        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

260
TP 10-02213
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF COMEDY PLAYHOUSE, LLC,
PETITIONER,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE LIQUOR AUTHORITY, RESPONDENT.


MCCLUSKY LAW FIRM, LLC, ADAMS (JAMES P. MCCLUSKY OF COUNSEL), FOR
PETITIONER.

JEAN MARIE CHO, NEW YORK STATE LIQUOR AUTHORITY, ALBANY (MARK D.
FRERING OF COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Jefferson County [Hugh A.
Gilbert, J.], entered October 7, 2010) to review a determination of
respondent. The determination sustained a charge that petitioner had
violated Alcoholic Beverage Control Law § 128 and imposed a civil
penalty.

     It is hereby ORDERED that the determination is unanimously
annulled on the law without costs, the petition is granted and the
charge against petitioner is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination that it violated Alcoholic Beverage
Control Law § 128. Although this proceeding was improperly
transferred to this Court pursuant to CPLR 7804 (g) because no
substantial evidence question is raised herein, we nevertheless
consider the merits in the interest of judicial economy (see Matter of
La Rocco v Goord, 19 AD3d 1073; Matter of CVS Discount Liq. v New York
State Liq. Auth., 207 AD2d 891, 892).

     Petitioner is owned and operated by Michael Kinnie, who holds a
license from respondent for the sale of liquor on petitioner’s
premises in the Village of Sackets Harbor (Village). Approximately
three months after Kinnie was elected mayor of the Village, respondent
charged petitioner with violating Alcoholic Beverage Control Law §
128, alleging that Kinnie was “assigned duties directly relating to
the operation or management of the police department” in contravention
of the statute. After a hearing, the Administrative Law Judge (ALJ)
concluded that respondent failed to sustain the charge. Respondent
directed a review of the ALJ’s findings and alternate findings were
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                                                         TP 10-02213

issued. The “reviewer” for respondent concluded, inter alia, that
Alcoholic Beverage Control Law § 128 (2) precluded Kinnie from holding
a liquor license because his duties included the operation or
management of the police department. Respondent adopted the alternate
findings, sustained the charge against petitioner and imposed a civil
penalty of $5,000.

     We agree with petitioner that respondent’s determination
conflicts with the clear language of Alcoholic Beverage Control Law §
128 (see generally Matter of Destiny USA Dev., LLC v New York State
Dept. of Envtl. Conservation, 63 AD3d 1568, 1569, lv denied 14 NY3d
703). Pursuant to that statute, “it shall be unlawful for any police
commissioner, police inspector, captain, sergeant, roundsman,
patrolman or other police official or subordinate of any police
department in the state, to be either directly or indirectly
interested in the manufacture or sale of alcoholic beverages or to
offer for sale, or recommend to any licensee any alcoholic beverages”
(§ 128 [1]). The statute further provides that “[n]o elective village
officer shall be subject to the limitations set forth in subdivision
one of . . . section [128] unless such elective village officer shall
be assigned duties directly relating to the operation or management of
the police department” (§ 128 [2]). Here, respondent determined that
Kinnie was in violation of section 128 (2) because his duties as
Village Mayor included the operation and management of the police
department. That was error. The relevant question is whether Kinnie,
as the Village Mayor, falls within the class of persons set forth in
Alcoholic Beverage Control Law § 128 (1), i.e., whether he is a
“police commissioner, police inspector, captain, sergeant, roundsman,
patrolman or other police official or subordinate of any police
department in the state . . . .” We conclude that he does not fall
within that class of persons.

     In support of its determination, respondent relied upon Village
Law former § 188, pursuant to which “[t]he mayor [of a village was an]
. . . ex officio member[] of the police department[] and [had] all the
powers conferred upon policemen by [former] article [seven of the
Village Law]” (see Harrell v Goldin, 124 NYS2d 627, 629-630; 1970 Ops
Atty Gen 8). When the Village Law was recodified in 1972, however,
the Legislature repealed section 188 and enacted, inter alia, section
4-400 (see L 1972, ch 892, §§ 1, 3). Pursuant to the recodified
Village Law, the village mayor is no longer an ex officio member of
the police department nor vested with all the powers conferred upon
the police (see § 4-400; see also 1974 Ops Atty Gen 7).

     Indeed, in 1974, shortly after the recodification of the Village
Law, the Attorney General opined that a village mayor, if otherwise
qualified, was eligible to hold a liquor license (see 1974 Ops Atty
Gen 7). The Attorney General reasoned that the newly-amended Village
Law “removed all police status from the mayor . . . of a village” and
that the “administrative responsibilities” set forth in Village Law §
4-400 (1) (b) and (e) did not “fall within the purview of Alcoholic
Beverage Control Law[] § 128” (id. at 8). We find that reasoning
persuasive, particularly in light of the fact that it was “a
contemporaneous interpretation” of the newly-enacted provisions of the
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                                                         TP 10-02213

Village Law (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d
151, 158). We thus conclude that Kinnie was not a “police
commissioner . . . or other police official” within the meaning of
Alcoholic Beverage Control Law § 128 (1) and that he therefore was not
prohibited from holding a liquor license while serving as Village
Mayor (see 1974 Ops Atty Gen 7).

     We therefore annul the determination, grant the petition and
dismiss the charge against petitioner. In light of our conclusion, we
need not address petitioner’s further contention that the civil
penalty is shocking to one’s sense of fairness.




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
