Opinion
December 1, 1983
Determination of the State Liquor Authority (SLA), dated May 12, 1983, finding the petitioner in violation of rule 36.1 (d) of the SLA and imposing a penalty of (i) license cancellation and (ii) bond forfeiture in the sum of $1,000, modified, on the law, by striking the penalty of the $1,000 bond forfeiture, and otherwise confirmed, and by remanding this matter for the imposition of the appropriate penalty in accordance with the memorandum, without costs. There is substantial evidence in the record to support the State Liquor Authority's determination that petitioner's establishment was no longer being operated as a "grocery store". (Alcoholic Beverage Control Law, § 3, subd 13; Matter of Best v. New York State Liq. Auth., 59 N.Y.2d 906, revg 89 A.D.2d 893; Matter of Procida v. State Liq. Auth., 79 A.D.2d 607. ) Thus, we find that the cancellation of petitioner's beer license was not shockingly disproportionate to the offense. ( Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233.) However, the additional penalty of a $1,000 bond forfeiture is shocking to this court's sense of fairness because the petitioner's record was unblemished prior to the offense. We find that there should be no bond forfeiture in this proceeding since this additional penalty is overly severe. Accordingly the matter is remanded to the agency for the imposition of an appropriate penalty in accordance with this memorandum. ( Rob Tess Rest. Corp. v. New York State Liq. Auth., 49 N.Y.2d 874.)
Concur — Murphy, P.J., Ross, Carro, Fein and Kassal, JJ.