Beverly Lanes, Inc. v. Rohan

Goldman, J. This is an article 78 proceeding to review the determination of the State Liquor Authority which suspended petitioner-appellant’s license for a period of 10 days, predicated upon a finding that in violation of subdivision 1 of section 65 of the Alcoholic Beverage Control Law appellant sold, delivered, or gave away or permitted to be sold, delivered or given away alcoholic beverages to a minor under the age of 18 years on three different occasions during the latter part of September, 1957. [157] The appellant operates a bowling establishment in Niagara Falls, New York. The primary purpose of appellant’s business is the renting of some 32 bowling alleys to persons engaging in the game of bowling. Incidental to that main purpose, appellant offers for sale alcoholic beverages from a bar which is located at least 70 feet from the area where the infant and others were bowling. The testimony discloses that the minor, a female 16 years, 10 months of age, was in the company of her escort, an adult male and two other persons. The adult purchased bottled beer at the bar, allegedly on three different dates and delivered one or two bottles on each of the occasions to the minor. The hearing officer found this as a fact and also found that the bar at which the beer was purchased was “ seventy odd feet distant from the bowling alleys but not visible to the person in charge of the bar It is conceded that no employee of appellant at any time actually delivered the beer to the minor and that no employee of the appellant observed the minor receiving or consuming the beer. Under these circumstances we can find no substantial evidence to support the administrative determination. (Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327, 331-332; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Stork Restaurant v. Boland, 282 N. Y. 256.) The rule of absolute responsibility, i.e., that, despite any circumstances a licensee violates section 65 of the Alcoholic Beverage Control Law if a minor in some form or manner obtains alcoholic beverage on licensed premises is not supported by the decisions dealing with this question. (Matter of Sheibar v. New York State Liq. Auth., 4 A D 2d 442, affd. 4 N Y 2d 984; Matter of Erin Wine & Liq. Store v. O’Connell, 283 App. Div. 443, affd. 307 N. Y. 768.) We recognize that the absence of intention to violate the law does not relieve the licensee of the responsibility and burden of ascertaining the age of a youthful patron. (Matter of Ward v. O’Connell, 280 App. Div. 1021.) However, this is not to say that under some circumstances a youthful patron may be present on the premises, unknown to the licensee or his agent, and may consume an alcoholic beverage without violation of section 65 by the licensee. Lack of knowledge of age is no defense but lack of knowledge of presence is a different matter arid is one of many elements which should be considered. If the rule of absolute responsibility prevails then all that need be shown is the presence of the minor anywhere on the premises, the reception of alcohol by the minor and nothing else. In our view the language of the statute must be construed according to its ordinary and usual meaning, and has so been interpreted [158] by the decisions as to absolve the appellant in the fact situation here presented. The statute must be construed according to a common-sense rule or rule of reason. Our position is clearly stated in People v. Griesebacker (6 A D 2d 679) where the court said: “We believe there is a rule of reason to be applied. The language of the statute is designed to embrace conduct where parties participate directly or indirectly in actual immediate service to a minor under 18 years of age, or knowledgeably and voluntarily, singly or in combination, or under circumstances that should impart knowledge, act so as to permit the delivery of an alcoholic beverage to such minor.” We know that the Griesebacker case was a criminal prosecution, in which the degree of proof required differs greatly from an administrative proceeding, but we believe the rule there laid down should govern any proceeding involving section 65. Even in Matter of Maniccia v. State Liq. Auth. (5 A D 2d 929) relied on heavily by the respondents, the conclusion of the court that the licensee knew or should have known of the delivery of the beer to the minors was reached by the application of the test of reasonable diligence. Evidence of good faith in the instant case was demonstrated by testimony that two police officers were employed by the licensee in their off-duty hours to check the bar and to prevent sales to minors. We believe that Matter of Sheibar v. New York State Liq. Auth. (4 A D 2d 442, affd. 4 N Y 2d 984, supra) which was unanimously affirmed by the Court of Appeals is completely controlling. In the Sheibar case, three sailors entered a small one-room bar where all patrons were in full view of the bartender. One sailor, of legal age, purchased three bottles of beer from the bar, took them to his table and the beer was consumed by all three including one underage person. The Appellate Division of the First Department (p. 443) unanimously annulled the determination of the Authority on the ground that there was “ absent any proof — other perhaps than a mere scintilla or a thin speculation—of the delivery, or the permitting of the delivery, of an alcoholic beverage to the minor. Hence, a conclusion that section 65 of the Alcoholic Beverage Control Law had been violated was not a reasonable inference from the facts.” Certainly, the Authority’s proof in the case at bar, dealing with large premises with the alleys out of sight of the bartender and crowds of bowling patrons, is substantially weaker than that in Matter of Sheibar (supra) and, a fortiori, requires annulment of the Authority’s determination. We are as concerned as the Authority with the sale of alcoholic beverages to minors. In our view it would not be unreasonable [159] for the Authority to promulgate regulations prohibiting sale of alcoholic beverages in establishments like bowling alleys and similar enterprises, where the sale is only incidental to the main purpose of the business, unless the beverage is delivered to the consuming parties by waiters charged with the responsibility of determining the ages of all persons in the party. Any reasonable requirement of supervision which would prevent the imbibing of alcoholic beverages by minors would be highly desirable. If such action were taken by the Authority, the burden specifically placed upon the business might well discourage bowling alleys and similar places of amusement from dispensing alcoholic beverages. Until such action is taken by the Authority, to define clearly and positively the responsibility of the licensee, the present state of the law imposes no such obligation. The determination of the Authority should be annulled, the suspension rescinded and the petition granted.