Theodore v. State Liquor Authority

Appellate Division of the Supreme Court of New York

Theodore v. State Liquor Authority

16 A.D.2d 1035, 230 N.Y.S.2d 250, 1962 N.Y. App. Div. LEXIS 8908

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

DecidedJune 27, 1962

StatusPublished

This text of 16 A.D.2d 1035 (Theodore 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

Theodore v. State Liquor Authority, 16 A.D.2d 1035, 230 N.Y.S.2d 250, 1962 N.Y. App. Div. LEXIS 8908 (N.Y. Ct. App. 1962).

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Opinion

Determination modified by dismissing charges 2 and 3 and by remanding the proceeding to the board to reassess and redetermine the penalty imposed, in accordance with the memorandum and, as so modified, determination unanimously confirmed, without costs. Memorandum: There is ample evidence to sustain charge 1. However, there is no evidence to sustain either charge 2 or 3. Both of these last two charges are founded upon the basic allegation that the licensee permitted an unescorted female to meet with an unescorted male in the licensed premises, both being unknown to the other up to that time. In other words, the fundamental charge was that the licensee permitted “ pickups ” and subsequent activities. It is clear from the record that at least one of the Authority’s investigators had met the two females in question before December 2, 1961, and, of course, if he introduced the other investigator to one or both of the females on that date, these two charges cannot stand. Therefore, they should be dismissed. We believe that, in view of all of the circumstances of this case, the penalty pronounced against the licensee was excessive (Civ. Prac. Act, § 1296, subd. 5-a). It may well be that the severity of the punishment was measured to some extent at least by the fact that three charges were sustained against the licensee, instead of one. That is a matter for the Authority to consider upon our remand. However, whether that is so or not, in our opinion the penalty was excessive and, upon reconsideration, the board should alleviate it. (Review of determination of State Liquor Authority revoking a restaurant liquor license, transferred to the Appellate Division by order of Erie Special Term.) Present—-Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.

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Determination modified by dismissing charges 2 and 3 and by remanding the proceeding to the board to reassess and redetermine the penalty imposed, in accordance with the memorandum and, as so modified, determination unanimously confirmed, without costs. Memorandum: There is ample evidence to sustain charge 1. However, there is no evidence to sustain either charge 2 or 3. Both of these last two charges are founded upon the basic allegation that the licensee permitted an unescorted female to meet with an unescorted male in the licensed premises, both being unknown to the other up to that time. In other words, the fundamental charge was that the licensee permitted “ pickups ” and subsequent activities. It is clear from the record that at least one of the Authority’s investigators had met the two females in question before December 2, 1961, and, of course, if he introduced the other investigator to one or both of the females on that date, these two charges cannot stand. Therefore, they should be dismissed. We believe that, in view of all of the circumstances of this case, the penalty pronounced against the licensee was excessive (Civ. Prac. Act, § 1296, subd. 5-a). It may well be that the severity of the punishment was measured to some extent at least by the fact that three charges were sustained against the licensee, instead of one. That is a matter for the Authority to consider upon our remand. However, whether that is so or not, in our opinion the penalty was excessive and, upon reconsideration, the board should alleviate it. (Review of determination of State Liquor Authority revoking a restaurant liquor license, transferred to the Appellate Division by order of Erie Special Term.) Present—-Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.

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Bluebook (online)

16 A.D.2d 1035, 230 N.Y.S.2d 250, 1962 N.Y. App. Div. LEXIS 8908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theodore-v-state-liquor-authority-nyappdiv-1962.