Summary
determining that revocation of liquor license was an excessive penalty, even though it was petitioner's third violation of the ABC Law
Summary of this case from Joseph Paul Winery Inc. v. StateOpinion
October 11, 1994
Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the determination with respect to the penalty imposed is annulled, the determination is otherwise confirmed, the proceeding is otherwise dismissed, and the matter is remitted to the respondent New York State Liquor Authority for the imposition of a new penalty not to exceed (1) a $1,000 bond forfeiture, and (2) a suspension of the petitioner's liquor license for not more than 45 days.
Contrary to the petitioner's contention, there was substantial evidence supporting the respondent's determination that the petitioner sold a can of beer to an underage, undercover police officer (see, Matter of Sue's Rendezvous v. New York State Liq. Auth., 177 A.D.2d 273). However, we find that the penalty imposed, specifically the revocation of the petitioner's off-premises liquor license, is excessive under the circumstances of this case (see, Matter of We Rest. v. New York State Liq. Auth., 175 A.D.2d 165; Matter of Vitagliano v. State of N.Y. Liq. Auth., 149 A.D.2d 426; see also, Matter of Roc's Z-Bar v. State of N.Y. Liq. Auth., 189 A.D.2d 1077; Matter of Larowe v. New York State Liq. Auth., 170 A.D.2d 905; Matter of Leewood Beverage Ctr. v. State Liq. Auth., 139 A.D.2d 649). In light of the fact that this is the petitioner's third violation of the Alcoholic Beverage Control Law a significant penalty is not unwarranted. However, revocation of the petitioner's license is. Accordingly, the penalty is annulled and the matter is remitted to the respondent for the imposition of a new penalty not to exceed a license suspension of 45 days and a bond forfeiture. Miller, J.P., Joy, Altman and Goldstein, JJ., concur.