2 West 125th Liquors, Inc. v. New York State Liquor Authority

Determination of respondent State Liquor Authority dated December 22, 1993, challenged by petition pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [William McCooe, J.], entered March 31, 1994), which revoked petitioner’s off-premises liquor license and imposed a $1,000 bond forfeiture, annulled, on the law, to the extent of vacating the penalty and remanding the matter to respondent for reconsideration and imposition of an appropriate penalty, and otherwise confirmed, without costs.

Substantial evidence supports respondent’s determination that petitioner, a retail licensee, violated Alcoholic Beverage Control Law § 100 (1) and § 105 (12) by selling alcoholic beverages to other retail licensees for the purpose of resale. Especially compelling were the receipts that three of petitioner’s purchasers provided to respondent’s investigator (cf., Matter of Lane v State of N. Y. Liq. Auth., 127 AD2d 922).

However, the penalty imposed for the violation was excessive and shocking to one’s conscience under the circumstances (see, Matter of Mei Chi Liq. Corp. v New York State Liq. Auth., 195 AD2d 270, lv denied 82 NY2d 660), especially given the technical nature of the violation, and the fact that the petitioner has never been charged with any other violation by the respondent, or any other agency. Accordingly, we remand to respondent solely for reconsideration of the penalty imposed. Concur—Rosenberger, J. P., Ellerin and Ross, JJ.