Tom's Log Cabin, Inc. v. New York State Liquor Authority

—Determination of respondent State Liquor Authority dated November 17, 1993, which suspended petitioner’s on-premises liquor license for 30 days and imposed a $1,000 bond forfeiture upon a finding that petitioner had suffered or permitted gambling on its premises in violation of respondent’s rule 36.1 (t) (9 NYCRR 53.1 [t]), is unanimously annulled, on the facts, only to the extent of vacating the penalty, the petition otherwise denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Herman Cahn, J.], entered April 1, 1994), is remanded to respondent for imposition of a lesser penalty, without costs.

The presence of a "Park Avenue” video display machine on petitioner’s licensed premises was substantial evidence of petitioner having "suffered or permitted” gambling on the premises in violation of respondent’s rule 36.1 (t) (9 NYCRR 53.1 [t]), since patrons who placed money into the device could be awarded free "points” or "hands” for having done so (Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791, 793). However, we remand to respondent solely for reconsideration of the penalty (see, Matter of Keenan v New York State Liq. Auth., 205 AD2d 359), since we regard any penalty greater than a 10-day suspension and $1,000 fine to be disproportionate to the offense and excessive. Concur—Murphy, P. J., Wallach, Asch, Nardelli and Mazzarelli, JJ.