In this proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Nicholas Figueroa, J.], entered on or about June 30, 2009), the petition granted, the determination of respondent, dated October 15, 2008, which canceled petitioner's off-premises liquor license and imposed a $1,000 bond forfeiture, unanimously annulled, on the law, and the underlying administrative complaint dismissed, without costs.
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.
Mazzarelli, J.P., Sweeny, Catterson, Freedman, RomÁn, JJ.
Respondent's finding that petitioner unlawfully transferred alcoholic beverages to another entity did not establish that petitioner sold such beverages, a key element in proving a violation of Alcoholic Beverage Control Law § 100(1) (see Matter of Henry St. Liqs. v New York State Liq. Auth., 227 AD2d 258 ; see also Matter of Domin v New York State Liq. Auth., 216 AD2d 297 ; Matter of CVS Discount Liq. v New York State Liq. Auth., 207 AD2d 891 ). Contrary to the dissent's contention, the record is bereft of any evidence that petitioner transferred the alcohol for consideration, as required by Section 3(28) of the Alcoholic Beverage Control Law. All concur except Sweeny, J. who dissents in a memorandum as follows:
I dissent. The issue before the court is whether respondent sustained its burden by the minimal standard of substantial evidence. It clearly did.
Petitioner 47 Ave B. East, Inc., d/b/a Le Souk, and Carthage Palace Inc. (Carthage), d/b/a Carne Vale, are both liquor licensees whose establishments are located across the street from each other. Carthage is owned by Marcus Yacob while petitioner is owned by Sameh Yacob, Marcus' brother.
Respondent opened an inquiry after receiving allegations from an undisclosed source that Carthage was improperly obtaining its liquor from an unauthorized entity; specifically, that bottles of liquor were being carried from Le Souk by its employees to Carthage. This source also claimed that Sameh, the sole principal of Le Souk, was running Carthage with his brother Marcus.
As part of that inquiry, on November 14, 2006, Investigators Englander and Cruz went to Charmer Industries, Inc., the exclusive distributor of certain brands of liquor, where they learned that Charmer made four deliveries to Carthage, in the total approximate amount of $2,500. The last delivery occurred on December 3, 2004. As Carthage had not paid its bill, no subsequent deliveries were made by Charmer to Carthage.
The investigators then went to Carthage where they observed, behind the bar counter, 8 different brands of liquor totaling 20 one-liter bottles that were distributed exclusively by Charmer. Seven of those bottles had been opened and appeared partially consumed. These bottles were placed on the bar and photographed by the investigators, who then asked an employee of Carthage to speak with the person in charge. One of the employees went across the street and returned with Sameh.
The investigators pointed out the liquor bottles in question and asked Sameh if he had the wholesaler's invoices for them. When Sameh said he would have to ask his brother Marcus for those documents, Investigator Englander told Sameh that he knew no deliveries had been made from Charmer to Carthage since December 2004, and that he suspected the liquor had come from Le Souk. Englander testified at the license revocation hearing that Sameh "confirmed that that's what had happened, and when I asked him how the bottles had gotten there, he just kind of curtly said, they're here.'" Because Englander believed this statement to be an admission, he did not conduct any follow up investigation.
Sameh Yacob testified at the hearing that he was the owner of Le Souk and his brother Marcus was the manager/partner of Carthage. He acknowledged having a conversation with Investigator Englander but claimed he told Englander, "The alcohol is here. I don't know where it came from," and that Marcus had the invoices for the alcohol in question. He denied that he told Englander that the alcohol came from Le Souk and stated Le Souk never gave or sold any alcoholic beverages to Carthage.
When asked if he spoke to Marcus about these charges, Sameh testified that Marcus told him some of the alcohol came from previous owners and some from auctions. No documentation regarding the ...