Opinion
November 6, 1972
Proceeding pursuant to article 78 of the CPLR to annul two determinations of respondent State Liquor Authority, both effective February 29, 1972, which, after a hearing, respectively canceled petitioners' special on-premises liquor licenses. The determination as to petitioner Shangri La Lounge, Inc. also made demand on said petitioner's $1,000 bond. Petition granted to the extent of annulling the determination which canceled the license of petitioner Starlite Cafe, Inc., proceeding otherwise dismissed on the merits and determination as to petitioner Shangri La Lounge, Inc., confirmed, without costs. The Authority's determination finding petitioner Shangri La Lounge, Inc. guilty of violating (1) section 111 Alco. Bev. Cont. of the Alcoholic Beverage Control Law and the terms of the license issued it in permitting one Paul Scalabrino, a person not mentioned in the license, to avail himself of the license and (2) subdivision 12 of section 106 Alco. Bev. Cont. of the Alcoholic Beverage Control Law in failing to keep accurate books and records of the business conducted on the licensed premises is supported by substantial evidence. However, the offense charged to petitioner Starlite Cafe, Inc., is merely derivative in nature, being based solely upon the offenses committed at the Shangri La premises and the fact that the officers of the two corporate licenses are identical. In our view, cancellation of Shangri La's license, on whose premises the offense occurred, should suffice in this case and the additional cancellation of Starlite's license constitutes excessive punishment (see Matter of Mojica v. State Liq. Auth., 29 A.D.2d 564). Hopkins, Acting P.J., Martuscello and Gulotta, JJ., concur; Munder and Benjamin, JJ., concur in the dismissal of the proceeding on the merits as to petitioner Shangri La Lounge, Inc., and the confirmation of the determination as to said petitioner, but otherwise dissent and vote to dismiss the proceeding as to petitioner Starlite Cafe, Inc., on the merits and to confirm the determination as to the latter petitioner, with the following memorandum: In our opinion, the proof adduced substantially supported the findings and conclusions of respondent State Liquor Authority as to both petitioners.