Matter of JA Rocks Inc. v New York State Liq. Auth.

Matter of JA Rocks Inc. v New York State Liq. Auth. 2007 NY Slip Op 06574 [43 AD3d 663] September 6, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

In the Matter of JA Rocks Inc., Petitioner,
v
New York State Liquor Authority, Respondent.

—[*1] Mehler & Buscemi, New York (Martin P. Mehler of counsel), for petitioner.

Thomas J. Donohue, New York (Scott A. Weiner of counsel), for respondent.

In a proceeding to challenge respondent's September 20, 2006 revocation of petitioner's on-premises liquor license and imposition of a $1,000 bond forfeiture, transferred to this Court pursuant to CPLR 7804 (g) by order of Supreme Court, New York County (Jane S. Solomon, J.), entered on or about November 20, 2006, the petition unanimously granted to the extent of annulling the administrative determination, without costs.

Respondent's determination correctly dismissed charges 1 and 4, but erroneously sustained charges 2 and 3, which also were not supported by substantial evidence. Charge 2 alleged a failure "to exercise adequate supervision over the conduct of the licensed business" in violation of 9 NYCRR 48.2, which is expressly limited to "violations that occur in the licensed premises." Despite its explicit finding that the violent conduct cited in the charge occurred outside the premises, the determination sustained the charge without addressing the obvious inconsistency with the language of the regulation. Similarly, charge 3, which alleged the use of unlicensed security personnel on the date at issue in charges 1 and 2, in violation of the general provisions of 9 NYCRR 53.1 (n), was not sustained by substantial evidence, since respondent failed to offer competent supporting documentary proof. The police report that allegedly establishes the personnel's unlicensed status is illegible, as provided in the record before us, and respondent does not contest petitioner's contention that the report makes no mention whether the security personnel were unlicensed. Thus, the only record evidence on the issue of licensing is the testimony of petitioner's principal, which states that the security coordinator she used represented to her that both he and the men he used were duly licensed. [*2]

In view of the foregoing, it is unnecessary to consider petitioner's remaining contentions. Concur—Marlow, J.P., Williams, Gonzalez, Catterson and McGuire, JJ.