Theodore Polon, Inc. v. State Liquor Authority

59 A.D.2d 946, 399 N.Y.S.2d 469, 1977 N.Y. App. Div. LEXIS 14191

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1977
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Liquor Authority which, after a hearing, found that the petitioner had violated subdivision 2 of section 101-bb of the Alcoholic Beverage Control Law, suspended its retail liquor store license for a certain period, and forfeited its bond in the sum of $1,000. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. There is substantial evidence to support the determination. The assertion of mistake is no defense to a violation of subdivision 2 of section 101-bb of the Alcoholic Beverage Control Law where, as here, the petitioner failed to exercise reasonable supervision over an inexperienced employee. Furthermore, the testimony of the respondent’s investigator belies any assertion of mistake and such testimony was fully credited. The petitioner’s assertion of entrapment has been considered and is wholly lacking in merit. The final contention, that subdivision 2 of section 101-bb of the Alcoholic Beverage Control Law is invalid as a violation of the Sherman Antitrust Act, is also without merit. The statute falls well within the intended scope of the Twenty-first Amendment to the United States Constitution and constitutes State action which does not conflict with the Sherman Antitrust Act (see Seagram & Sons v Hostetter, 384 US 35; Hostetter v Idlewild Liq. Corp., 377 US 324; Parker v Brown, 317 US 341). Hopkins, J. P., Latham, Shapiro and Mollen, JJ., concur.