Oudemool v. New York State Liquor Authority

Appellate Division of the Supreme Court of New York

Oudemool v. New York State Liquor Authority

50 A.D.2d 1095, 377 N.Y.S.2d 335, 1975 N.Y. App. Div. LEXIS 12126

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

DecidedDecember 17, 1975

StatusPublished

Cited by3 cases

This text of 50 A.D.2d 1095 (Oudemool 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

Oudemool v. New York State Liquor Authority, 50 A.D.2d 1095, 377 N.Y.S.2d 335, 1975 N.Y. App. Div. LEXIS 12126 (N.Y. Ct. App. 1975).

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Opinion

— Determination unanimously modified by reducing penalty to a letter of warning and, as modified, determination confirmed, without costs. Memorandum: This is a proceeding pursuant to article 78 of the CPLR by which petitioner seeks review of a determination of the State Liquor Authority finding it in violation of subdivision 1 of section 65 of the Alcoholic Beverage Control Law and ordering a 20-day license suspension with 10 days deferred. There is substantial evidence on the record as a whole to support the agency’s determination that alcoholic beverages were consumed on the licensed premises by a minor (Matter of Club 95 v New York State Liq. Auth., 23 NY2d 784; Matter of Avon Bar & Grill v O’Connell, 301 NY 150). Petitioners’ contention that they were deprived of the opportunity to effectively cross-examine the agency’s primary witness is without merit. However, the record shows that petitioner’s premises have been licensed for 25 years and has never previously been cited for a violation. There is no evidence that this violation was intentional. The premises were crowded with college students and the licensee had instituted procedures to screen patrons at the door. Less than a full glass of beer was actually consumed by the minor. Furthermore, the evidence in support of the agency’s determination, while sufficient, rested largely upon the testimony of the minor herself. A licensee’s previous good record, its lack of illegal intent and the technical nature of the violation should be taken into consideration in imposing a penalty (Matter of Powderly v State Liq. Auth., 35 AD2d 769). Accordingly, we find the 20-day suspension imposed in this case to be excessive. It should be reduced to a letter of warning (Matter of Village Rathskeller v State Liq. Auth., 26 AD2d 543). (Review of determination suspending restaurant liquor license transferred by order of Onondaga Supreme Court.) Present — Moule, J. P., Cardamone, Simons, Goldman and Witmer, JJ.

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— Determination unanimously modified by reducing penalty to a letter of warning and, as modified, determination confirmed, without costs. Memorandum: This is a proceeding pursuant to article 78 of the CPLR by which petitioner seeks review of a determination of the State Liquor Authority finding it in violation of subdivision 1 of section 65 of the Alcoholic Beverage Control Law and ordering a 20-day license suspension with 10 days deferred. There is substantial evidence on the record as a whole to support the agency’s determination that alcoholic beverages were consumed on the licensed premises by a minor (Matter of Club 95 v New York State Liq. Auth., 23 NY2d 784; Matter of Avon Bar & Grill v O’Connell, 301 NY 150). Petitioners’ contention that they were deprived of the opportunity to effectively cross-examine the agency’s primary witness is without merit. However, the record shows that petitioner’s premises have been licensed for 25 years and has never previously been cited for a violation. There is no evidence that this violation was intentional. The premises were crowded with college students and the licensee had instituted procedures to screen patrons at the door. Less than a full glass of beer was actually consumed by the minor. Furthermore, the evidence in support of the agency’s determination, while sufficient, rested largely upon the testimony of the minor herself. A licensee’s previous good record, its lack of illegal intent and the technical nature of the violation should be taken into consideration in imposing a penalty (Matter of Powderly v State Liq. Auth., 35 AD2d 769). Accordingly, we find the 20-day suspension imposed in this case to be excessive. It should be reduced to a letter of warning (Matter of Village Rathskeller v State Liq. Auth., 26 AD2d 543). (Review of determination suspending restaurant liquor license transferred by order of Onondaga Supreme Court.) Present — Moule, J. P., Cardamone, Simons, Goldman and Witmer, JJ.

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Bluebook (online)

50 A.D.2d 1095, 377 N.Y.S.2d 335, 1975 N.Y. App. Div. LEXIS 12126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oudemool-v-new-york-state-liquor-authority-nyappdiv-1975.

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