Nostima Foods, Inc. v. State Liquor Authority

Judgment and order (one paper), Supreme Court, New York County (Sklar, J.), entered December 1, 19o6, which vacated the determination of the State Liquor Authority suspending petitioner’s license for seven days and imposing a monetary penalty of $2,750, and which remanded the matter to the State Liquor Authority for a hearing, unanimously affirmed, without costs.

Nostima was the holder of a restaurant liquor license for premises in Manhattan. The State Liquor Authority (SLA) instituted a proceeding to cancel or revoke Nostima’s license for permitting gambling on the premises and for keeping alcoholic beverages in containers, the contents of which were not as represented on the labels affixed to those bottles. After initially pleading not guilty, Nostima changed its plea to no contest. A condition of the no contest plea was that the penalty would not exceed a seven-day suspension and a $1,000 bond forfeiture on the gambling charge, and an additional penalty of $250 for each of the seven bottles involved in the mislabeling charge. The SLA accepted the plea and imposed the penalty of seven days’ license suspension plus $2,750.

The SLA has, pursuant to Alcoholic Beverage Control Law § 119, promulgated rules set forth at 9 NYCRR part 54 dealing with procedures for disciplinary proceedings. Section 54.1 (c) (2) permits a licensee to "request that a bond forfeiture or fine be imposed in lieu of any suspension of his license, the granting of which request shall be within the discretion of the authority” (emphasis added). The penalty imposed in this case, a bond forfeiture and fine and suspension thus exceeded the permissible penalties contained in the SLA’s own rules.

Since we affirm, based upon the unauthorized nature of the penalty imposed, we do not reach that portion of Supreme Court’s holding finding that the SLA’s offer and compromise procedure is unauthorized. Concur—Sandler, J. P., Carro, Asch, Milonas and Rosenberger, JJ.