| Matter of Friendly Convenience, Inc. v New York City Dept. ofConsumer Affairs |
| 2010 NY Slip Op 02485 [71 AD3d 577] |
| March 25, 2010 |
| Appellate Division, First Department |
| In the Matter of Friendly Convenience, Inc.,Petitioner, v The New York City Department of Consumer Affairs et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Larry A. Sonnenshein of counsel),for respondents.
Determination of respondents, dated June 27, 2008, after a hearing, that petitioner had soldcigarettes to a minor, imposing a fine of $2,050 and assigning two points to petitioner's retaildealer's record, unanimously confirmed, the petition denied, and the proceeding brought pursuantto CPLR article 78 (transferred to this Court by order of Supreme Court, New York County[Alice Schlesinger, J.], entered March 31, 2009) dismissed, without costs.
The administrative law judge (ALJ) exercised his discretion in admitting into evidence thecigarette pack allegedly sold to a minor, which had not been inspected or analyzed, as well as aredacted copy of the purchaser's birth certificate that lacked a raised seal. The Rules of theDepartment of Consumer Affairs allow introduction of "relevant evidence" at an administrativehearing "without regard to the technical or formal rules or laws of evidence in effect in the courtsof the State of New York" (6 RCNY 6-35 [b]). The ALJ properly admitted these items becausethey were material and relevant, and not unreliable.
Petitioner's request to subpoena the purchaser for cross-examination was correctly denied.There is only "a limited right to cross-examine adverse witnesses in administrative proceedings"(Matter of Gordon v Brown, 84 NY2d 574, 578 [1994]). The ALJ properly determinedthat cross-examination in this instance was neither necessary nor required. Petitioner's dueprocess rights were protected by, among other things, its opportunity to confront the inspectorsabout the purchaser's age and the reliability of his birth certificate (see generally id. at579).
Petitioner was in violation of the City's Tobacco Product Regulation Act (AdministrativeCode of City of NY § 17-620) for selling a tobacco product to a person under 18 years ofage. Because section 17-620 is a strict liability statute, it is no defense that the employee whosold the cigarettes was not acting within the scope of his authority. Since it was also determinedthat petitioner violated the State's statutory prohibition (Public Health Law § 1399-cc [1]),and the employee who actually sold the cigarettes was unable to produce a valid certificate of[*2]completion from a state-certified tobacco sales trainingprogram, the ALJ properly assigned two points to petitioner's record (see §1399-ee [3] [a]).[FN*]Concur—Tom, J.P., Andrias, Sweeny, Nardelli and Renwick, JJ.
Footnote *: The ALJ erroneously referred toa violation of subdivision (1) of section 1399-cc, evidently misled by an erroneous reference tothat effect in section 1399-ee (3) (a).