Mei Chi Liquor Corp. v. New York State Liquor Authority

195 A.D.2d 270, 599 N.Y.S.2d 587, 1993 N.Y. App. Div. LEXIS 6858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1993
• Status: Published

Opinions

Determination of respondent New York State Liquor Authority, dated October 23, 1992, which imposed a penalty of revocation of petitioner Mei Chi Liquor Corporation’s off-premises liquor license and a $1,000 bond forfeiture, annulled, on the law, to the extent of vacating the penalty and remanding the matter to respondent for reconsideration and imposition of an appropriate penalty, and otherwise confirmed, without costs.

Lina Fang, president of petitioner Mei Chi Liquor Corporation, owns and operates a liquor store in Brooklyn, New York. She was arrested in Elizabeth, New Jersey on November 14, 1989 after purchasing $4,195.89 in liquor from a retailer. She was charged with the transportation of an excessive amount of alcohol without obtaining a special permit for which the fee is $5 (NJ Rev Stat § 33:1-2) and the liquor confiscated. She later signed a stipulation and paid a fine of $250. The charges were eventually dismissed.

On October 30, 1990, Ms. Fang and her accountant were interviewed by agents of respondent and her books reviewed. She was questioned about the incident and subsequently charged with receiving alcoholic beverages from a person not duly licensed within this State by respondent to sell them. At a hearing, the report of an agent, no longer employed by respondent, who conducted the October 30 interview was introduced, which asserted that Ms. Fang had stated the liquor was purchased for use in connection with her business. Ms. Fang maintains that she told the agents that the liquor was for her personal use at a Christmas party. This statement is corroborated by the affidavit of the accountant, annexed to her petition. The report itself refers to the interview of a New Jersey State Police Inspector who informed the agent that the same assertion is contained in statements filed in the New Jersey proceeding.

While we find the evidence sufficient to sustain the technical violation of the regulation, the penalty imposed is excessive. Respondent does not dispute that Ms. Fang has never been charged with any other violation by respondent or any other agency, and the penalty effectively deprives her of her livelihood. This penalty is so disproportionate as to shock the sense of fairness, greatly exceeding penalties imposed for more substantive violations (e.g, Matter of Cos Dei San v New York State Liq. Auth., 147 AD2d 370, lv denied 74 NY2d 611 [30-day suspension and $1,000 bond forfeiture for technical violation of gambling rule vacated]; Matter of Show Boat v State Liq. Auth., 33 AD2d 954, affd 27 NY2d 676 [cancellation for trafficking in narcotics modified to three-month suspension]). Consequently, we remand to respondent solely for reconsideration of the penalty imposed. Concur—Wallach, Kupferman and Rubin, JJ.