GREGORY STREET PUB INC v. NEW YORK STATE LIQUOR AUTHORITY (1999)

Petitioner commenced this CPLR article 78 proceeding to annul the determination, following a hearing, that the conduct of petitioner's president was of such an improper nature as to warrant revocation, cancellation or suspension of petitioner's license, and imposing a civil penalty of $1,500.   The charge arose after a robber who fired shots at bar patrons was shot to death by an off-duty police officer, who was also a patron.   Petitioner's president arrived on the scene shortly after the police arrived and before the crime scene had been secured or the body removed.   Employees and patrons were still inside the bar.   Petitioner's president was stopped at the door by police when he attempted to enter the premises and was thereafter arrested for obstructing justice and resisting arrest.   The criminal charges were dismissed at the close of the People's case.   Petitioner's president then commenced an action against the City of Rochester and was granted summary judgment on his cause of action for false arrest.

 The charge lodged by respondent was based upon the conduct of petitioner's president “leading to his arrest”, allegedly in violation of 9 NYCRR 53.1(n).   That regulation provides that a license may be revoked, cancelled or suspended for “improper conduct” by an officer of the licensed corporation that “is of such nature that if known to the authority, the authority, in its discretion, could properly deny the issuance of a permit or license or any renewal thereof because of the unsatisfactory character and/or fitness of such person.”   The Administrative Law Judge concluded that it would be “unlikely” that the conduct of petitioner's president would have resulted in the denial of an application for a license, but concluded that it would be in respondent's discretion to deny an application based upon that conduct.   Respondent sustained the charge.

 We annul the determination and grant the petition because the determination is not supported by substantial evidence.   Respondent's finding that petitioner's president was trying “to enter the premises around the body” is belied by the testimony of the arresting officer, the only witness at the hearing, that petitioner's president did not come closer than 10 feet to the body.   We disagree with petitioner that respondent was collaterally estopped from proceeding on the charge by the dismissal of the criminal charges and the granting of summary judgment in favor of petitioner's president on his cause of action for false arrest.   Collateral estoppel does not apply here because there is no identity of issue among the proceedings (see, Kaufman v. Lilly & Co., 65 N.Y.2d 449, 455-456, 492 N.Y.S.2d 584, 482 N.E.2d 63), nor is respondent sufficiently related to the parties in the other actions that it may be deemed to have had a full and fair opportunity to litigate the issue (see, Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 668-669, 657 N.Y.S.2d 581, 679 N.E.2d 1061).   We conclude, however, that in the record of the hearing there is not such relevant evidence that the conduct of petitioner's president was improper “ ‘ “as a reasonable mind might accept as adequate to support a conclusion” ’ ” (Matter of 330 Rest. Corp. v. State Liq. Auth., 26 N.Y.2d 375, 378, 310 N.Y.S.2d 487, 258 N.E.2d 906, quoting Matter of Stork Rest. v. Boland, 282 N.Y. 256, 274, 26 N.E.2d 247;  see also, Matter of S & R Lake Lounge v. New York State Liq. Auth., 87 N.Y.2d 206, 209, 638 N.Y.S.2d 575, 661 N.E.2d 1355).

Determination unanimously annulled on the law without costs and petition granted.

MEMORANDUM: