Opinion
February 23, 2000
Determination of respondent New York State Liquor Authority dated on or about March 5, 1999, revoking petitioner's license and forfeiting its license bond in the sum of $1,000, unanimously confirmed, the petition denied and the proceeding, brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [William Wetzel, J.], entered May 5, 1999), dismissed, without costs.
Francis R. Buscemi, for Petitioner.
Scott A. Weiner, for Respondent.
ROSENBERGER, J.P., NARDELLI, MAZZARELLI, WALLACH, RUBIN, JJ.
Respondent authority's finding that petitioner had ceased to operate its premises within the contemplation of its off-premises beer license was supported by substantial evidence, including testimony as to the quantity of beer on display in the store, and invoices of a wholesale beer distributor reflecting delivery of 243 cases of beer to petitioner in a one-month period, the value of which, at 50 cents a beer, exceeded 25 percent of the value of the total store inventory, the ceiling placed by respondent upon petitioner's beer inventory as a condition of issuing petitioner's off-premises beer license (see, Matter of Stork Rest., Inc. v. Boland, 282 N.Y. 256). Respondent, in promulgating the inventory requirement, did not exceed its powers since such requirement was neither irrational nor unreasonable (see, Matter of Best v. New York State Liq. Auth., 59 N.Y.2d 906, reversing 89 A.D.2d 893 for the reasons stated in the dissenting opinion of Lazer, J., at89 A.D.2d 893-894). Finally, the penalty imposed was not so disproportionate to the offense committed as to be "shocking to one's sense of fairness" (Matter of Pell v. Bd. of Educ., 34 N.Y.2d 222, 233).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.