Opinion
March 9, 1995
Appeal from the Supreme Court, New York County (Stephen Crane, J.).
At issue on this appeal is whether the penalty imposed by the respondent for selling alcohol to two underage persons, petitioner's third such offense, was so shockingly disproportionate to the offense as to amount to an abuse of discretion (Matter of Pell v. Board of Educ., 34 N.Y.2d 222). Under the circumstances of this case, where the two charged incidents occurred fourteen months apart, the licensee, who invested his lifetime savings in the establishment, was not personally involved in the sales, the offending employees were discharged and no intent to violate the law has been shown, the penalty of revocation of the petitioner's license adopted by a bare 3 to 2 vote of the Authority's members constituted an abuse of discretion. (Matter of Northwood Foods Corp. v. New York State Liq. Auth., 208 A.D.2d 633; Matter of Vitagliano v. State of N Y Liq. Auth., 149 A.D.2d 426, lv denied 74 N.Y.2d 612.) We note moreover that prior to the hearing the Authority itself advised petitioner that it would accept a 60-day suspension and $1,000 bond forfeiture to dispose of the charges.
Concur — Ellerin, J.P., Rubin, Ross, Nardelli and Tom, JJ.