
    The People of the State of New York, Plaintiff, v. Elizabeth Ochel, Defendant.
    Criminal Court of the City of New York, Bronx County,
    September 10, 1963.
    
      Isidore Dollinger, District Attorney, for plaintiff. Leo Goodwin for defendant.
   J. Howard Rossbach, J.

Defendant, the wife of a grocer, is charged with a violation of section 105-a of the Alcoholic Beverage 'Control Law. This section provides: “No person, firm or corporation holding any license or permit issued under this chapter shall sell, offer for sale or give away beer at retail on Sunday between three antemeridian and one postmeridian. Persons, firms or corporations holding licenses and/or permits issued under the provisions of the alcoholic beverage control law permitting the sale of beer at retail, may sell such beverages at retail on Sunday before three antemeridian and after one postmeridian for off-premises consumption”.

On the trial it appeared that defendant’s husband owned the store and was the licensee to sell beer. On Sunday, June 12, 1963, at 12:20 p.m., defendant made an ill-advised sale of six cans of beer to the officer in plain clothes and was served a summons therefor. Her husband, the licensee, who was standing near her, was not served.

Defendant’s counsel urges that defendant cannot be convicted of a violation of section 105-a on the ground that that section applies only to licensees. It seems clear that the Legislature had two objectives in enacting section 105-a:

1. Prohibit all sales of beer for off-premises consumption between 3:00 a.m. and 1:00 p.m. on Sunday.

2. Permit such sales by licensees before 3:00 a.m. and after 1:00 p.m.

Unfortunately, some language from the permissive part of the statute was also placed in the prohibitory part. Consequently, as the statute now reads, the prohibition is limited to licensees. This is a statute enforcible by criminal sanctions. Its clear words of restriction may not be ignored by any surmise as to legislative intent. If the Legislature wishes to remove the restrictive category, amendment is simple. Defendant is acquitted.  