Matter of AJK Café, Inc. v New York State Liq. Auth.

Matter of AJK Caf|fe, Inc. v New York State Liq. Auth. 2009 NY Slip Op 06648 [65 AD3d 952] September 24, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 4, 2009

In the Matter of AJK CafÉ, Inc., Petitioner,
v
New York State Liquor Authority et al., Respondents.

—[*1] John W. Russell, New York, for petitioner.

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

Determination of respondent New York State Liquor Authority, dated November 26, 2008, finding petitioner in violation of 9 NYCRR 48.3 by employing an unlicensed security guard and imposing a $2,500 civil penalty, and an alternative penalty of a 15-day suspension of petitioner's liquor license plus a $1,000 bond forfeiture, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Joan B. Lobis, J.], entered March 4, 2009) dismissed, without costs.

Substantial evidence, including the testimony of a detective who performed a business inspection of petitioner's bar, established that petitioner was in violation of 9 NYCRR 48.3 by employing an unlicensed security guard. Petitioner offered no testimony or other admissible proof to support its position that the subject employee worked as a busboy and that the investigating detectives mistook him for a security guard. There is, therefore, no basis to disturb the credibility findings of the administrative law judge (see Matter of CafÉ La China Corp. v New York State Liq. Auth., 43 AD3d 280, 281 [2007]).

The penalty imposed does not shock our sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233 [1974]). Concur—Tom, J.P., Sweeny, McGuire, DeGrasse and Freedman, JJ.