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MATTER LA GRECA REST. v. NEW YORK STATE LIQUOR AUTHORITY (10/07/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


October 7, 1969

IN THE MATTER OF LA GRECA REST., INC., APPELLANT,
v.
NEW YORK STATE LIQUOR AUTHORITY, RESPONDENT

Concur -- Eager, J. P., Capozzoli, Tilzer, Nunez and Macken, JJ.

Judgment entered June 17, 1969 unanimously reversed, on the law, without costs or disbursements, the determination annulled, the petition granted and the Authority is directed to approve petitioner's application of a corporate change affecting the restaurant premises. The Authority's disapproval was based solely upon the arrest record of Robert Rivera (the proposed purchaser) which showed a disorderly conduct conviction some 16 years ago and a conviction for violation of the Alcoholic Beverage Control Law 9 years ago, together with a declaration of juvenile delinquency 23 years ago when Rivera was 15 years of age. Upon the entire record we conclude that the Authority's finding that approval of the application would create a high degree of risk and hazard in the administration and enforcement of the Alcoholic Beverage Control Law is arbitrary and capricious. In evaluating an applicant's fitness consideration must be given to the circumstances of any criminal conviction as well as to the extent to which rehabilitation has occurred. No consideration was given by the Authority to the fact that in the intervening 9 years since his last conviction Rivera led an exemplary life and to the circumstance that he had been an employee for the past 2 years of the corporation of which he now seeks to become the owner and that in that time neither he nor the corporation suffered an adverse record. Although, as the Authority notes, the Legislature has vested it with the duty to determine who may be licensed to traffic in intoxicating liquors, such duty must be exercised within the law, consonant with the policy of the State to assist in the rehabilitation of persons convicted of crime and consistent with the concept of the Alcoholic Beverage Control Law that consideration be given to the good conduct of an applicant in determining whether he is a fit subject for a license (Alcoholic Beverage Control Law, ยง 126).

19691007

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