Best v. New York State Liquor Authority

Proceeding pursuant to CPLR article 78 to review a determination of the State Liquor Authority, dated September 28, 1981 and made after a hearing, which canceled petitioners’ off-premises beer license and imposed a bond forfeiture of $1,000. Petition granted, determination annulled, on the law, without costs or disbursements, and respondent is directed to reinstate petitioners’ license and bond. Respondent’s determination that petitioners were not operating a “grocery store” as defined by subdivision 13 of section 3 of the Alcoholic Beverage Control Law is not supported by substantial evidence. The record establishes that food sales were a substantial portion of petitioners’ sales, and the selection may have been limited on the day of the inspection. On the record before this court, a follow-up visit was necessary to establish that petitioners’ stock on the date of the inspection was typical (see Matter of 54 Cafe & Rest, v O’Connell, 274 App Div 428, affd 298 NY 883; see, also, Matter of Norton v O’Connell, 282 App Div 744, app dsmd 306 NY 843; Matter of Radigan v O’Connell, 280 App Div 92, 98, mod on other grounds 304 NY 396). Damiani, J. P., Brown and Niehoff, JJ., concur.