Matter of Cafe La China Corp. v. New York State Liquor Authority

• Decision Date: 09 August 2007
• Docket Number: 9802.
• Citation: 43 A.D.3d 280,841 N.Y.S.2d 30,2007 NY Slip Op 06403
• Parties: In the Matter of CAFÉ LA CHINA CORP., Petitioner, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

43 A.D.3d 280

841 N.Y.S.2d 30

2007 NY Slip Op 06403

In the Matter of CAFÉ LA CHINA CORP., Petitioner, v. NEW YORK STATE LIQUOR AUTHORITY, Respondent.

9802.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided August 9, 2007.

Determination of respondent, dated July 11, 2005, which, after an evidentiary hearing, sustained two charges of violating Alcoholic Beverage Control Law § 65 (2), and imposed a $3,000 civil penalty or, in the event of noncompliance, a 20-day suspension plus $1,000 bond forfeiture, confirmed, the petition denied and the proceeding (transferred to this Court by order of Supreme Court, New York County [Rosalyn Richter, J.], entered July 25, 2005) dismissed, without costs.

It is settled that judicial review of an administrative determination is limited to consideration of whether or not such determination is supported by substantial evidence (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 [1978]; Matter of Vallebuona v Kerik, 294 AD2d 44, 50 [2002]), and the issue of whether the agency's findings are supported by substantial evidence is a question of law for the courts (300 Gramatan Ave. Assoc., 45 NY2d at 181; Matter of Goldsmith v DeBuono, 245 AD2d 627, 628 [1997]). Substantial evidence, which has been characterized as a "minimal standard" (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 188 [1998]; Matter of Joseph v Johnson, 27 AD3d 563, 563 [2006]), or as comprising a "low threshold" (Matter of Patricia Ann Cottage Pub, Inc. v Mermelstein, 36 AD3d 816, 818 [2007]), must consist of such relevant proof, within the whole record, "as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc., 45 NY2d at 180; see also Matter of Star Rubbish Removal Corp. v Martinez, 15 AD3d 587, 588 [2005]). The Court of Appeals has noted that substantial evidence "requires less than `clear and convincing evidence' (Matter of Carriage House Motor Inn v City of Watertown, 136 AD2d 895, supra), and less than proof by `a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt'" (FMC Corp., 92 NY2d at 188, quoting 300 Gramatan Ave. Assoc., 45 NY2d at 180). Indeed, as a burden of proof, "it demands only that `a given inference is reasonable and plausible, not necessarily the most probable`" (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997], quoting Borchers and Markell, New York State Administrative Procedure and Practice § 3.12, at 51 [1995] [emphasis added]; see also Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]), and the courts may not weigh the evidence or reject the conclusion of the administrative agency where the evidence is conflicting and room for choice exists (id. at 444; Matter of Stork Rest. v Boland, 282 NY 256, 267 [1940]; Matter of Acosta v Wollett, 55 NY2d 761, 763 [1981]; Matter of Verdell v Lincoln Amsterdam House, Inc., 27 AD3d 388, 390 [2006]).

In this matter, we find that the determination as to both charges should be confirmed. "Hearsay evidence can be the basis of an administrative determination" and, if sufficiently probative, it alone may constitute substantial evidence (Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]; Matter of Hoch v New York State Dept. of Health, 1 AD3d 994 [2003]). Likewise, substantial evidence may be supplied by circumstantial evidence (Matter of S & R Lake Lounge v New York State Liq. Auth., 87 NY2d 206, 209 [1995]; Patricia Ann Cottage Pub, Inc., 36 AD3d at 818).

With regard to the first charge, Officer Reilly testified that the security guard at the establishment informed him that the intoxicated individual had been drinking inside the establishment before he stumbled outside, fell and hit his head. The fact that the officer could not recall the security guard's exact words, or the type of beer the intoxicated individual was drinking, is irrelevant. As to the second charge, the undisputed evidence that the intoxicated person was drinking on the premises, coupled with the police officer's testimony regarding his condition outside the premises on the officer's arrival, is more than sufficient to sustain the agency's determination as to the second charge. To the extent that petitioner's arguments rest on conflicting testimony, we note that the Administrative Law Judge's factual findings, which turn on the issue of credibility, are entitled to great weight (Matter of Grossberg v Christian, 245 AD2d 118 [1997]; Matter of Motell v Napolitano, 186 AD2d 989, 990 [1992]), and we are presented with no basis to disturb those findings.

Concur — Tom, J.P., Andrias, Marlow and Nardelli, JJ.

McGuire, J., dissents in a memorandum as follows:

Petitioner, which operates an eatery in Mount Kisco, was served by respondent with notice of a proceeding to cancel or revoke the license to sell and serve beer that respondent had issued petitioner. The notice asserted that on September 27 and October 11, 2004 petitioner violated Alcoholic Beverage Control Law § 65 (2), which prohibits the provision of alcoholic beverages to a "visibly intoxicated person." Two charges—one for each date—were brought against petitioner.

An administrative hearing was subsequently held. With respect to the September 27 charge, respondent presented the testimony of Mount Kisco Police Officer Janik, who, while serving as the desk officer at approximately 2:00 A.M. on that date, received a telephone call from Edwin Orrego, a patron at petitioner's establishment. According to Officer Janik, Orrego called to request that an ambulance be sent to the establishment for "an intoxicated male [i.e., an individual named Sandoval] who exited the premises, stumbled outside ... and fell and hit his face and head." Officer Janik dispatched Police Officer Reilly to the scene.

Officer Reilly testified that, upon arriving at the establishment, he noticed Sandoval with bloodshot eyes and "the odor of an alcoholic beverage emanating from him" laying near the doorway to the establishment. While at the establishment Officer Reilly had a conversation with Orrego, whom the officer knew. According to Officer Reilly, Orrego stated words to the effect that: "[Sandoval] was inside drinking and he was leaving [petitioner's establishment]. He was stumbling and he—he lost his balance ... and fell on his face." On cross-examination, however, Officer Reilly testified that he did not recall whether Orrego told him that Orrego had seen Sandoval drinking inside the establishment. The officer went on to testify that there was "a possibility [Orrego] said [that he saw Sandoval drinking in petitioner's establishment], but [the officer could not] recall." Officer Reilly also spoke with a security guard at the establishment who told the officer that Sandoval had been in the establishment and was drunk.

In an effort to clarify the substance of Officer Reilly's testimony, the Administrative Law Judge (ALJ) questioned the officer regarding whether Orrego, the security guard, or both stated that they saw Sandoval drinking inside the establishment. The following colloquy between the ALJ and Officer Reilly ensued:

"[ALJ]: I just want to make sure that you understand that you are to tell me to the best of your ability. But if you—you know, I know it's a long time ago, and you're involved with a lot of police actions. So, you can't remember everything. But did the security guard or Mr. Orrego actually tell you that [Sandoval] was consuming alcohol at any point inside the premises? Either one of them?

"[OFFICER REILLY]: What I recall is just the basic understanding and knowledge of what happened. And my belief is that [Sandoval] was inside the premises, drinking by what they were saying to me. But I don't recall the actual words that— [Sandoval] was inside drinking, he exited and he fell down. He was too intoxicated—

"[ALJ]: Okay. I don't need the actual words, but I want to know did they tell you that they observed him actually consuming alcohol inside the premises? Is that your understanding or not your understanding?

"[OFFICER REILLY]: Basically, my understanding is that they said he was drinking inside the establishment. Now, did they say Corona or Budweiser or—

"[ALJ]: No, no. Again, I don't care what, I just want to know was [Sandoval] drinking, or is it possible that he was drunk in another premises and went there to use the bathroom and wasn't drinking? ...

"[OFFICER REILLY]: Yeah. I don't think they would have let [Sandoval] in [petitioner's establishment] intoxicated, the condition he was in. I don't think they're allowed to let [Sandoval] in, the bouncers. They're always at that door and they—and a lot of times they deny us access into the place. But, you know, they're very strict about that. So, I don't think they would let an intoxicated person in. So, my assumption is that [Sandoval] was drinking inside and he walked out. And [Sandoval] was drinking the alcohol inside.

"[COUNSEL FOR PETITIONER]: But that's an assumption on your part, correct?

"[OFFICER REILLY]: Yeah."

With respect to the October 11 charge, respondent presented the testimony of Mount Kisco Police Officer Whalen. Officer Whalen testified that while patrolling the neighborhood of the establishment at approximately 3:00 A.M., he observed two security officers from the establishment (i.e., Flores and Vanegas) motioning to him. The officer had a conversation with Flores, whom the officer knew. Officer Whalen recounted that Flores had told him that: "[the security officers] had a problem with a fellow [i.e., Molatana] inside the bar, that they cut off. They weren't going to serve him anymore. And [Molatana] gave them a hard time and caused a bit of a problem in the bar. And [the security officers] pushed him out the door." Flores also told Officer Whalen that, about...