Opinion
July 20, 1970
Proceeding under CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Third Judicial Department by order of the Supreme Court at Special Term, entered in Albany County) to review a determination of the New York State Liquor Authority dated February 27, 1970, which canceled petitioner's liquor license on the grounds that petitioner violated section 111 Alco. Bev. Cont. of the Alcoholic Beverage Control Law in that he permitted one Paul Di Cocco to avail himself of the license, and had submitted a false statement to respondents in connection with an application for permission to make alterations. A third charge that petitioner had failed to keep and maintain on the licensed premises adequate and accurate books and records of the business was dismissed. Petitioner obtained his restaurant liquor license on December 1, 1966 and hired Paul Di Cocco to act as maitre d' on or about July 25, 1967. The evidence relating to Di Cocco's availability to petitioner's license consists of various isolated acts consisting of purchasing equipment and the payment of small items for use in the business which were repaid by petitioner to Di Cocco. The total of these acts is of a de minimis significance, the cumulative effect of which is insufficient to substantiate the charge of availing by Di Cocco of petitioner's license. "In our opinion the circumstances admit of only one inference, namely, that the person in question was employed to manage the licensed premises. (Cf. Matter of Radigan v. O'Connell, 304 N.Y. 396, 399)". ( Matter of Mendillo v. State Liq. Auth., 31 A.D.2d 974; see, also, Matter of Willis Brown v. State Liq. Auth., 22 A.D.2d 867; Matter of Meyers v. State Liq. Auth., 284 App. Div. 31.) As to the charge that petitioner made false statements on an application for alteration to the premises in regard to financing, respondents claim that petitioner, rather than the landlord, was paying for the alterations. The evidence establishes that the landlord borrowed money to pay for the alterations for which he paid and that petitioner paid monthly installments on the loan, and all moneys paid by petitioner were fully credited for the payment of rent. The hearing officer dismissed this charge, finding that there was "not sufficient evidence to establish that the licensee misrepresented the method by which the cost of the alterations would be paid". Under the circumstances here, the alleged misrepresentations, if any, were not made in bad faith, and were without intent to mislead. Respondents' finding of misconduct on this charge should be reversed. ( Matter of Jist Rest. v. State Liq. Auth., 29 A.D.2d 783, affd. 21 N.Y.2d 1026.) Considering the entire record, we find that the determination herein is not supported by substantial evidence. ( Matter of Fiorella v. Hostetter, 25 A.D.2d 801.) Determination annulled and matter remitted to respondents with a direction to reinstate the license, without costs. Herlihy, P.J., Staley, Jr., Greenblott and Sweeney, JJ., concur in memorandum by Staley, Jr., J. Reynolds, J., dissents and votes to affirm.