Lehama Restaurant, Inc. v. O'Connell

280 A.D. 796, 113 N.Y.S.2d 338, 1952 N.Y. App. Div. LEXIS 3741

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1952
• Status: Published

Opinion

— In a proceeding pursuant to the provisions of article 78 of the Civil Practice Act, petitioner seeks to have annulled an order of the State Liquor Authority, which cancelled petitioner’s license on the grounds that it had ceased to conduct a bona fide restaurant and had sold alcoholic beverages to a person intoxicated or apparently intoxicated, and for an order directing the issuance of a renewal of its license. The particulars given by the Authority in response to the demand for particulars were adequate, and there was not undue limitation of the right to cross-examine the investigator. There was substantial evidence on which the Authority could find that there was a violation of subdivision 2 of section 65 of the Alcoholic Beverage Control Law. However, the revocation of the license was based not only on such violation, but also on the finding that a bona fide restaurant had ceased to be conducted on the premises. Section 118 of the Alcoholic Beverage Control Law was amended by chapter 605 of the Laws of 1950. Subdivision 7 of section 118, which required a license to be revoked if the use of the premises was not for a bona fide restaurant, as defined by subdivision 27 of section 3, was repealed. (L. 1950, eh. 605.) No provision of the Alcoholic Beverage Control Law specifically grants the State Liquor Authority discretion to revoke or suspend a license when a bona fide restaurant use has ceased. General power is conferred upon that body to revoke, cancel or suspend licenses for cause (§ 17, subd. 3; § 118). It has been held that discretionary power to revoke does not exist until the Authority gives notice to a licensee pursuant to subdivision 5 of section 114, that the license is subject to revocation for causes not specified in the statute or which do not constitute violations of the statute. (Matter of Glenram Wine & Liquor Corp. v. O’Connell, 295 N. Y. 336.) This record does not disclose that any notice was given to the licensee as provided by subdivision 5 of section 114. Insofar as the order of the State Liquor Authority was based on a cessation of the sale of food, it must therefore be annulled. The findings of the hearing commissioner, on which the Authority acted, reveal that his report was primarily based on the failure to conduct a bona fide restaurant. It cannot be said on this record that the Authority would have, revoked the license for the single unlawful sale had it not considered the first charge. There should be a rehearing of both charges, at which the Authority may produce evidence that it has given the notice under subdivision 5 of section 114, of the claimed cause for revocation, and the parties may produce further evidence. Order annulled on the law, without costs, and matter remitted to the State Liquor Authority for rehearing and the taking of further evidence and testimony, and for determination in accordance with the foregoing, and for such consideration of the application for a renewal of the license as the State Liquor Authority may determine. Insofar as the petition seeks a direction to respondents to issue a renewal of the. license, it is dismissed. The record presents no action of respondents refusing a renewal which is subject to review in this proceeding. Nolan, P. J., Carswell, Johnston, Adel and MaeCrate, JJ., concur.