Because there is substantial evidence to support respondent’s findings that petitioner establishment sold alcoholic beverages to minors in violation of Alcoholic Beverage Control Law § 65 (1) and failed to exercise adequate supervision over the conduct of the licensed business in violation of Rules of the State Liquor Authority rule 54.2 (9 NYCRR 48.2), I respectfully dissent and would confirm the agency’s determination.
The record contains evidence that, on the night in issue, the police department received a call of underage drinking at petitioner’s nightclub. The evidence further showed that a group of patrons who appeared to be under 21 years of age were observed at the bar on the licensed premises in possession of beverages in unmarked containers. From the odor, respondent’s witness, Police Officer Adnan Chowdhury, determined that the beverages contained alcohol. Two patrons in the group, Paolo Curcio and Michael J. Marcone, produced driver’s licenses showing them to be under age 21. Since Officer Chowdhury had observed them drinking the beverages, he issued two summonses to each of them for, respectively, the possession and the consumption of alcohol by a minor. Six other persons in the group could not produce valid proof of age and were directed to leave the premises by the officer, who then issued six summonses to the bartender for selling alcoholic beverages to minors. The officer testified that he observed these six patrons “drinking from glasses of an alcoholic beverage,” and stated that it was his customary procedure to ascertain that a patron was consuming alcohol before issuing any summons in connection with its sale.
Petitioner contends, and the majority accepts, that respondent’s proof is insubstantial because Officer Chowdhury did not observe anyone actually sell Curcio and Marcone the beverages they had in their possession. As to the six patrons who could not produce identification, petitioner argues that in the absence of any documentation of their respective ages, there is no proof that its bartender sold alcoholic beverages to underage drinkers. Indeed, as the record reflects, the charges against the bar*271tender for serving these individuals were dismissed because Officer Chowdhury failed to appear in Criminal Court.
Petitioner’s witnesses testified that the establishment serves both alcoholic and nonalcoholic drinks and therefore admits persons under 21 years of age. Patrons who produce valid identification indicating they are at least 21 are issued wristbands that enable them to purchase alcoholic beverages. Even so, petitioner’s bartenders do not serve patrons who appear to be under 21 without first obtaining valid proof of age.
It is settled that an administrative determination must be sustained if it is supported by substantial evidence upon the record as a whole (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978]), which requires less than a preponderance of the evidence and may include hearsay testimony and circumstantial evidence (see generally Matter of Café La China Corp. v New York State Liq. Auth., 43 AD3d 280, 280-281 [2007].) An administrative law judge is required to assess the credibility of witnesses and draw reasonable inferences, “and the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists” (id. at 281).
The summonses issued to Curcio and Marcone establish, at a minimum, that two patrons under the age of 21 were in possession of alcoholic beverages and drinking those beverages on petitioner’s premises and, thus, that “the Licensee sold, delivered or gave away, or permitted to be sold, delivered or given away, alcoholic beverages to a person or persons actually under the age of twenty-one years,” as preferred in the first administrative charge. The record further supports the conclusion that by permitting the consumption of alcohol by minors to take place, “the Licensee failed to exercise adequate supervision over the conduct of the Licensed business,” as specified in the second charge.
That deficient oversight did not result in the premises becoming disorderly so as to constitute a violation of Alcoholic Beverage Control Law § 106 (6) does not serve to obviate petitioner’s failure to exercise adequate supervision to prevent the possession and consumption of alcoholic beverages by persons under 21 years of age. Although testimony was received that no person appearing to be less than 21 would be served without producing valid proof of age, six patrons observed drinking alcoholic beverages were ejected by Officer Chowdhury when they were unable to produce any identification, and two persons were issued sum-*272mouses when the driver’s licenses they produced showed them to be underage. Thus, it is evident that the degree of oversight exercised by petitioner was not sufficient to prevent at least two, and apparently as many as eight, underage patrons from obtaining and consuming alcoholic beverages on the premises. Respondent’s finding that these persons obtained their drinks as a result of petitioner’s failure to exercise adequate supervision over the licensed premises so as to prevent violations of Alcoholic Beverage Control Law § 65 (1) is “a conclusion or ultimate fact” that may be reasonably extracted from the record (300 Gramatan Ave. Assoc., 45 NY2d at 180) and thus constitutes sufficient evidence to support the determination. Further, Nikita Dallaris, one of the owners, testified that if a potential patron does not have an ID, he or she cannot get in. Yet there were six individuals on the premises who had no identification.
Accordingly, respondent’s determination should be confirmed and the petition dismissed.
Gonzalez, P.J., Sweeny and Renwick, JJ., concur with Catterson, J.; Tom, J., dissents in a separate opinion.
In this CFLR article 78 proceeding (transferred to this Court by order of Supreme Court, New York County, entered September 5, 2008), the petition, challenging the determination of respondent New York State Liquor Authority, dated May 20, 2008, is granted and the determination annulled, without costs.