Beer Garden v. State Liquor Authority

590 N.E.2d 1193 (1992)


D issued petitioner P, a license for the on-premises sale of alcoholic beverages. In December 1988, a proceeding to cancel or revoke P's license was initiated. In March 1989, D served P with notice of a proceeding to suspend its license, charging that P had two months earlier sold alcoholic beverages to a minor.  The notice specified a 30-day suspension as the maximum possible penalty. A third notice was served in  October 1989, informing D that based on the same 'focal point' allegation made in the first notice, an interview would be scheduled in connection with renewal of its license for 1989-1992. All three notices were issued  by 'Sharon L. Tillman, Counsel to the Authority.' Under D regulations, an ALJ is authorized to make findings as to whether the evidence sustained the charges, and may also recommend a penalty. Between November 1989 and April 1990, the ALJ conducted hearings on the revocation and suspension proceedings. The ALJ found the charges sustained factually and, without recommendation as to penalty, he referred the matter to the Commissioners for final determination.  On June 30, 1990, Tillman left her position as Counsel to become a D Commissioner. On August 1, 1990, the Commissioners voted to combine the first and second proceedings, adopt the ALJ's findings, and sustain the charges, imposing a penalty of revocation and $1,000 bond forfeiture. The Commissioners also sustained the ALJ's findings in the nonrenewal proceeding and directed entry of a nonrenewal order. Three of the five Commissioners, including Commissioner Tillman, concurred in the dispositions; two voted to adjourn the matter for a week. The matter was reconsidered one week later at the request of P's attorney, who had been unable to attend the earlier session, and at that time he asked that Commissioner Tillman recuse herself based on her role as Counsel during the hearing process. She refused. Upon reconsideration, the three Commissioners adhered to their original determination, and the two who had voted to defer the matter voted to suspend, rather than revoke, P's license. P then commenced the present CPLR article 78 proceeding.