New York Criminal Lawyer Blog
A man filed a legal action to discharge him against a complaint for failure to state a cause of action. It involves alcoholic beverage control law concerning underage drinking. The man states that there is no issue of fact by which he may be held liable and that no legitimate cause of action has been set forth in the complaint. The corporation, who stands as the opponent, opposed the legal action, stating that they claim a cognizable common law cause of action, and cross-move to modify their answer.
According to a New York Crimal Lawyer, said the bar (under the said corporation), who filed a complaint against the man is licensed to offer alcoholic beverages, to sell and for consumption on its premises by customers over the age of 21 years. The man at the time of the incident was a 19-year-old student. He was stopped by the police early in the morning while walking back to campus in an intoxicated state. He was brought to the police station on an unrelated matter and told the police officers that he was underage and had been drinking at the tavern earlier in the evening. He further told that he had gained access to that place by use of a false driver’s license. He purchased and was served alcoholic beverages.
The police officers then accompanied him to the bar, where he identified the employee, who used to be the longtime president of the corporation as well as the owner of the bar, as the person who had served him the alcoholic beverages. The president was charged with the penal law crime of unlawfully dealing with a child for allegedly selling alcoholic beverages. In addition, alcoholic beverage administrative proceedings were commenced against the company for the revocation of its liquor license because of the alleged sales of alcoholic beverages to several other underage college students.
A New York Criminal Lawyer said that the man was never criminally charged for his actions and was granted immunity from trial by the district attorney in exchange for his testimony against the president in the proceedings and he must testify accordingly. Eventually, the president was successful in defending himself in both the criminal and administrative proceedings and company retained its liquor license. All parties set an oral argument that there are no pending proceedings.
The corporation initiated its action by summons and complaint and stated that the man trespassed the business premises and unlawfully entered the premises by presenting fraudulent identification. For their second cause of action, they stated that the man fraudulently and intentionally deceived the president by his actions and that they justifiably relied on the man’s presentation of false identification. The corporation seeks for damages on each of their first and second causes of action claiming that as a direct result of the man’s trespass and fraud, they suffered investigation and possible suspension, cancellation and revocation of liquor license, suffered charges and trial, lost profits and incurred unnecessary legal expenses.
In the man’s legal action, he stated that discharge of complaint is appropriate in his favor because the corporation’s lawsuit constitutes a strategic lawsuit against public participation. Violations of the relevant provisions of the alcoholic beverage control law provides the corporation with no basis for a civil cause of action and that public policy prohibit the sort of civil suit as against an adverse witness in a trial and as against an underage person who the state legislature was trying to protect by enacting such regulatory laws.
In opposition to the man’s motion for discharge of complaint, the corporation alleges that the instant action is not a strategic lawsuit against public participation, but, rather, a legitimate legal proceeding which has a valid basis in fact and law. The purpose of which is to hold accountable the man who engaged in unlawful and fraudulent conduct for his own benefit and amusement. They further state that the intent is not to punish or discourage individuals who cooperate in the trial. The court said there were no drug possession laws involved with the case.
The corporation also submits an affidavit of the Executive Director of the company’s association and two affidavits of the president. The director testifies in his affidavit that there is a significant problem among the association’s members with the enforcement of the legal drinking age because of false identifications presented by underage drinkers. The director also state that the recent amendments of the alcoholic beverage law has shown an intent to sanction underage individuals who acquire alcoholic beverages by the use of false identification and that public policy supports the continuation of this form of legal action to sanction such underage drinkers.
The first affidavit of the president states that the district law pertaining to the underage drinking age is selectively and inequitably enforced. The second of his affidavits states that at the time of the incident, the company restricted access to individuals over the age of 21 years and who presented documentary proof of their age; and, that any underage on the premises were there without the knowledge or permission of the owners. The corporation also alleges that through the incorporation of different facts, the revised complaint will be sufficient to overcome the man’s motion to dismiss for failure to state a cause of action.
The underage man testified in exchange for immunity against trial proceedings. Based on records, such proceedings cannot be said to have been an action involving public petition and participation as such is considered within the strategic lawsuit against public participation subsections. The proceedings were initiated solely at the discretion of the district attorney and had no direct effect on company’s license. For these reasons, the part of the man’s motion which seeks to dismiss the president’s complaint as a strategic lawsuit against public participation is denied.
The corporation states, however, despite such repeated statements of the clear intent of the government to place the duty of the burden of underage drinking laws on the vendor of alcohol, the strict liability is no longer applicable in light of alcoholic beverage control law, which allows the licensed vendor an affirmative defense in the proceeding that the underage customers had produced a false identification and that the alcohol was sold in reliance upon such identification, and which makes it a violation for a person under the age of 21 years to present a false identification for the purpose of attempting to purchase an alcoholic beverage. The corporation submits that these changes in the act of support for their argument that such civil right of action, as is presented, impliedly exists within the law or that the plaintiffs, otherwise, should be allowed to proceed by way of a common law on trespass or fraudulent misrepresentation action as is pled in the complaint. However, the provisions are misinterpreted as a change or shift in public policy, rather than as a calculated legislative adaptation to the realities of the challenges of monitoring underage drinking and request the court to step outside of its judicial interpretive function and create a previously unrecognized cause of action based upon public policy arguments. The corporation correctly recognizes in its supporting papers that the presentation of false identification by underage persons to obtain alcoholic beverages is a prevalent problem.
Accordingly, the underage man’s motion to discharge complaint against him is granted and the corporation’s motion to modify their complaint is denied.
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