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25-24 Café Concerto Ltd. v. New York State Liquor Authority

June 30, 2009

IN RE 25-24 CAFÉ CONCERTO LTD., PETITIONER,
v.
NEW YORK STATE LIQUOR AUTHORITY, RESPONDENT.



In this Article 78 proceeding (transferred to this Court by order of Supreme Court, New York County [Walter B. Tolub, J.], entered September 5, 2008), the petition challenges the determination of respondent New York State Liquor Authority, dated May 20, 2008, which, upon a finding that petitioner violated Alcoholic Beverage Control Law § 65(1) and State Liquor Authority Rule 54.2 (9 NYCRR 48.2), imposed a civil penalty.

The opinion of the court was delivered by: Catterson, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Luis A. Gonzalez, P.J., Peter Tom, John W. Sweeny, Jr., James M. Catterson, Dianne T. Renwick, JJ.

Index 108530/08

On the evening of January 15, 2006, in response to a complaint about underage drinking, a group of New York City police officers arrived on the petitioner's premises, a nightclub located in Astoria, Queens. Subsequently, four charges were brought against the petitioner by the New York State Liquor Authority (hereinafter referred to as the "SLA"): (1) allowing the sale of alcohol to an underage person or persons on January 15, 2006 in violation of section 65(1) of the Alcoholic Beverage Control Law (hereinafter referred to as the "ABC Law"); (2) failure to exercise adequate supervision over the conduct of the licensed business in violation of rules 54.2 (9 NYCRR 48.2) and 36.1(f) (9 NYCRR 53.1(f)) of the Rules of the SLA; (3) suffering or permitting the premises to become disorderly in violation of section 106(6) of the ABC Law; and (4) allowing the premises to become disorderly by suffering or permitting an altercation to occur on the licensed premises in violation of ABC Law 106(6).

In support of the charges, the SLA submitted copies of summonses issued by Officer Chowdhury to two individuals at the premises, for "possession of alcohol by minor" and "consumption of alcohol by minor." These summonses list the birth dates of two individuals and indicate that both were under 21 years of age on the date the summonses were issued. The SLA also submitted six summonses issued by Officer Chowdhury to a bartender at the club, which stated that the bartender had violated section 65(1) of the ABC Law insofar as he sold (or permitted to be sold) alcohol to minors.

A hearing was held before an administrative law judge on October 5, 2007. At the hearing, Officer Chowdhury, a member of the 114th precinct's Conditions Unit, testified that on the evening of January 15, 2006, he was assigned to midnight patrol duty. Officer Chowdhury further testified that after he received a call about underage drinking at the petitioner's premises, he immediately went to inspect the premises with a group of other police officers. Upon entering the premises, Officer Chowdhury stated that he "saw a lot of individuals drinking at a bar." He testified that it was his belief that many of the individuals "appeared [...] to be underage."

Approximately five minutes after entering the premises, Officer Chowdhury approached a group of eight individuals drinking out of unmarked containers near the bar. He then asked the group to step away from the bar to a different location "where they could talk." After removing the group to a quieter location outside of the premises, Officer Chowdhury asked the eight individuals to provide him with identification.

Two of the individuals handed him their New York State driver's licenses. Officer Chowdhury testified that both of the licenses indicated the individuals were under 21 years old. The officer then sniffed the drinks that the two individuals were holding and determined by the smell that they contained alcohol. The officer stated that he recognized the smell of alcohol from his experience as a police officer. He admitted, however, that there is no special training given for identifying alcohol by its smell. Moreover, he could not recall whether he smelled beer, wine or hard liquor.

He then issued each of the two individuals a summons for "possession of alcohol by minor" and a summons for "consumption of alcohol." After issuing the summonses, Officer Chowdhury returned their licenses. He did not make a copy of either of the licenses so the licenses were not before the ALJ.

Officer Chowdhury further testified that the other six individuals did not have any identification, and that he told them to leave the premises because he was convinced that "they were underage and drinking." The record is unclear whether Officer Chowdhury sniffed any beverages possessed by these individuals.

After the group of eight individuals dispersed, Officer Chowdhury went back to the bar where he identified the bartender, Halambros Ioannides, as "the person in charge." He then issued Ioannides six summonses. Each of the summonses stated that Ioannides had violated section 65(1) of the ABC Law insofar as he allegedly sold alcohol to a minor. Officer Chowdhury testified that he issued the summonses to Ioannides "for the six individuals who did not have [identification]." Notably, the officer conceded that, at no point, did he observe Ioannides serve alcohol to anyone while he was inspecting the premises and that he was instructed to write the summonses by his supervising officer.

Ioannides testified that he did not sell alcoholic beverages to any underage individuals on the premises. He explained that the petitioner used a system where only individuals 21 years or older were given wristbands upon entry to the club and that he sold alcohol only to individuals with wristbands. Ioannides also testified that, even if a patron has a wristband, he would decline to serve the individual alcoholic beverages if he or she appeared to be under 21 ...


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