Opinion
March 11, 1994
Appeal from the Supreme Court, Monroe County, Wisner, J.
Present — Balio, J.P., Lawton, Doerr, Davis and Boehm, JJ.
Determination unanimously annulled on the law without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding to challenge a determination of the New York State Liquor Authority (SLA) that it violated Alcoholic Beverage Control Law § 65 (2). The SLA reversed the finding of no violation made by the Administrative Law Judge, and found that petitioner violated Alcoholic Beverage Control Law § 65 (2) by selling alcoholic beverages to "an intoxicated person or to a person actually under the influence of liquor". Alcoholic Beverage Control Law § 65 (2) was amended in 1986, several years prior to the incident in question, to prohibit sales to "[a]ny visibly intoxicated person". The language relied upon by the SLA to determine petitioner's guilt was eliminated by that amendment (see, Donato v. McLaughlin, 195 A.D.2d 685; Blazynski v Gallagher, 187 A.D.2d 1018). Consequently, we annul the determination and remit the matter to the SLA to evaluate the proof adduced at the hearing using the correct legal standard.