S & R Lake Lounge, Inc. v. New York State Liquor Authority

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Liquor Authority, dated January 6, 1993, which, after a hearing, found the petitioner guilty of the sale of alcoholic beverages to a person under the age of 21 years and suspended the petitioner’s liquor license for 15 days and imposed a $1,000 penalty. Adjudged that the petition is granted, the determination is annulled, on the law, with costs, and the charge is dismissed. The respondent alleged that on November 4, 1990, the petitioner violated Alcoholic Beverage Control Law § 65 by selling, delivering, or giving away alcoholic beverages to a person under the age of 21 years (see, Alcoholic Beverage Control Law § 65 [1]). The person to whom the petitioner allegedly sold alcohol was killed in a car accident shortly after driving his car from the petitioner’s establishment. After a hearing, the Administrative Law Judge made a summary and statement of his findings, in which he held that the charge had not been sustained by the evidence. On November 24, 1992, this finding was reversed by a respondent, which held that the evidence adduced at the hearing sustained the charge. Subsequently, on January 6, 1993, the respondent issued the order under review which suspended the petitioner’s liquor license for 15 days and imposed a $1,000 penalty. In order to find that the licensee "caused or permitted” the service or delivery of alcoholic beverages to a minor, the conduct must be " 'open, observable and of such nature that its continuance could, by the exercise of reasonable diligence, have been prevented’ ” (Matter of Austin Lemontree v New York State Liq. Auth., 147 AD2d 476, 477, affd 74 NY2d 869, 870; Matter of Panacea Tavern v New York State Liq. Auth., 144 AD2d 562, 563; Matter of Park II Villa Corp. v New York State Liq. Auth., 141 AD2d 646, 647; 4373 Tavern Corp. v New York State Liq. Auth., 50 AD2d 855, 856). At the hearing, two friends of the deceased, also under the age of 21 years at the time of the incident, testified that prior to going to the petitioner’s establishment, they were all drinking and that they went to another establishment where, without having his identification checked, the deceased was served three beers. The threesome then drove to the licensee’s establishment and only the deceased, who already appeared intoxicated, was admitted. The two friends, who remained [421] outside, later tried to see the deceased whenever the front door opened and, at some point, they saw the deceased drinking from what appeared to be a bottle of beer. The two friends could not see the bar from outside the front door and they did not see how the deceased obtained the beer. When the deceased returned to the car, he was "pretty drunk” and was holding a bottle of beer which he threw out the window before the car accident. There was no evidence adduced at the hearing to establish that the petitioner knew or should have known the manner in which the deceased obtained the beer (see, Matter of Austin Lemontree v New York State Liq. Auth., 147 AD2d, at 477, supra; Matter of Panacea Tavern v New York State Liq. Auth., 144 AD2d, at 563, supra; Matter of Park II Villa Corp. v New York State Liq. Auth., 141 AD2d, at 647, supra; 4373 Tavern Corp. v New York State Liq. Auth., 50 AD2d, at 856, supra). Accordingly, the determination is not supported by substantial evidence, and must be annulled. Mangano, P. J., Bracken and Santucci, JJ., concur.