Flo Inn, Inc. v. O'Connell

280 A.D. 965, 116 N.Y.S.2d 608

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1952
• Status: Published

Opinion

Proceeding under article 78 of the Civil Practice Act (transferred to the Appellate Division of the Supreme Court in the first judicial department by an order of the Supreme Court at Special Term, entered in New York County) to review and annul a determination of respondents, constituting the State Liquor Authority, canceling petitioner’s restaurant liquor license.

Per Curiam.

Petitioner appeals from a determination of the "State Liquor Authority canceling its restaurant liquor license on the ground that (1) petitioner had permitted the licensed premises to become disorderly, and (2) had failed to keep adequate books and records.

The events upon which the finding of disorder are based occurred with such rapidity that it cannot fairly be said that petitioner “ suffered or permitted ” the disorder. Moreover, there had been no history of incidents in the premises. There was nothing to indicate that the incident was foreseeable or preventable.

In the absence of more specific regulations by the Authority it cannot be said that the evidence as to the manner in which petitioner kept its books supported the determination or merited the penalty imposed. Nor is there any evidence that the Authority ever gave any warning or directed or suggested a method by which petitioner should maintain its records. (See Matter of Radigan v. O’Connell, 280 App. Div. 92, 97, mod. 304 N. Y. 396.)

The determination accordingly should be annulled, with $20 costs and disbursements to petitioner.

Dore, J. P., Cohn, Callahan, Van Voorhis and Breitel, JJ., concur.

Determination unanimously annulled, with $20 costs and disbursements to the petitioner. Settle order on notice.