Matter of Zinner v. New York State Liquor Authority, 24 N.Y.2d 230 (1969)
A liquor licensee cannot be held to have “suffered or permitted” premises to become disorderly based on a single, isolated, and surreptitious act by an employee if the licensee had no knowledge or opportunity to acquire knowledge of the act.
Summary
Zinner, a restaurant liquor licensee, faced license cancellation after an employee enticed an 8-year-old boy into the bathroom and acted indecently with him. The New York State Liquor Authority (SLA) argued Zinner violated Alcoholic Beverage Control Law §106(6) by suffering or permitting the premises to become disorderly. The Court of Appeals reversed the SLA’s determination, holding that a single, concealed act, unrelated to the employer’s business, and without the licensee’s knowledge or opportunity for knowledge, does not constitute “suffering or permitting” the premises to become disorderly. The court emphasized the lack of continuity or permanence in the disorderly condition.
Facts
An employee of Zinner’s restaurant-bowling alley lured an 8-year-old boy into a second-floor bathroom and committed a lewd act in exchange for a dollar. The incident occurred several hours before the bar opened to the public. The employee, Murray, testified to the act. The licensee’s president, Zinner, testified he was on the premises working in the office but did not see the boy enter. The employee had no prior history of misconduct.
Procedural History
The State Liquor Authority (SLA) canceled Zinner’s restaurant liquor license and imposed a $500 bond claim. The Appellate Division unanimously affirmed the finding of a violation but modified the penalty to a 15-day suspension and a $150 bond forfeiture, citing the licensee’s long record of compliance. Zinner appealed to the New York Court of Appeals, and the SLA cross-appealed, seeking reinstatement of the original penalty.
Issue(s)
Whether the commission of a single, isolated, and surreptitious illegal act by an employee, under circumstances where the licensee could not with reasonable diligence acquire knowledge, constitutes “suffering or permitting” the licensed premises to become disorderly within the meaning of Alcoholic Beverage Control Law §106(6).
Holding
No, because a single, concealed act, unrelated to the employer’s business, and without the licensee’s knowledge or opportunity for knowledge, does not establish that the licensee should have known that a disorderly condition prevailed. The court emphasized that “sufferance…implies knowledge or the opportunity through reasonable diligence to acquire knowledge.”
Court’s Reasoning
The court distinguished the case from People ex rel. Price v. Sheffield Farms Co., 225 N.Y. 25, where the employer was held responsible for the continuous employment of a child in violation of labor laws. In Price, the employer had the opportunity to know about the violation. The court quoted Matter of Migliaccio v. O’Connell, 307 N.Y. 566, emphasizing that substantial evidence of disorderliness, beyond a single occurrence the licensee may not have been aware of, is required to establish constructive knowledge. Here, the employee’s act was a single, concealed incident, unconnected to his duties or the business itself. The licensee had no reason to suspect the employee’s behavior, and no amount of supervision could practically have prevented the crime. The court stated, “Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence”. Since the act was not continuous, and there was no way for the owner to know about the possibility of the act, it was error to hold the licensee responsible. The court concluded that the petitioner did not permit or suffer the premises to become disorderly within the meaning of the statute.