Oudemool v. New York State Liquor Authority

— Determination unanimously modified by reducing penalty to a letter of warning and, as modified, determination confirmed, without costs. Memorandum: This is a proceeding pursuant to article 78 of the CPLR by which petitioner seeks review of a determination of the State Liquor Authority finding it in violation of subdivision 1 of section 65 of the Alcoholic Beverage Control Law and ordering a 20-day license suspension with 10 days deferred. There is substantial evidence on the record as a whole to support the agency’s determination that alcoholic beverages were consumed on the licensed premises by a minor (Matter of Club 95 v New York State Liq. Auth., 23 NY2d 784; Matter of Avon Bar & Grill v O’Connell, 301 NY 150). Petitioners’ contention that they were deprived of the opportunity to effectively cross-examine the agency’s primary witness is without merit. However, the record shows that petitioner’s premises have been licensed for 25 years and has never previously been cited for a violation. There is no evidence that this violation was intentional. The premises were crowded with college students and the licensee had instituted procedures to screen patrons at the door. Less than a full glass of beer was actually consumed by the minor. Furthermore, the evidence in support of the agency’s determination, while sufficient, rested largely upon the testimony of the minor herself. A licensee’s previous good record, its lack of illegal intent and the technical nature of the violation should be taken into consideration in imposing a penalty (Matter of Powderly v State Liq. Auth., 35 AD2d 769). Accordingly, we find the 20-day suspension imposed in this case to be excessive. It should be reduced to a letter of warning (Matter of Village Rathskeller v State Liq. Auth., 26 AD2d 543). (Review of determination suspending restaurant liquor license transferred by order of Onondaga Supreme Court.) Present — Moule, J. P., Cardamone, Simons, Goldman and Witmer, JJ.