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SUPREME COURT OF NEW YORK, SPECIAL TERM, KINGS COUNTY 1969.NY.40887 <>; 298 N.Y.S.2d 159; 59 Misc. 2d 93 March 20, 1969 1136 EAST CORP., PETITIONER,v.NEW YORK STATE LIQUOR AUTHORITY, RESPONDENT Abraham Schatzman for petitioner. Samuel Roberts for respondent. Louis B. Heller, J. Author: Heller

Louis B. Heller, J.

Author: Heller

 This is a proceeding pursuant to article 78 CPLR to enjoin the State Liquor Authority from interfering with the operation of the licensed premises pending determination of disciplinary and non-renewal hearings heretofore held at the State Liquor Authority.

The overbearing conduct of respondent New York State Liquor Authority throughout these oppressive proceedings -- and I have carefully perused the record in the instant and previous petitions -- is a classic example of bureaucratic arrogance and shows a shocking indifference to any semblance of fair play, not to mention compassion.

Petitioner, a one-man corporation, operates a restaurant bar and grill in the Brownsville-Crown Heights section of Brooklyn. Petitioner's president is a college graduate and has never been arrested or involved in any police action whatsoever. The business, in which his life savings are invested and in which he worked upwards of 12 hours a day, 7 days a week sans vacations, was the sole means of support for himself, his wife and children.

The rather sensitive area in which the subject premises is located has been the scene of riots and disorders. Nevertheless, at no time during petitioner licensee's tenure was the premises in any way involved nor was there ever a complaint or police action, except for the alleged violations of the Liquor Authority rules which are the subject of the disciplinary hearing.

Because of changing conditions in the area, there has been a complete change of patronage. Petitioner entered into a contract for the sale of the business to parties who would be more compatible with the new circumstances and who could successfully operate the restaurant bar and grill, while petitioner's president secured a job with the United States Department of Welfare as a caseworker.

Due to a misunderstanding as to the scheduled time of a disciplinary hearing before the State Liquor Authority, petitioner's restaurant liquor license was summarily revoked without any hearing on the merits. Of course, petitioner's business is worthless without a liquor license, and the contract for the sale of the restaurant bar and grill is dependent on the continuance of a valid license to dispense liquors.

In his opinion on the previous petition (58 Misc. 2d 217), Mr. Justice Wegman excoriated respondent Liquor Authority for its high-handed violation of petitioner's elementary constitutional right to due process, granted a judgment setting aside the unilateral revocation of the liquor license, opened the default, and directed a hearing on the charges before the State Liquor Authority, at which petitioner would be afforded the opportunity to confront its accusers and defend against respondent's allegations. Pursuant to the judgment, a full hearing was commenced at the State Liquor Authority on the disciplinary charges. Hearings were held November 18, 1968, December 23, 1968, January 8, 1969, January 22, 1969 and the hearing concluded on February 10 1969, after more than 500 pages of testimony were taken. Decision was reserved by the hearing officer and to date there has been no decision.

Upon petitioner's application for a renewal of his liquor license, it was served with a notice of interview regarding a non-renewal hearing which was held at the State Liquor Authority on February 10, 1969. The non-renewal "hearing" consisted of the record and transcript of the revocation proceedings. No decision has as yet been received as to the non-renewal hearing.

Petitioner duly filed the required application for renewal of its license for the period March 1, 1969 to February 28, 1970, posted the required bond, and submitted the required fee. It received a communication dated February 21, 1969, wherein the State Liquor Authority acknowledged receipt of the renewal application for the 1969-1970 license year but informed it that the members of the Authority have directed that no action be taken on this application, for the reason that: "There is an uncompleted disciplinary or non-renewal proceeding against the license which is of such a serious nature that revocation, cancellation, or non-renewal may result and therefore renewal of the license at this time would not serve public convenience and advantage."

This action or, rather, inaction, of respondent State Liquor Authority places petitioner in a precarious position indeed. Unless the Liquor Authority hearing officer hands down his decision and petitioner is granted a renewal of its license by March 29, 1969 (at which time the stay contained in the order to show cause dated February 28, 1969 expres), the petitioner faces economic disaster.

Petitioner thereupon instituted the instant article 78 proceeding. Respondent cross-moves to dismiss the petition upon the following objections:

1. The non-final action of the Authority is not subject to review under sections 2 and 121 of the Alcoholic Beverage Control Law.

2. The petition does not state facts sufficient to entitle petitioner to the relief sought ...

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