Smiler's Delicatessen No. 6 Corp. v. State Liquor Authority

Appellate Division of the Supreme Court of New York

Smiler's Delicatessen No. 6 Corp. v. State Liquor Authority

37 A.D.2d 957, 326 N.Y.S.2d 543, 1971 N.Y. App. Div. LEXIS 7671

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

DecidedNovember 30, 1971

StatusPublished

This text of 37 A.D.2d 957 (Smiler's Delicatessen No. 6 Corp. v. 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

Smiler's Delicatessen No. 6 Corp. v. State Liquor Authority, 37 A.D.2d 957, 326 N.Y.S.2d 543, 1971 N.Y. App. Div. LEXIS 7671 (N.Y. Ct. App. 1971).

Pincite

Opinion

Determination of the State Liquor Authority, dated March 25, 1971, suspending petitioner’s off-premises beer license for 20 days forthwith and 10 days deferred, unanimously modified, on the law and the facts and in the exercise of discretion, to annul the forthwith 20-day suspension, and to limit the punishment to 10 days’ suspension to be temporarily deferred, and otherwise confirmed, without costs and without disbursements. While we confirm the Authority’s finding of sale of two cans of beer to a minor, we modify that finding to hold that the transaction consisted of but a single sale, and not of two. Accepting, as we do otherwise, the essential facts as found by the Authority, we take into account that the violation was an isolated aberrant instance, against an otherwise spotless record, and that the testimony concerning the purchase leaves much to be desired. Indeed, the grocery clerk who made the sale was never really identified. In these circumstances, we deem the reduced penalty to be adequate as a safeguard against future offenses. (See Matter of Village Rathskeller v. State Liq. Auth., 26 A D 2d 543.) Concur — Capozzoli, J. P., McGivern, Markewieh, Murphy and Eager, JJ.

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Determination of the State Liquor Authority, dated March 25, 1971, suspending petitioner’s off-premises beer license for 20 days forthwith and 10 days deferred, unanimously modified, on the law and the facts and in the exercise of discretion, to annul the forthwith 20-day suspension, and to limit the punishment to 10 days’ suspension to be temporarily deferred, and otherwise confirmed, without costs and without disbursements. While we confirm the Authority’s finding of sale of two cans of beer to a minor, we modify that finding to hold that the transaction consisted of but a single sale, and not of two. Accepting, as we do otherwise, the essential facts as found by the Authority, we take into account that the violation was an isolated aberrant instance, against an otherwise spotless record, and that the testimony concerning the purchase leaves much to be desired. Indeed, the grocery clerk who made the sale was never really identified. In these circumstances, we deem the reduced penalty to be adequate as a safeguard against future offenses. (See Matter of Village Rathskeller v. State Liq. Auth., 26 A D 2d 543.) Concur — Capozzoli, J. P., McGivern, Markewieh, Murphy and Eager, JJ.

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Bluebook (online)

37 A.D.2d 957, 326 N.Y.S.2d 543, 1971 N.Y. App. Div. LEXIS 7671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smilers-delicatessen-no-6-corp-v-state-liquor-authority-nyappdiv-1971.