Vicky's Grocery Inc. v. New York State Liquor Authority

213 A.D.2d 206, 623 N.Y.S.2d 582

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1995
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Stephen Crane, J.), entered February 7, 1994, which granted the within CPLR article 78 petition to the extent of annulling the penalty imposed by the State Liquor Authority revoking petitioner’s grocery beer license and imposing a $1,000 bond forfeiture, and remanding to respondent to fix an appropriate penalty short of revocation, unanimously affirmed, without costs. Leave to appeal to this Court granted sua sponte.

At issue on this appeal is whether the penalty imposed by the respondent for selling alcohol to two underage persons, petitioner’s third such offense, was so shockingly disproportionate to the offense as to amount to an abuse of discretion (Matter of Pell v Board of Educ., 34 NY2d 222). Under the circumstances of this case, where the two charged incidents occurred fourteen months apart, the licensee, who invested his lifetime savings in the establishment, was not personally involved in the sales, the offending employees were discharged and no intent to violate the law has been shown, the penalty of revocation of the petitioner’s license adopted by a bare 3 to 2 vote of the Authority’s members constituted an abuse of discretion. (Matter of Northwood Foods Corp. v New York State Liq. Auth., 208 AD2d 633; Matter of Vitagliano v State of N. Y. Liq. Auth., 149 AD2d 426, lv denied 74 NY2d 612.) We note moreover that prior to the hearing the Authority itself advised petitioner that it would accept a 60-day suspension and $1,000 bond forfeiture to dispose of the charges. Concur—Ellerin, J. P., Rubin, Ross, Nardelli and Tom, JJ.