Lihs Beverages, Inc. v. New York State Liquor Authority

Appellate Division of the Supreme Court of New York

Lihs Beverages, Inc. v. New York State Liquor Authority

202 A.D.2d 1050, 609 N.Y.S.2d 465, 1994 N.Y. App. Div. LEXIS 3441

Appellate Division of the Supreme Court of the State of New York·Decided March 11, 1994·Published·Cited by 1 cases

Opinion

—Determination unanimously annulled on the law without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to challenge a determination of the New York State Liquor Authority (SLA) that it violated Alcoholic Beverage Control Law § 65 (2). The SLA reversed the finding of no violation made by the Administrative Law Judge, and found that petitioner violated Alcoholic Beverage Control Law § 65 (2) by selling alcoholic beverages to "an intoxicated person or to a person actually under the influence of liquor”. Alcoholic Beverage Control Law § 65 (2) was amended in 1986, several years prior to the incident in question, to prohibit sales to "[a]ny visibly intoxicated person”. The language relied upon by the SLA to determine petitioner’s guilt was eliminated by that amendment (see, Donato v McLaughlin, 195 AD2d 685; Blazynski v Gallagher, 187 AD2d 1018). Consequently, we annul the determination and remit the matter to the SLA to evaluate the proof adduced at the hearing using the correct legal standard. (Article 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Wisner, J.) Present — Balio, J. P., Lawton, Doerr, Davis and Boehm, JJ.

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—Determination unanimously annulled on the law without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to challenge a determination of the New York State Liquor Authority (SLA) that it violated Alcoholic Beverage Control Law § 65 (2). The SLA reversed the finding of no violation made by the Administrative Law Judge, and found that petitioner violated Alcoholic Beverage Control Law § 65 (2) by selling alcoholic beverages to "an intoxicated person or to a person actually under the influence of liquor”. Alcoholic Beverage Control Law § 65 (2) was amended in 1986, several years prior to the incident in question, to prohibit sales to "[a]ny visibly intoxicated person”. The language relied upon by the SLA to determine petitioner’s guilt was eliminated by that amendment (see, Donato v McLaughlin, 195 AD2d 685; Blazynski v Gallagher, 187 AD2d 1018). Consequently, we annul the determination and remit the matter to the SLA to evaluate the proof adduced at the hearing using the correct legal standard. (Article 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Wisner, J.) Present — Balio, J. P., Lawton, Doerr, Davis and Boehm, JJ.

Lihs Beverages, Inc. v. New York State Liquor Authority, 202 A.D.2d 1050, 609 N.Y.S.2d 465, 1994 N.Y. App. Div. LEXIS 3441 (N.Y. Ct. App. 1994).

Pincite

202 A.D.2d 1050 (Lihs Beverages, Inc. v. New York State Liquor Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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