Lihs Beverages, Inc. v. New York State Liquor Authority

• Decision Date: 11 March 1994
• Citation: 202 A.D.2d 1050,609 N.Y.S.2d 465
• Parties: LIHS BEVERAGES, INC., D/B/A Earl's Discount Liquor Store, Petitioner, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 465

609 N.Y.S.2d 465

202 A.D.2d 1050

LIHS BEVERAGES, INC., D/B/A Earl's Discount Liquor Store, Petitioner, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

March 11, 1994.

Connors & Corcoran by Eileen Buholz, Rochester, for petitioner.

State Liquor Authority (Gerald M. Trafalski, of counsel), Buffalo, for respondent.

Before BALIO, J.P., and LAWTON, DOERR, DAVIS and BOEHM, JJ.

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 "[a]ny intoxicated person or to any person, actually or apparently, 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, 599 N.Y.S.2d 754; Blazynski v. Gallagher, 187 A.D.2d 1018, 590 N.Y.S.2d 365). 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.

Determination unanimously annulled on the law without costs and matter remitted to respondent for further proceedings.