Westwind Restaurant, Inc. v. New York State Liquor Authority

Appellate Division of the Supreme Court of New York

Westwind Restaurant, Inc. v. New York State Liquor Authority

89 A.D.2d 508, 452 N.Y.S.2d 54, 1982 N.Y. App. Div. LEXIS 17543

Appellate Division of the Supreme Court of the State of New York·Decided July 1, 1982·Published·Cited by 1 cases

Opinion

Supreme Court, New York County (Price, J.), entered November 2,1981, granting petitioner’s application to the extent of reinstating the liquor license and limiting the fine to $500, unanimously modified, on the law, to grant the petition only to the extent of vacating the penalty imposed by respondent and remanding to the respondent for a hearing at which petitioner shall be given an opportunity to submit evidence in mitigation of penalty, and otherwise affirmed, without costs. We agree with Special Term that the penalty of license cancellation and bond revocation ($1,000 fine) is unduly harsh in light of the “mitigation affidavit which sets forth explanations for the violations and perhaps places them in proper perspective and lack of magnitude”. However, since the authority did not have this affidavit before it when the above sanction was imposed we find it appropriate to remand the matter to the agency for consideration of the mitigating evidence. (Matter of Pell v Board ofEduc., 34 NY2d 222, 234.) Only upon a full record can the agency fix a penalty which is fitting to the gravity of the offense, and thus we are giving it the opportunity to do so. Concur — Murphy, P. J., Carro, Markewich, Lupiano and Bloom, JJ.

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Supreme Court, New York County (Price, J.), entered November 2,1981, granting petitioner’s application to the extent of reinstating the liquor license and limiting the fine to $500, unanimously modified, on the law, to grant the petition only to the extent of vacating the penalty imposed by respondent and remanding to the respondent for a hearing at which petitioner shall be given an opportunity to submit evidence in mitigation of penalty, and otherwise affirmed, without costs. We agree with Special Term that the penalty of license cancellation and bond revocation ($1,000 fine) is unduly harsh in light of the “mitigation affidavit which sets forth explanations for the violations and perhaps places them in proper perspective and lack of magnitude”. However, since the authority did not have this affidavit before it when the above sanction was imposed we find it appropriate to remand the matter to the agency for consideration of the mitigating evidence. (Matter of Pell v Board ofEduc., 34 NY2d 222, 234.) Only upon a full record can the agency fix a penalty which is fitting to the gravity of the offense, and thus we are giving it the opportunity to do so. Concur — Murphy, P. J., Carro, Markewich, Lupiano and Bloom, JJ.

Westwind Restaurant, Inc. v. New York State Liquor Authority, 89 A.D.2d 508, 452 N.Y.S.2d 54, 1982 N.Y. App. Div. LEXIS 17543 (N.Y. Ct. App. 1982).

Pincite

89 A.D.2d 508 (Westwind Restaurant, Inc. v. New York State Liquor Authority) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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