Lihs Beverages, Inc. v. New York State Liquor Authority

—Determination unanimously annulled on the law without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to challenge a determination of the New York State Liquor Authority (SLA) that it violated Alcoholic Beverage Control Law § 65 (2). The SLA reversed the finding of no violation made by the Administrative Law Judge, and found that petitioner violated Alcoholic Beverage Control Law § 65 (2) by selling alcoholic beverages to "an intoxicated person or to a person actually under the influence of liquor”. Alcoholic Beverage Control Law § 65 (2) was amended in 1986, several years prior to the incident in question, to prohibit sales to "[a]ny visibly intoxicated person”. The language relied upon by the SLA to determine petitioner’s guilt was eliminated by that amendment (see, Donato v McLaughlin, 195 AD2d 685; Blazynski v Gallagher, 187 AD2d 1018). Consequently, we annul the determination and remit the matter to the SLA to evaluate the proof adduced at the hearing using the correct legal standard. (Article 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Wisner, J.) Present — Balio, J. P., Lawton, Doerr, Davis and Boehm, JJ.