IN RE: K & Z PLACE (1998)

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Liquor Authority, dated October 29, 1996, which, after a hearing, found that the petitioner violated Alcoholic Beverage Control Law § 65(1), and, inter alia, imposed a civil penalty in the sum of $3,500.

ADJUDGED that the petition is granted, on the law, with costs, and the determination that the petitioner violated Alcoholic Beverage Control Law § 65(1) is annulled.

The petitioner operates a snack bar at 199 Russell Street, Brooklyn, where food and beer are sold at retail.   An employee was issued a summons charging a violation of Alcoholic Beverage Control Law § 65(1), which prohibits the sale or delivery of any alcoholic beverage to a person actually or apparently under twenty-one years of age.   The criminal proceeding was dismissed on October 23, 1995.   At an administrative hearing on the violation, a police officer testified that he was accompanied by an underaged police cadet who was served an alcoholic beverage by an employee of the petitioner.   The cadet's date of birth was July 24, 1974, making him 20 years and 8 months old at the time of the incident.   The officer, the sole witness to testify at the hearing, could not identify the beverage, its type or brand, and did not taste it.   The beverage was not tested to determine its content.   The hearing officer refused a continuance so that the undercover cadet could be produced.   Under these circumstances, there was a complete lack of evidence to support the determination that the petitioner violated the statute (see, CPLR 7803[4];  300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183).

In light of our determination, we need not address the petitioner's remaining contentions.

MEMORANDUM BY THE COURT.