Matter of McGillicuddy’s Tap House, Ltd. v New York State Liquor Authority

This Article 78 proceeding was brought about to review a determination of the New York State Liquor Authority finding petitioner McGillicuddy’s Tap House in violation of the Alcoholic Beverage Control Law. Petitioner was charged with permitting a licensed premises to become disorderly following an altercation that occurred in petitioner’s bar. Respondent suspended petitioner’s liquor license for 15 days and imposed a fine of $6,500 which resulted in this Article 78 appeal seeking to annul the determination.

The evidence supporting respondent’s claim that petitioner did not take proper action or allowed the altercation to continue was hearsay and seriously controverted by the testimony of petitioner’s head bouncer, Joseph Santiago. One witness, Marshall Ross, claimed that two altercations occurred and that the individuals involved in the first altercation returned to the bar after being thrown out and resumed the altercation. Ross did not testify at the administrative hearing and therefore was not available for cross-examination. The head bouncer, Santiago, was only aware of one altercation which he responded to promptly by ejecting one group involved and immediately calling the police. The police corroborated this story and vouched for Santiago’s reputation.

Since the only evidence provided by respondent was hearsay and this evidence was seriously controverted by the sworn testimony given on petitioner’s behalf which was subject to cross-examination, the hearsay evidence was not substantial to support respondent’s determination. Without Ross’ testimony, no evidence exists to prove that petitioner was aware of and ignored escalating arguments between patrons or allowed a fight to continue for a long period of time prior to calling the police. Additionally, still photographs taken from a videotape of the bar supports Santiago’s story that the altercation was isolated and brief and not foreseeable.

Accordingly, the Court annulled the determination, without costs, and granted the petition.