Dumbarton Oaks Restaurant & Bar, Inc. v. New York State Liquor Authority

Majority

p. 89

In the Matter of Dumbarton Oaks Restaurant & Bar, Inc., Appellant, v New York State Liquor Authority, Respondent.

Argued January 7, 1983;

decided February 8, 1983

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POINTS OF COUNSEL

Martin P. Mehler for appellant.

I. There is no “substantial” evidence to sustain the determination of the State Liquor Authority revoking petitioner’s restaurant liquor license with $1,000 bond forfeiture and a $2,250 fine. (Edison Co. v Labor Bd., 305 US 197 ; Matter of Stork Rest. v Boland, 282 NY 256 ; Matter of Standard Food Prods. Corp. v O’Connell, 296 NY 52 ; Matter of Mendillo v State Liq. Auth., 31 AD2d 974 ; Matter of Lacqua v O’Connell, 280 App Div 31 .) II. Under the circumstances involved herein, the penalty of revocation with bond forfeiture of $1,000 and a $2,250 fine is so shocking to one’s sense of justice, so excessive, harsh and severe, as to constitute an abuse of discretion on the part of the Authority. (Matter of Stolz v Board of Regents of Univ. of State of N. Y., 4 AD2d 361 ; Matter of Potter v New York State Liq. Auth., 37 AD2d 760 ; Telesco v New York State Liq. Auth., 39 AD2d 599 ; Matter of Goldsberg v State Liq. Auth., 42 AD2d 814 ; Matter of Lakeside Country Club v New York State Liq. Auth., 34 AD2d 1100 ; Matter of Papoutsis v State Liq. Auth., 32 AD2d 284 ; Matter of 230 Green Rest. v State Liq. Auth., 32 AD2d 898 ; Matter of Cassouteau v State Liq. Auth., 36 AD2d 644 ; Matter of Scult v New York State Liq. Auth., 33 AD2d 792 ; Matter of L’Intrigue, Inc. v State Liq. Auth., 29 AD2d 854 ; Matter of Manitta v State Liq. Auth., 34 AD2d 545 .) III. The State Liquor Authority cannot exceed the powers granted to it by law. The Authority has no power to penalize a licensee with a fine. Therefore, the $2,250 fine

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in addition to the revocation and $1,000 bond claim is clearly an abuse of its powers and duties. (Mancini v McLaughlin, 54 NY2d 860 ; Matter of Levine v O’Connell, 275 App Div 217 , 300 NY 658 ; Matter of Bizarre, Inc. v State Liq. Auth., 29 AD2d 500 , 22 NY2d 721 .)

Michael J. Greenfeld and Stanley Stein for respondent.

I. The record discloses substantial evidence to sustain the determination of respondent State Liquor Authority that petitioner violated the Alcoholic Beverage Control Law as charged and found. (Matter of Humphrey v State Ins. Fund, 298 NY 327 ; Matter of Miller v Kling, 291 NY 65 ; Matter of Avon Bar & Grill v O’Connell, 301 NY 150 ; Matter of Kopec v Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 NY 65 ; Matter of Stork Rest. v Boland, 282 NY 256 .) II. Revocation of petitioner’s restaurant liquor license, imposition of a $1,000 forfeiture of its bond and a fine of $2,250 was fully warranted by the violations committee and, under the circumstances revealed in the record, was not unduly harsh or excessive or an abuse of the Authority’s discretion. (Matter of C’Est Si Bon Rest. v State Liq. Auth., 9 AD2d 884 ; Matter of Regal Wine & Liq. v State Liq. Auth., 12 AD2d 758 , 9 NY2d 609 ; Matter of Sforza v Epstein, 16 AD2d 930 , 12 NY2d 642 ; Matter of Ritor Rest. Corp. v New York State Liq. Auth., 27 AD2d 710 ; Matter of Chandelier Rest. v State Liq. Auth., 27 AD2d 902 ; Matter of Chaleco Rest. Corp. v New York State Liq. Auth., 27 AD2d 829 ; Matter of Thompson’s Beer Delivery v State Liq. Auth., 28 AD2d 822 ; Matter of Kaplan v State Liq. Auth., 28 AD2d 646 ; Matter of Oasis Rest. v State Liq. Auth., 29 AD2d 687 ; Matter of Stolz v Board of Regents of Univ. of State of N. Y., 4 AD2d 361 .) III. The Authority did not exceed the powers granted to it by law by imposing a fine of $2,250 in connection with the refilling of liquor bottles by petitioner.

OPINION OF THE COURT

The determination of the State Liquor Authority (Authority) that the licensee violated section 111 of the Alcoholic Beverage Control Law was supported by substantial evidence and permitted revocation of petitioner’s license and imposition of a $1,000 bond claim. However, the Au

I

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thority has not been empowered to impose a fine, and its imposition of a $2,250 fine for violation of subdivision 2 of section 106 of the Alcoholic Beverage Control Law cannot, therefore, be sustained, notwithstanding petitioner’s no contest plea to that charge. The judgment of the Appellate Division should, therefore, be modified, with costs, to annul so much of the Authority’s determination as imposed the $2,250 fine on the latter charge and, as so modified, should be affirmed, thus sustaining the revocation and bond claim.

Petitioner is a corporate holder of a restaurant liquor license, of which Dennis V. Quirke, Jr., was, according to the papers filed with the Authority by petitioner, the sole principal. Petitioner was charged in a revocation proceeding with five separate violations of the Alcoholic Beverage Control Law: (1) permitting Quirke’s father-in-law to avail himself of the license, (2) keeping liquor in containers the contents of which were not as represented by the label, (3) purchasing liquor for resale from a person not licensed to sell for resale, (4) altering the licensed premises without permission, and (5) failing to keep and maintain on the premises accurate books and records. Having originally pleaded not guilty to all the charges, petitioner during the revocation hearing amended its plea on charge 2 to “no contest” and stipulated that there were nine bottles of liquor in question. The hearing officer held all five charges sustained and the Authority determined the “appropriate penalty [to be] revocation and $1,000 bond claim plus $2,250 fine on charge 2.”

Petitioner then sought review of that determination in this article 78 proceeding. Upon transfer of the proceeding by Supreme Court to the Appellate Division, the latter court affirmed, without opinion, and dismissed the proceeding on the merits. Petitioner appeals to us by leave of this court ( 56 NY2d 507 ). Its brief before us contests whether there was substantial evidence to sustain the availing charge and, assuming, arguendo, that there was substantial evidence to sustain charges 3, 4 and 5, the propriety and legality of the penalty imposed. We modify to annul the $2,250 fine on charge 2 and affirm.

II

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There was substantial evidence to support the Authority’s determination that the licensee permitted Quirke’s father-in-law, a person not mentioned in the license, to avail himself of the license. Testifying before the hearing officer, Quirke did not know either the renewal date or the current license fee payable for the premises and acknowledged that the signature of his name to the renewal application was not in his handwriting. The frequent presence of the father-in-law on the premises and Quirke’s concession to the investigator of his father-in-law’s interest, credited by the hearing officer though denied by the licensee at the hearing, add up to evidence which “ ‘a reasonable mind might accept as adequate to support’ ” the conclusion reached by the Authority (Matter of Stork Rest. v Boland, 282 NY 256 , 274). It would, therefore, not have been improper to revoke the license and impose a $1,000 bond claim on that charge alone. It being conceded by petitioner that the evidence sustained the last three charges as well, the penalty imposed on charges 1, 3, 4 and 5 was not an abuse of discretion.

Ill

The $2,250 fine on charge 2 was, however, in excess of the Authority’s jurisdiction and must, therefore, be annulled. Although subdivision 3 of section 17 of the Alcoholic Beverage Control Law empowers the Authority to revoke, cancel or suspend a license or permit for cause, it contains no authority to impose a fine or penalty. Moreover, the provision of section 112 that the bond furnished by a licensee or permittee shall be conditioned for payment of “all fines and penalties which shall accrue” cannot be read to authorize imposition of a fine by the Authority for it must be read in relation to the other sections of the law which almost uniformly use the word “fine” to mean an exaction for a criminal violation imposed by a court (see Alcoholic Beverage Control Law, §§ 65-a, 65-b, 130, subds 1, 1-a, 2, 3). That is, of course, the generally accepted meaning of the word (City of Buffalo v Neubeck, 209 App Div 386 , 388 [“As generally understood in this State, a fine is a sum of money exacted of a person guilty of a crime, the amount of which may be fixed by law or left in the discre

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tion of the court, while a penalty is a sum of money for which the law exacts payment by way of punishment for doing some act which is prohibited, or omitting to do some act which is required to be done”]; accord Village of Lancaster v Richardson, 4 Lans 136 , 140; see, also, American Sur. Co. of N. Y. v Town of Islip, 268 App Div 92 , 96; Matter of Sette v McCambridge, 84 Misc 2d 591 , 593; City of Hudson v Granger, 23 Misc 401 ; Fuller v Redding, 16 Misc 634 , 635; cf. Gurda v Orange County Pub. Div. of Ottaway Newspapers, 56 NY2d 705 , revg on concurring in part and dissenting in part opn below 81 AD2d 120 , 130).

The only contrary suggestions in the law are the use of the word “penalties” in the title of section 130 and the references in sections 91, 92 and 101-aa (subd 9, par b) to “penalties provided for in this chapter” and in section 127 to “penalty * * * it may deem appropriate.” However, a section heading “may not alter or limit the effect of unambiguous language in the body of the statute itself” (Squadrito v Griebsch, 1 NY2d 471 , 475), and statutes which are penal in character should be construed in a “manner not to embrace cases which do not clearly fall within their terms” (People v Benc, 288 NY 318 , 323). There being provisions in the law for “fines” in the generally accepted criminal sense, the use of the word in section 112 must be construed to be limited to such a fine and, therefore, cannot furnish a basis for implying the power in the Authority to impose a fine, as it here attempted to do.

For the foregoing reasons, the judgment of the Appellate Division should be modified, with costs, to annul the $2,250 fine imposed on charge 2 and, as so modified, should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Simons concur.

Judgment modified, with costs to appellant, in accordance with the opinion herein and, as so modified, affirmed.

Cases cited

Consolidated Edison Co. v. National Labor Relations Board 305 US 197 SCOTUS 1938-12-05 p. 90
Stork Restaurant, Inc. v. Boland 282 NY 256 N.Y. 1940-03-05 at 274 p. 90, p. 91, p. 93
Standard Food Products Corp. v. O'Connell 296 NY 52 N.Y. 1946-10-17 p. 90
Stolz v. Board of Regents of the University 4 AD2d 361 N.Y. App. Div. 1957-07-24 p. 90, p. 91
Papoutsis v. State Liquor Authority 32 AD2d 284 N.Y. App. Div. 1969-07-01 p. 90
Gallello v. Ring 36 AD2d 644 N.Y. App. Div. 1971-02-24 p. 90
Mancini v. McLaughlin 54 NY2d 860 N.Y. 1981-10-13 p. 91
Levine v. O'Connell 300 NY 658 N.Y. 1950-02-23 p. 91
Bizarre, Inc. v. State Liquor Authority 29 AD2d 500 N.Y. App. Div. 1968-04-18 p. 91
Bizarre, Inc. v. State Liquor Authority 22 NY2d 721 N.Y. 1968-05-29 p. 91
Humphrey v. State Insurance Fund 298 NY 327 N.Y. 1949-01-13 p. 91
Miller v. Kling 291 NY 65 N.Y. 1943-07-20 p. 91
Avon Bar & Grill, Inc. v. O'Connell 301 NY 150 N.Y. 1950-07-11 p. 91
Claim of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works 304 NY 65 N.Y. 1952-04-17 p. 91
Graham v. Board of Supervisors of Erie County 27 AD2d 902 N.Y. App. Div. 1967-03-30 p. 91
City of Buffalo v. Neubeck 209 App Div 386 N.Y. App. Div. at 388 p. 93
Village of Lancaster v. Richardson 4 Lans 136 N.Y. Sup. Ct. at 140 p. 94
Sette v. McCambridge 84 Misc 2d 591 N.Y. Sup. Ct. 1975-12-24 at 593 p. 94
City of Hudson v. Granger 23 Misc 401 N.Y. Sup. Ct. p. 94
Fuller v. Redding 16 Misc 634 N.Y. Sup. Ct. at 635 p. 94
Gurda v. Orange County Publications Division of Ottaway Newspapers, Inc. 56 NY2d 705 N.Y. 1982-05-06 p. 94
Gurda v. Orange County Publications Division of Ottaway Newspapers, Inc. 81 AD2d 120 N.Y. App. Div. 1981-06-08 at 130 p. 94
Squadrito v. Griebsch 1 NY2d 471 N.Y. 1956-07-11 at 475 p. 94
People v. Benc 288 NY 318 N.Y. 1942-06-11 at 323 p. 94

Statutes and regulations cited

Alcoholic Beverage Control Law p. 91, p. 92, p. 93