Opinion
13172 Index No. 154203/20 Case No. 2020-03537
02-18-2021
In the Matter of 156 10TH AVENUE WINE & LIQUOR INC., Petitioner, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.
Mehler & Buscemi, New York (Francis R. Buscemi of counsel), for petitioner. Gary Meyerhoff, New York (Stefan Armstrong of counsel), for respondent.
Mehler & Buscemi, New York (Francis R. Buscemi of counsel), for petitioner.
Gary Meyerhoff, New York (Stefan Armstrong of counsel), for respondent.
Renwick, J.P., Kern, Singh, Shulman, JJ.
Determination of respondent, dated June 11, 2020, which, after a hearing, sustained charges that petitioner, inter alia, failed to disclose material information on its liquor license application, and cancelled petitioner's license, 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 [Debra James, J.], entered on or about August 19, 2020), dismissed, without costs.
As an initial matter, it is noted that petitioner does not challenge the finding that it used a trade name for its store without seeking or obtaining respondent's permission (see 9 NYCRR 53.1 [p]).
As to the failure to disclose, respondent's determination is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 179–182, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ), which supports the conclusion that petitioner made a "false material statement" or "conceal[ed] or suppress[ed] ... facts ... in connection with an application for a license or permit ..." ( 9 NYCRR 53.1 [b]). Petitioner's sole owner admitted that she did not include her entire alcohol industry employment history for the previous five years in her personal questionnaire. Contrary to petitioner's contention, the charges may be sustained where a failure to disclose is "the result of negligence or ignorance of the law, rather than willfulness or an intent to deceive" ( Matter of Platinum Pleasures of NY, Inc. v. New York State Liq. Auth., 126 A.D.3d 587, 588, 8 N.Y.S.3d 265 [1st Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5152345 [2015] ).
Furthermore, the penalty imposed does not shock our sense of fairness (see generally Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ). Respondent did not abuse its discretion by considering, at the full hearing of respondent's Board, the investigation involving the husband of petitioner's owner, who, as admitted by two stores where the owner worked, availed himself of their licenses, and whose scheme allegedly included petitioner's predecessor on the premises (see Alcoholic Beverage Control Law § 111 ). Respondent appropriately considered "the nature and gravity of the violation in question and the previous record and history of the licensee and the licensed premises" ( Awrich v. New York State Liq. Auth., 92 A.D.2d 925, 927, 460 N.Y.S.2d 347 [2d Dept. 1983] [internal quotation marks omitted], affd 60 N.Y.2d 645, 467 N.Y.S.2d 564, 454 N.E.2d 1307 [1983] ; see 9 NYCRR 54.6 [a]).
We have considered petitioner's remaining contentions and find them unavailing.