State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 18, 2015 520035 

________________________________

In the Matter of MJS SPORTS

BAR & GRILL, INC.,

Petitioner,

v

MEMORANDUM AND JUDGMENT

NEW YORK STATE LIQUOR AUTHORITY 

DIVISION OF ALCOHOLIC 

BEVERAGE CONTROL 

et al.,

Respondents.

________________________________

Calendar Date: April 22, 2015

Before: Lahtinen, J.P., Garry, Lynch and Clark, JJ.

__________

James Kleinbaum, Chatham, for petitioner.

Mark D. Frering, New York State Liquor Authority, Albany,

for respondents.

__________

Garry, J.

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Albany County) to

review a determination of respondent State Liquor Authority which

imposed a civil penalty upon petitioner.

Petitioner holds a license authorizing the sale of liquor,

wine and beer on its premises in the Town of Chatham, Columbia

County. Based upon a series of incidents between January 2010

and October 2011, the Division of Alcoholic Beverage Control

instituted a proceeding to cancel or revoke petitioner's license

for violations of Alcoholic Beverage Control Law § 118 (1) and
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(3) and rule 36.1 (q) of the Rules of the State Liquor Authority

(see 9 NYCRR 53.1 [q]). Following a hearing, an Administrative

Law Judge found that substantial evidence existed to sustain both

charges. Respondent State Liquor Authority adopted this

determination and imposed a civil penalty of $5,500. Petitioner

commenced this CPLR article 78 proceeding, which was transferred

to this Court (see CPLR 7804 [g]).

A liquor license may be revoked or cancelled or a civil

penalty may be imposed where "the existence of a sustained and

continuing pattern of noise, disturbance, misconduct or disorder

on or about the licensed premises . . . adversely affects the

health, welfare or safety of the inhabitants of the area in which

such licensed premises are located" (Alcoholic Beverage Control

Law § 118 [3]; see Alcoholic Beverage Control Law § 118 [1]). 

Rule 36.1 (q) provides, in pertinent part, that cause to revoke,

suspend or cancel a liquor license exists "[w]hen any noise,

disturbance, misconduct, disorder, act or activity occur[ing] [on

or about the licensed premises] . . . results in the licensed

premises becoming a focal point for police attention" (9 NYCRR

53.1 [q]). Here, the Division submitted incident reports and

police testimony describing 18 occasions when officers responded

to complaints of noise, disorderly conduct and other issues at

petitioner's establishment. As petitioner argues, many of the

noise complaints came from a single individual who resided across

the street from petitioner's establishment, next door to a

restaurant operated by that individual's family. Although

petitioner asserts that this individual was motivated to complain

by the restaurant's competing interest, the record neither

reveals whether the businesses were, in fact, competitors, nor

that the complaints were fabricated. Instead, in most instances,

the responding officers determined that the individual's

complaints were justified and asked petitioner to lower the

volume; on one occasion, the officers were able to hear the noise

inside the complainant's apartment. 

The record supports petitioner's contentions that some of

the calls involving disorderly conduct were initiated by

petitioner's representatives seeking police assistance in

maintaining order, that petitioner's representatives consistently

cooperated with the police, and that petitioner was not shown to
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have tolerated or allowed any disorderly conduct. However, no

showing that petitioner knowingly permitted misconduct to occur

was required to establish the charged violations. No such

requirement appears in the language of either provision (see

Alcoholic Beverage Control Law § 118 [3]; 9 NYCRR 53.1 [q];

compare Alcoholic Beverage Control Law § 106 [6]; Matter of

Playboy Club of N.Y. v State Liq. Auth. of State of N.Y., 23 NY2d

544, 550 [1969]). Critically, and contrary to petitioner's

argument, application of the governing rules no longer requires a

showing that the licensee "suffer[ed] or permit[ted]" disorderly

conduct (Matter of Beer Garden v New York State Liq. Auth., 79

NY2d 266, 276 [1992] [internal quotation marks and citations

omitted]). Instead, in a direct response to the Beer Garden

holding, the Legislature added Alcoholic Beverage Control Law

§ 118 (3) to the statute in 1996, with the specific purpose of

providing statutory authority to sanction licensees for

violations of rule 36.1 (q) without a finding that they knowingly

suffered or permitted misconduct (see Mem in Support of

Legislation, Bill Jacket, L 1996, ch 536 at 8-9).

Next, petitioner contends that the Authority did not show

that its establishment had a negative effect on the health,

welfare or safety of local inhabitants or that it "bec[ame] a

focal point of police attention" (9 NYCRR 53.1 [q]; see Alcoholic

Beverage Control Law § 118 [3]). Notably, all of the testifying

police officers – including the police chief – stated that

petitioner's establishment did not warrant more police attention

than other local enterprises and had no adverse affect on health,

welfare or safety. Nonetheless, rule 36.1 (q) provides that the

determination whether disorder at a licensed establishment has

negatively affected the community or made the establishment a

focal point for police attention is a question to be resolved "in

the judgment of the [A]uthority" (9 NYCRR 53.1 [q]), and we find

no reason to read a different requirement into Alcoholic Beverage

Control Law § 118 (3). The testifying officers were not present

for all of the incidents that led to the charges against

petitioner. The incident reports themselves reveal that, during

the pertinent time period of almost two years, the incidents at

petitioner's establishment resulted in a sustained and continuous

need for police intervention, and prompted citizen complaints

that ultimately resulted in a police referral to the Authority. 
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Although unsupported by the police testimony, we decline to find

that the remaining record evidence did not amount to substantial

evidence sufficient to support the Authority's conclusion that

petitioner's establishment became a focal point of police

attention, and that the health, welfare and safety of the

community were adversely affected (see Matter of Sherwyn Toppin

Mktg. Consultants, Inc. v New York State Liq. Auth., 103 AD3d

648, 652 [2013], lv denied 21 NY3d 858 [2013]; Matter of MGN, LLC

v New York State Liq. Auth., 81 AD3d 492, 493 [2011]; Matter of

7th Ave. & Grove St. Corp. v New York State Liq. Auth., 215 AD2d

107, 108 [1995]).

Finally, petitioner contends that the fine imposed by the

Authority was excessive in light of all the circumstances,

including petitioner's cooperation with police and the fact that

it was not shown to have knowingly tolerated any misconduct. A

fine was the least severe penalty that could have been imposed;

the other available penalties included the revocation,

cancellation or suspension of petitioner's license (see Alcoholic

Beverage Control Law § 118 [1]; 9 NYCRR 54.6 [a]). In that

light, we cannot find that the mitigating factors that petitioner

points to are not reflected in the penalty. Upon review, we do

not find the penalty imposed to be "so disproportionate to the

offense, in light of all the circumstances, as to be shocking to

one's sense of fairness" (Matter of JMH, Inc. v New York State

Liq. Auth., 61 AD3d 1260, 1262 [2009] [internal quotation marks

and citations omitted]; compare Matter of Le Cave LLC v New York

State Liq. Auth., 107 AD3d 447, 448 [2013]; Matter of Sherwyn

Toppin Mktg. Consultants, Inc. v New York State Liq. Auth., 103

AD3d at 652; Matter of La Trieste Rest. & Cabaret v New York

State Liq. Auth., 249 AD2d 156, 156 [1998], lv denied 92 NY2d 809

[1998]).

Lahtinen, J.P., Lynch and Clark, JJ., concur.
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court