Ward v. O'Connell

280 A.D. 1021, 116 N.Y.S.2d 785, 1952 N.Y. App. Div. LEXIS 4586

Opinion

— This is a proceeding under article 78 of the Civil Practice Act to review a determination of the State Liquor Authority which suspended petitioner’s retail liquor store license for thirty days and directed the forfeiture of his bond in the amount of $500 upon a finding by the Authority that the petitioner sold alcoholic beverages to minors, in violation of subdivision 1 of section 65 of the Alcoholic Beverage Control Law. Petitioner’s only contentions in this court are that there is no substantial evidence to sustain the charge, and that the punishment imposed is excessive. Two minors, concededly under the age of eighteen years, testified to a purchase from petitioner of an alcoholic beverage on the evening of January 26,1950, at separate times. As to one, petitioner denied the same. The testimony of the minor in this transaction is corroborated by the testimony of another boy who was waiting outside petitioner’s store. There was thus presented but a question of credibility and a question of fact for the exclusive determination of the Authority. As to the second transaction, petitioner admits the sale, but contends that he relied upon a hunting license displayed to him by the minor upon which the age of the minor had been altered to state that he was eighteen. Irrespective of intention, however, the law places squarely upon the licensee the risk of sales to minors. (Matter of Barnett v. O’Connell. 279 App. Div. 449.) There is no statutory authority for a judicial review of the measure of punishment imposed by the Authority, and there is judicial authority that we may not review the measure of punishment. (Matter of Sagos v. O’Connell, 301 N. Y. 212.) Determination confirmed, without costs. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.