Osbro Restaurant, Inc. v. New York State Liquor Authority

Appellate Division of the Supreme Court of New York

Osbro Restaurant, Inc. v. New York State Liquor Authority

44 A.D.2d 549, 353 N.Y.S.2d 758, 1974 N.Y. App. Div. LEXIS 5379

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 25, 1974

StatusPublished

This text of 44 A.D.2d 549 (Osbro Restaurant, Inc. v. New York State Liquor Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Osbro Restaurant, Inc. v. New York State Liquor Authority, 44 A.D.2d 549, 353 N.Y.S.2d 758, 1974 N.Y. App. Div. LEXIS 5379 (N.Y. Ct. App. 1974).

Pincite

Opinion

Determination of respondent State Liquor Authority, dated on or about' August 29, 1973, disapproving petitioner’s application for a restaurant wine license, unanimously annulled, on the law, without costs or disbursements, and the matter remanded to respondent State Liquor Authority for further proceedings consistent herewith. Concededly, the premises have an adverse license and police record and one of the brothers of petitioner’s sole principal (erroneously referred to as a “ convicted felon ” by the Authority) was present at the restaurant sought to [550]*550be licensed when the underworld figure Joey Gallo was fatally shot therein. However, on the record before us, we find insufficient factual support for the Authority’s refusal to credit petitioner’s uncontradieted testimony to the effect that Robert Ianniello is the sole party in interest or its conclusion that the issuance of a license to this applicant “ would create a high degree of risk in the administration and enforcement of the Alcoholic Beverage Control Law.” Petitioner’s principal has fully and satisfactorily disclosed the source of the funds used to acquire and renovate the premises and he now represents that he will resign his present employment and devote full time to the business. Respondents’, fear that petitioner lacks sufficient experience to operate a restaurant is refuted by the substantial gross food sales for the months subsequent to the filing of the application. Finally, respondents concede that their reference to a nearby school, and the location of its entrance doors, does not provide a ground for a mandatory disapproval of the application. In sum “we can only conclude under the facts of this case that the Authority’s determination was arbitrary and capricious, being based upon eonelusory reasons, unsupported by factual considerations”. (Matter of Farina v. State Liq. Auth., 20 N Y 2d 484, 493.) Concur — Kupferman, J. P., Murphy, Tilzer and Lane, JJ.

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Determination of respondent State Liquor Authority, dated on or about' August 29, 1973, disapproving petitioner’s application for a restaurant wine license, unanimously annulled, on the law, without costs or disbursements, and the matter remanded to respondent State Liquor Authority for further proceedings consistent herewith. Concededly, the premises have an adverse license and police record and one of the brothers of petitioner’s sole principal (erroneously referred to as a “ convicted felon ” by the Authority) was present at the restaurant sought to [550]*550be licensed when the underworld figure Joey Gallo was fatally shot therein. However, on the record before us, we find insufficient factual support for the Authority’s refusal to credit petitioner’s uncontradieted testimony to the effect that Robert Ianniello is the sole party in interest or its conclusion that the issuance of a license to this applicant “ would create a high degree of risk in the administration and enforcement of the Alcoholic Beverage Control Law.” Petitioner’s principal has fully and satisfactorily disclosed the source of the funds used to acquire and renovate the premises and he now represents that he will resign his present employment and devote full time to the business. Respondents’, fear that petitioner lacks sufficient experience to operate a restaurant is refuted by the substantial gross food sales for the months subsequent to the filing of the application. Finally, respondents concede that their reference to a nearby school, and the location of its entrance doors, does not provide a ground for a mandatory disapproval of the application. In sum “we can only conclude under the facts of this case that the Authority’s determination was arbitrary and capricious, being based upon eonelusory reasons, unsupported by factual considerations”. (Matter of Farina v. State Liq. Auth., 20 N Y 2d 484, 493.) Concur — Kupferman, J. P., Murphy, Tilzer and Lane, JJ.

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Bluebook (online)

44 A.D.2d 549, 353 N.Y.S.2d 758, 1974 N.Y. App. Div. LEXIS 5379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osbro-restaurant-inc-v-new-york-state-liquor-authority-nyappdiv-1974.