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Taurisano v. State Liquor Authority

Supreme Court of New York, Appellate Division

May 21, 1954

In the Matter of PHILIP F. TAURISANO, Doing Business as THE DIAMOND HORSESHOE, Respondent,
v.
STATE LIQUOR AUTHORITY, Appellant.

APPEAL from an order of the Supreme Court at Special Term (BOOKSTEIN, J.), entered February 19, 1954, in Albany County, which (1) granted an application by petitioner-respondent for an order under article 78 of the Civil Practice Act annulling a determination of the State Liquor Authority denying an application for a restaurant liquor license and (2) directed that a restaurant liquor license be issued to petitioner-respondent.

COUNSEL

William C. Phelan and Alvin McKinley Sylvester for appellant.

Frank G. Pratt for respondent.

Per Curiam.

The State Liquor Authority disapproved the petitioner's application for a restaurant liquor license on the ground that the 'prior record of law observance of the applicant is such that the issuance of a new license would create a high degree of risk in the administration and enforcement of the Alcoholic Beverage Control Law in that applicant was arrested and convicted [[sic] during February 1943 to a term of two years minimum, five years maximum, and execution of

Page 125

said sentence suspended'. It appears that the applicant had pleaded guilty to the crime of being 'an accessory to a felony', the felony being that of murder. The murder had been committed by the petitioner's brother in Utica, New York, and the petitioner had thereafter transported him by automobile from the City of Utica to the City of Rome, New York, and had subsequently refused to disclose his whereabouts to the police authorities.

Upon the basis of these facts, the petitioner was indicted for a violation of section 2 of the Penal Law as an accessory to the felony of murder. He pleaded guilty and was sentenced to a term of two to five years but the sentence was suspended and the petitioner was placed on probation for five years. The petitioner's brother was convicted of murder in the second degree and was sentenced to thirty years imprisonment and is still imprisoned.

The petitioner had applied for and procured from the Parole Board a certificate of good conduct which was required by subdivision 1 of section 126 of the Alcoholic Beverage Control Law, to make the petitioner eligible for a liquor license. Affidavits and statements were presented to the State Liquor Authority to support the petitioner's claim that his conduct had been uniformly good. The petitioner also submitted affidavits of a former detective and a former acting District Attorney with respect to the circumstances of the petitioner's conviction.

The Special Term held, upon these papers, that the State Liquor Authority's action in denying a license to the petitioner was arbitrary and capricious. In this, we believe, the Special Term erred. The good conduct certificate issued by the Parole Board merely removed the petitioner's disability and made him eligible to apply for a liquor license but the statute still left in the Liquor Authority discretion to determine whether a license should be issued to a person in the situation of the petitioner (Executive Law, ยง 242, subd. 3, par. [d]). It was for the Authority to say what credence and weight should be given under the circumstances to the affidavits and statements submitted on the petitioner's behalf.

In view of the serious nature of the crime of which the petitioner had been convicted, clearly involving moral turpitude, we cannot say, as a matter of law, that it was arbitrary or capricious for the Authority to deny a license to the petitioner. The question is basically one of public policy, the carrying out of which has been entrusted by the Legislature to the Authority.

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The Authority is charged with responsibility for the protection of the public interest in a highly sensitive area and, in this situation, there is special reason to apply the rule that a decision made by an administrative agency in the exercise of its discretion is final, unless it is wholly lacking in rationality. ( Matter of Battaglia v. O'Connell, 269 A.D. 1002; Matter of Fiore v. O'Connell, 297 N.Y. 260; Benjamin on Administrative Adjudication in State of New York, pp. 344-346.)

The order should be reversed, the petition dismissed and the determination of the State Liquor ...


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