19 Misc. 2d 975 | N.Y. Sup. Ct. | 1959
TMs is a proceeding instituted pursuant to article 78 of the Civil Practice Act in which corporate petitioner seeks a review of the determination by
The sole stockholder, officer and director of petitioner corporation, one Schreiner, was the individual owner, operator and restaurant liquor licensee of the premises for which the present license is sought for a period of seven years, commencing March 1, 1950 and ending on February 28, 1957. During that time no violation of law or rule was charged against Schreiner. Schreiner sold the business, with the approval of the respondent, to one Wagner, to whom a license was issued on March 1, 1957. Wagner in his operation of the business was charged with a multitude of violations.
A part of the consideration for the sale were promissory notes in the amount of $10,000 executed and delivered by Wagner to Schreiner. There is presently in excess of the sum of $9,000 owing to Schreiner from Wagner, representing an unpaid balance upon the promissory notes.
Undisputedly, Wagner operated the business in a manner that could only result in a revocation of the license issued to him. A suspension was ordered and thereafter Wagner was advised to appear for an interview to be held in connection -with the renewal of his license for the 1958-1959 license period. The interview was not attended by Wagner nor anyone representing him. His license was not renewed. In the meantime, Schreiner, the former licensee and owner of the business and creditor of Wagner of approximately $9,000, instituted proceedings that resulted in his reacquisition of the fixtures and equipment appertaining to the business. Upon acquisition of the fixtures and equipment, Schreiner formed the corporation which was the applicant for the license, issuance of which was denied by respondent.
As a condition precedent to making application, petitioner obtained a waiver of the moratorium provisions of rule 45 of the Buies of the Liquor Authority. The rule permits application to be made by a former licensee where a timely showing of unusual circumstances evidencing extraordinary hardship will result from strict application of the moratorium. The applicant must also show that the business sought to be licensed will be a genuine restaurant operation.
In denying petitioner’s application the following reasons were assigned therefor: ‘£ After due consideration of the facts involved on this application, the Authority determines that this application should be disapproved for the following reasons:
It is seen that in the main, denial of petitioner’s application was predicated upon the misconduct of Wagner in his operation of the business. It is not charged that petitioner or Schreiner, the sole stockholder, officer or director of petitioner, was a party to or in any sense acquiesced to the manner in which Wagner conducted the business. To the contrary, it appears that Schreiner, the predecessor in interest of Wagner, successfully
In addition to assigning Wagner’s misconduct as a reason for denying Schreiner’s application, respondent points out that Schreiner has not disposed of his business interests in Florida and that the premises for which his corporation seeks a license is not presently being operated as a bona fide restaurant. It appears to the court that to impose upon Schreiner the condition of disposing of his Florida business prerequisite to a favorable entertainment of his application, with the ever present probability of denial, is a harsh condition. If he were to dispose of his Florida business and meet with a denial of his New York application, his position would be, to say the least, unenviable.
It appears to the court Schreiner, possessor of the sole interest in petitioner corporation, has made a clear showing that circumstances exist evidencing extraordinary hardship. Severe financial loss and liabilities have resulted from misconduct not chargeable to Schreiner or petitioner. Further, the fact that the premises for which the license is sought has been operated for a considerable number of years in its present location indicates that it was not considered supernumerary within the limits fixed by the rules and regulations of respondent. Lastly, it is to be reasonably inferred from Schreiner’s past operation of the business that its future operation will be as a bona fide restaurant.
Issuance of a restaurant liquor license and retention thereof by the licensee is fully under control of the State Liquor Authority. If a licensee violates the statutes or rules governing retention of a license a suspension or revocation thereof may be ordered. But to determine in advance that an applicant with a history of previous successful and orderly operation of a restaurant and bar business will violate the rules and regulations governing such operation is an unreasonable and unwarranted ground for denying an application.
The prayer for relief in the petition is granted and the determination of the State Liquor Authority is annulled. The State Liquor Authority will be directed to issue the license to the petitioner as requested.
Submit order.