Norwood Pub, Inc. v. State Liquor Authority , 535 N.Y.S.2d 701 ( 1988 )

— Order of the Supreme Court, Bronx County (Jack Turret, J.), entered on July 8, 1987, which granted petitioner’s application pursuant to CPLR article 78 to the extent of finding the determination of respondent State Liquor Authority directing the forfeiture of petitioner’s $1,000 compliance bond to be excessive and remanding the matter to the State Liquor Authority for imposition of a new penalty, is unanimously reversed on the law and the penalty imposed by respondent reinstated, without costs or disbursements.

Petitioner Norwood Pub, Inc. was found guilty by respondent State Liquor Authority of having, on February 19, 1985, suffered or permitted gambling on its licensed premises in violation of subdivision (6) of section 106 of the Alcoholic Beverage Control Law. Specifically, petitioner had been discovered by one of respondent’s investigators to have a Joker Poker machine operating on its premises. The only issue involved here is whether the penalty imposed by the State Liquor Authority — a 10-day deferred suspension of petitioner’s liquor license plus a $1,000 bond forfeiture — is a reasonable exercise of its discretion. In the view of the Supreme Court, the administrative determination is excessive to the extent that it requires forfeiture of petitioner’s $1,000 compliance bond, and "the penalty should have been limited to a suspension of petitioner’s license for a period of not more than ten days, deferred, and removal of the machine.” We disagree.

It is undisputed that a Joker Poker machine is a gambling device prohibited under Alcoholic Beverage Control Law § 106 (6) (Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791). In Matter ofMNDN Rest, v Gazzara (128 AD2d 781), in a Joker Poker case in which the State Liquor Authority had suspended petitioner’s license for a 10-day period and required the forfeiture of its $1,000 compliance bond, the Second Department concluded that the penalty was excessive insofar as the bond forfeiture was concerned. However, unlike the situation in Matter of MNDN Rest, v Gazzara (supra), the 10-day suspension assessed by respondent in the instant matter was deferred, and thus, the $1,000 bond forfeiture is, in effect, the only punishment imposed against petitioner. The law is clear that in examining an administratively imposed sanction, the court’s function is limited to reviewing whether the penalty in question was so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222; see also, Matter of Barr v Department of Consumer Affairs, 70 NY2d 821; Matter of Garayua v New York City Police Dept., 68 NY2d 970). Applying that standard, we do not believe that directing the forfeiture of petitioner’s bond herein was so disproportionate to the offense as to be shocking to one’s sense of fairness such as would constitute an abuse of discretion by the State Liquor Authority. Although Matter of Acosta v Ring (37 AD2d 957) and Matter of Student Prince v New York State Liq. Auth. (28 AD2d 671) are both distinguishable from the case before us, we decline to follow their authority to the extent of any conflict with our present holding. Concur — Kupferman, J. P., Sullivan, Carro and Milonas, JJ.