Citation Numbers: 34 A.D.2d 521
Filed Date: 3/10/1970
Status: Precedential
Modified Date: 1/12/2022
Determination of respondent Authority, dated May 2, 1968, suspending petitioner’s restaurant liquor license for 10 days for permitting gambling on the licensed premises, annulled, on the law, without costs and without disbursements. Respondent’s Deputy Commissioner, who had heard all the evidence adduced at the hearing upon the charges against petitioner, reported, analyzing the evidence with care, and stating in detail the reasons for his conclusion, that such charges had not been sustained. His findings were, we believe, well founded, and there is no substantial evidence to sustain respondent’s rejection of the hearing officer’s report — not unanimously, we note—without stating any reason and without substitute findings. The record of the proceedings provides no basis, except through speculation and suspicion, founded upon guilt by association, for an inference that petitioner either participated in the gambling activity charged or had sufficient knowledge thereof to support a conclusion that the premises were inadequately supervised. Concur — Eager, J. F., Markewich and Nunez, JJ.; McNally, J., dissents in the following memorandum: I dissent and vote to confirm the determination. The testimony of the police officers established the existence of gambling activity on the licensed premises. Observations of gambling activity involving the cook, John Danzo, were made on two separate occasions; the actual placing of bets by three patrons with another patron were overheard by a police officer; and a bag containing slips of horses scheduled to run at race tracks that day and unsold football pools were found on the premises on September 29, 1967, a few inches from where John Danzo was standing. Petitioner’s officer, Nicholas Danzo, brother of John Danzo, denied the existence or knowledge of gambling. However, the evidence indicates a