Agnello v. State Liquor AuthorityAgnello v. State Liquor Authority
Petitioner seeks to annul a determination of the respondent State Liquor Authority which canceled petitioner’s on-premises license by reason of charges of “ disorderly conduct and public intoxication and improper conduct ” com
As a part of the proceedings, the Authority introduced the record of the “ Adverse History of Licensee ”. This indicated that since the original issuance date of the license, April 14, 1961, the only substantial adverse incident, resulting in a 30-day suspension, 10 days of which were deferred, occurred on May 28,1965 when the petitioner ‘ ‘ suffered or permitted the licensed premises to become disorderly on June 8, 1964, in that he used foul, abusive and profane language and that he assaulted a police officer ”. It is of some significance that the police officer involved in the present proceeding was the same police officer involved in the May 28, 1965 incident.
We do not excuse or condone the alleged conduct of the petitioner on October 13, 1967. However, petitioner contends, we believe with some merit, that the measure of penalty imposed by the Authority for this incident, which occurred several miles from the licensed premises and which was in no way connected with the operation of the premises, was too severe and was an abuse of the Authority’s discretion. In our judgment, bearing in mind the particular circumstances of petitioner’s record since 1961, a suspension of 30 days would have been sufficient and more appropriate punishment (CPLR 7803, subd. 3). While revocation and involuntary cancellation are considered synonymous for such purposes as procedural requirements (Matter of Glenram Wine Liq. Corp. v. O’Connell,
The Authority itself construes the law as distinguishing the two procedures for purposes of renewal. In an appeal from a cancellation of a restaurant liquor license, in Matter of Piccolo Club v. State Liq. Auth. (18 A D 2d 658), the court confirmed the determination, despite reservations on the harshness of the penalty, because they were ‘1 informed by the Authority * * * that the cancellation of a license does not preclude the making of an application for a new license after any specified period of time, as is the case when a license is revoked (Alcoholic Beverage Control Law, § 126, subd. 5, par. [a]). We assume the Authority advisedly did not revoke petitioner’s license, which would have the effect of foreclosing it from procuring a new license for at least two years.” (See, also, 1935 Opns. Atty. Gen. 169-170.) In cases of minor infractions the Authority “ cancels a license instead of revoking it, in order that the licensee may not be subjected to the two year bar ”.
In a sense this matter has become academic, for petitioner’s 1968 license would have expired one week after it was cancelled and petitioner would have been required to apply for renewal for the new license period starting October 1, 1968. Petitioner could have applied at any time since cancellation and is presently entitled to apply for a new license, notwithstanding the cancellation of his license. The reduction of the penalty on the ground that the misconduct did not relate to the licensed premises and, therefore, did not justify the harsh punishment of cancellation (Matter of Mojica v. State Liq. Auth., 29 A D 2d 564) would not restore the license even prospectively, but would have some bearing on a new application. If petitioner had made application for renewal of his license 30 days after its cancellation and the Authority had denied renewal solely by reason of the incident of October 13, 1967, and the ‘ ‘ Adverse History of Licensee ”, we would have been constrained to annul the determination. (Cf. Matter of 125 Bar Corp. v. State Liq. Auth., 24 N Y 2d 174.) We make mention of this for the future
The determination of the State Liquor Authority should be confirmed.
Marsh, Wither, Bastow and Henry, JJ., concur. Determination unanimously confirmed without costs.