Theodore Polon Inc. v. State Liquor Authority

• Decision Date: 28 November 1977
• Citation: 59 A.D.2d 946,399 N.Y.S.2d 469
• Parties: In the Matter of THEODORE POLON INC., Petitioner, v. STATE LIQUOR AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 469

399 N.Y.S.2d 469

59 A.D.2d 946

In the Matter of THEODORE POLON INC., Petitioner, v. STATE LIQUOR AUTHORITY, Respondent.

Supreme Court, Appellate Division, Second Department.

Nov. 28, 1977.

Fein, Silberbush, Katz & Linn, P.C., New York City (Michael Linn, New York City, of counsel), for petitioner.

Warren B. Pesetsky, New York City (Martin P. Mehler, New York City, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen., New York City (Kenneth W. Levitt, John Desiderio and Samuel A. Hirshowitz, New York City, of counsel), appearing pursuant to section 71 of the Executive Law.

Before HOPKINS, J. P., and LATHAM, SHAPIRO and MOLLEN, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent State Liquor Authority which, after a hearing, found that the petitioner had violated section 101-bb (subd. 2) of the Alcoholic Beverage Control Law, suspended its retail liquor store license for a certain period, and forfeited its bond in the sum of $1,000.

Determination confirmed and proceeding dismissed on the merits, without costs or disbursements.

There is substantial evidence to support the determination. The assertion of mistake is no defense to a violation of section 101-bb (subd. 2) of the Alcoholic Beverage Control Law where, as here, the petitioner failed to exercise reasonable supervision over an inexperienced employee. Furthermore, the testimony of the respondent's investigator belies any assertion of mistake and such testimony was fully credited. The petitioner's assertion of entrapment has been considered and is wholly lacking in merit.

The final contention, that section 101-bb (subd. 2) of the Alcoholic Beverage Control Law is invalid as a violation of the Sherman Antitrust Act, is also without merit. The statute falls well within the intended scope of the Twenty-first Amendment to the United States Constitution and constitutes State action which does not conflict with the Sherman Antitrust Act (see Seagram & Sons v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350; Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315).