Matter of Platinum Pleasures of NY, Inc. v. New York State Liq. Auth.

126 A.D.3d 587, 8 N.Y.S.3d 265

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2015
• Docket: 13840 100371/13
• Status: Published

Opinions

Determination of respondent, dated February 15, 2013, cancelling petitioner’s on-premises liquor license and imposing a $1,000 bond forfeiture, upon a finding of violations of the Alcoholic Beverage Control Law and the Rules of the State Liquor Authority (9 NYCRR 53.1), modified, on the facts, to vacate the penalty of cancellation and remand the matter to respondent for the imposition of a lesser penalty, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Doris Ling-Cohan, J.], entered Mar. 13, 2013), otherwise disposed of by confirming the remainder of the determination, without costs.

Substantial evidence supports respondent’s findings that petitioner violated the Alcoholic Beverage Control Law and the Rules of the State Liquor Authority (9 NYCRR 53.1) (see Matter of Purdy v Kreisberg, 47 NY2d 354, 358 [1979]). With respect to rule 36.1 (d) (9 NYCRR 53.1 [d]), failing to operate a “bona fide premises,” petitioner argues that the language “in the judgment of the Authority” in the rule deprives the licensee of due process by presupposing guilt. However, necessarily implicit in the rule is that the agency will exercise its judgment rationally and in good faith (see Matter of Ray v Haveliwala, 107 AD2d 316, 319 [3d Dept 1985]). Moreover, the determination that petitioner’s premises were not “bona fide” was made after an administrative hearing at which petitioner was afforded due process.

Substantial evidence supports the findings that petitioner violated Alcoholic Beverage Control Law § 110 (4) and rule 36.1 (b) (9 NYCRR 53.1 [b]) by failing to disclose loans from a corporate affiliate used to fund renovations to the premises and that it violated rule 36.1 (b) by misrepresenting its ability to open and operate, notwithstanding petitioner’s showing that its failings were the result of negligence or ignorance of the law, rather than willfulness or an intent to deceive (see Matter of Taverna El Pulpo v New York State Liq. Auth., 103 AD2d 701, 703 [1st Dept 1984]). Petitioner’s argument that the misrepresentation in its original application is outside the applicable limitations period (see Alcoholic Beverage Control Law § 118 [2]) is unpreserved and in any event without merit.

With respect to the determination that petitioner violated Alcoholic Beverage Control Law § 99-d (1) by failing to obtain permission from respondent to effect a “substantial alteration” of the premises, the record shows that the renovations at issue cost over $100,000 and included opening up a dressing room and converting it into a seating area.

Petitioner’s argument that all the charges are barred by a prior determination of respondent based on petitioner’s plea of no contest to a charge of failure to timely renew its license is unpreserved, since petitioner failed to raise it before respondent (see Matter of Cipollaro v New York State Dept. of Motor Vehs., 101 AD3d 508 [1st Dept 2012]). Were we to consider the argument, we would reject it (see Matter of Sherwyn Toppin Mktg. Consultants, Inc. v New York State Liq. Auth., 103 AD3d 648, 651 [2d Dept 2013], lv denied 21 NY3d 858 [2013]).

In the absence of a finding of willfulness or an intent to deceive in connection with the foregoing violations, the violations do not warrant cancellation of petitioner’s license (see e.g. Matter of Farina v State Liq. Auth., 20 NY2d 484, 493 [1967]; Matter of La Trieste Rest. & Cabaret v New York State Liq. Auth., 228 AD2d 172 [1st Dept 1996]; Matter of Vicky’s Grocery v New York State Liq. Auth., 213 AD2d 206 [1st Dept 1995]). Accordingly, we remand the matter to respondent for the imposition of an appropriate lesser penalty.

Concur — Andrias, Saxe and Gische, JJ.