liquor Authority, dated January 4, 1989, which imposed a penalty of suspension of petitioner’s liquor license for a period of 30 days, plus a $1,000 bond forfeiture, is unanimously annulled, solely to the extent of vacating the penalty and remanding for reconsideration thereof, and otherwise confirmed, without costs or disbursements.

Upon examination of this record, we conclude that respondent’s determination, made after a hearing, that petitioner permitted gambling on the licensed premises in violation of Alcoholic Beverage Control Law § 106 (6) and maintained on said premises a video display game machine prohibited under rule 36.1 (t) of the Rules of the State Liquor Authority (9 NYCRR 53.1 [t]), was supported by substantial evidence.

The uncontroverted evidence established that on June 25, 1988, a "Broadway” video game machine was operated in the licensed premises, with the full knowledge and permission of [540]*540petitioner. This game rewards a winning player with additional games free of charge and, therefore, provides "something of value” within the meaning of Penal Law § 225.00 (6) and is a "gambling device” pursuant to Penal Law § 225.00 (7). (See, Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791.)

In the circumstances before us, however, we find that the 30-day suspension of petitioner’s liquor license and the forfeiture of the $1,000 bond is unduly harsh. (See, Matter of Cos Dei San, Inc. v New York State Liq. Auth., 147 AD2d 370.) Accordingly, the penalty is vacated and the matter remanded to respondent solely for reconsideration of appropriate sanction. Concur—Kupferman, J. P., Milonas, Asch, Kassal and Smith, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

160 A.D.2d 539, 554 N.Y.S.2d 189, 1990 N.Y. App. Div. LEXIS 4559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bubba-restaurant-inc-v-new-york-state-liquor-authority-nyappdiv-1990.

Opinion

Related

Cite This Page — Counsel Stack