IN RE: the CONTINENTAL ROOM (2008)

 Petitioner commenced this CPLR article 78 proceeding seeking to annul that part of the determination finding that it violated Alcoholic Beverage Control Law § 65(1) by making two unlawful sales of alcoholic beverages to minors.   Contrary to the contention of petitioner, we conclude that the determination with respect to one of the two violations, i.e., to the minor in possession of the fraudulent New York driver's license, is supported by substantial evidence (see Matter of MJM Royal v. New York State Liq. Auth., Div. of Alcoholic Beverage Control, 6 A.D.3d 1150, 1151, 775 N.Y.S.2d 664;  Matter of Russ v. Duffy, 180 A.D.2d 1008, 580 N.Y.S.2d 583;  see generally 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183).   Petitioner failed to establish as an affirmative defense that its employees reasonably relied upon the New York driver's license before selling, delivering, or giving away alcoholic beverages to the minor (see Alcoholic Beverage Control Law § 65 [4] ).   Indeed, the record establishes that the driver's license was obviously fraudulent.   Contrary to petitioner's further contention, respondent was not required to produce the original New York driver's license in order to establish a violation of Alcoholic Beverage Control Law § 65(1) because the photocopy that it introduced in evidence was sufficient (see State Administrative Procedure Act § 306[2] ).   Further, the Administrative Law Judge did not abuse his discretion in denying petitioner's request for a continuance of the hearing in order to enable petitioner to subpoena the original New York driver's license.   Petitioner failed to seek a judicial subpoena in order to obtain that driver's license or otherwise request its production prior to the hearing (see generally Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646).

 We further conclude, however, that the determination with respect to the second of the two violations, i.e., the minor M.C.S., who was in possession of a fraudulent Virginia driver's license, is not supported by substantial evidence (see generally 300 Gramatan Ave. Assocs., 45 N.Y.2d at 181-182, 408 N.Y.S.2d 54, 379 N.E.2d 1183), and we therefore modify the determination accordingly.   We agree with petitioner that it established as an affirmative defense that its employees reasonably relied upon that driver's license before selling, delivering, or giving away alcoholic beverages to the minor (see Alcoholic Beverage Control Law § 65[4];  Matter of Murray v. Division of Alcoholic Beverage Control, 272 A.D.2d 962, 708 N.Y.S.2d 783;  Matter of Vitagliano v. State of N.Y. Liq. Auth., 174 A.D.2d 624, 625, 571 N.Y.S.2d 323).   The police officer who initially approached the minor inside petitioner's establishment testified at the hearing that the photograph on the Virginia driver's license appeared to be that of the minor and that the driver's license contained a hologram.   He further testified that the driver's license appeared to be authentic, and he was unable to state why he believed that it was fraudulent.   Inasmuch as respondent imposed a single penalty and the record does not establish any relation between the violations and the penalty, we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violations (see Murray, 272 A.D.2d 962, 708 N.Y.S.2d 783).

It is hereby ORDERED that the determination is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated Alcoholic Beverage Control Law § 65(1) with respect to minor M.C.S. and by vacating the penalty and as modified the determination is confirmed without costs, and the matter is remitted to respondent for further proceedings.

MEMORANDUM: