Opinion
2014-06-25
In the Matter of Hopeton WILLIS, petitioner, v. NEW YORK STATE LIQUOR AUTHORITY, respondent.
Lila Ayers, Mount Vernon, N.Y., for petitioner. Jacqueline P. Flug, Albany, N.Y. (Mark D. Frering of counsel), for respondent.
Lila Ayers, Mount Vernon, N.Y., for petitioner.Jacqueline P. Flug, Albany, N.Y. (Mark D. Frering of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Proceeding pursuant to CPLR article 78 to review so much of a determination of the New York State Liquor Authority dated June 10, 2013, as adopted the recommendation of an administrative law judge dated May 2, 2013, made after a hearing, sustaining three charges that the petitioner had violated Alcoholic Beverage Control Law § 106(6) and State Liquor Authority (9 NYCRR) § 53.1(p) and (q), and imposing a civil penalty of $10,000, which, upon the petitioner's nonpayment, resulted in the revocation of his liquor license and a $1,000 bond claim.
ADJUDGED that the determination is confirmed insofar as reviewed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
“ ‘Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence’ ” (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 A.D.3d 648, 651, 958 N.Y.S.2d 794, quoting Matter of Albany Manor, Inc. v. New York State Liq. Auth., 44 A.D.3d 759, 759, 844 N.Y.S.2d 52). Substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183). It is “ ‘[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt’ ” (Matter of S & S Pub., Inc. v. New York State Liq. Auth., 109 A.D.3d 933, 934, 971 N.Y.S.2d 464, quoting 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d at 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183). “ ‘The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable’ ” (Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 A.D.3d at 652, 958 N.Y.S.2d 794, quoting Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140). The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible ( see Matter of Culligan's Pub. v. New York State Liq. Auth., 170 A.D.2d 506, 565 N.Y.S.2d 851). Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency's determination, unless it is seriously controverted ( see Matter of S & S Pub., Inc. v. New York State Liq. Auth., 109 A.D.3d 933, 971 N.Y.S.2d 464;Matter of JMH, Inc. v. New York State Liq. Auth., 61 A.D.3d 1260, 1261, 877 N.Y.S.2d 737).
Here, contrary to the petitioner's contention, the respondent's determination, sustaining three charges that the petitioner violated Alcoholic Beverage Control Law § 106(6) and State Liquor Authority (9 NYCRR) § 53.1(p) and (q), is supported by substantial evidence ( see Matter of Sherwyn Toppin Mktg. Consultants, Inc. v. New York State Liq. Auth., 103 A.D.3d 648, 958 N.Y.S.2d 794;Matter of Confetti, Inc. v. New York State Liq. Auth., 44 A.D.3d 1041, 845 N.Y.S.2d 794;Matter of Go W. Entertainment, Inc. v. New York State Liq. Auth., 54 A.D.3d 609, 863 N.Y.S.2d 670;Matter of Jericho Pub v. New York State Liq. Auth., 4 A.D.3d 228, 772 N.Y.S.2d 66;Hogs & Heifers v. New York State Liq. Auth., 280 A.D.2d 367, 720 N.Y.S.2d 484).The petitioner's testimony at the hearing, consisting of conclusory denials, did not seriously controvert the respondent's showing of substantial evidence in support of the charges.
Further, the penalty imposed by the respondent is not so disproportionate to the offenses as to be shocking to one's sense of fairness ( see Matter of S & S Pub., Inc. v. New York State Liq. Auth., 109 A.D.3d 933, 971 N.Y.S.2d 464). In setting a penalty, consideration of the history and previous record of a licensee and the licensed premises is appropriate ( see Matter of Antolino v. New York State Liq. Auth., 38 A.D.3d 881, 882, 831 N.Y.S.2d 337;Matter of Untitled LLC v. New York State Liq. Auth., 82 A.D.3d 460, 461, 918 N.Y.S.2d 91;Matter of JMH, Inc. v. New York State Liq. Auth., 61 A.D.3d at 1263, 877 N.Y.S.2d 737).
The petitioner's remaining contentions are without merit.