Austin Lemontree, Inc. v. New York State Liquor Authority

Lawrence, J.

dissents and votes to grant the petition, annul the determination, on the law, and vacate the penalty imposed, with costs, with the following memorandum decision in which Kooper, J., concurs: The respondent New York State Liquor Authority alleged that the petitioner had violated Alcoholic Beverage Control Law § 65 in that it sold, delivered or gave away or permitted to be sold, delivered or given away alcoholic beverages to a person or persons under the age of 21 years (see, Alcoholic Beverage Control Law §65 [1]). The competent evidence adduced at the hearing, which was supplied exclusively by the minor to whom the alcoholic beverage was allegedly provided, disclosed that the minor was approximately three feet from the bar counter in the establishment when she received a drink from an unidentified male patron who had offered to buy her a drink. No further testimony was adduced with respect to the manner in which the unidentified male patron obtained the drink. Nor did the male patron testify at the hearing.

In view of the position taken by this court in Matter of Panacea Tavern v New York State Liq. Auth. (144 AD2d 562), Matter of Park II Villa Corp. v New York State Liq. Auth. (141 AD2d 646), and Matter of 4373 Tavern Corp. v New York State Liq. Auth. (50 AD2d 855, 856), I must conclude that the record herein lacks substantial evidence to establish that the petitioner knew or should have known, of the manner in which the drink was obtained by the male patron, or that it *478was ultimately intended for delivery to the minor for consumption.