Opinion
March 31, 1966
Determination and order of the State Liquor Authority disapproving petitioner-appellant's application for a restaurant liquor license, unanimously annulled, on the law and, the matter is remanded to the Authority for reconsideration, in the exercise of discretion, with $50 costs and disbursements to petitioner-appellant. The license is sought for premises located in the heart of Greenwich Village in an area the Authority describes as a "highly sensitive one which has created serious problems in the enforcement of the Alcoholic Beverage Control Law." The Authority's disapproval of petitioner's application was based, in part, on the nature of the surrounding neighborhood, coupled with the prior unsavory history of the particular premises (operated as a "clip joint" under previous management whose license was cancelled) and the Authority's conclusion that the applicant's principal lacked sufficient experience to operate a restaurant in this sensitive area. A situation in some respects analogous, at least insofar as it also involved the liquor license of a small, closely-held restaurant corporation whose principals likewise had no connection with a prior, disreputable management, was before this court quite recently ( Matter of 1068 First Ave. Rest. Corp. v. State Liq. Auth., 24 A.D.2d 951). There, this court, in annulling the determination by the Authority canceling the liquor license in question and in remanding the matter to the Authority for reassessment of the penalty, noted: "The legal fiction [of continuity of corporate liability] may be useful, and to that extent, meaningful, where pecuniary liabilities alone are involved, or property rights, and the like, but hardly so where the responsibility, with the correlative aspect of culpability, for past, present and future conduct is being assessed." Here, too, a finding, by the Authority, is improperly premised in part on the history of the premises under different and unrelated management. Nor is this reasoning rendered any more plausible by the Authority's purported linking of the history of the individual premises to an exposition of the area's generally prevalent dangers. It can be accepted that the area, as found by the Authority, is a "sensitive" one. Proof as to long prior offenses committed in particular premises in the area may provide additional corroboration of this already accepted datum, but that is all it does. The chief remaining basis for the Authority's determination is the alleged insufficient experience of the applicant's principal. Particularly in the present factual context, however, this is too subjective a ground for such a decision. The license is allegedly sought by the petitioner as an adjunct to its operation of an Italian-style restaurant — a business petitioner has apparently in fact been conducting on and off since November, 1963, without a liquor license. In addition, petitioner's principal had some other restaurant management experience, evidently without any criticism, having served as general manager of a nearby licensed restaurant for at least six months. The Authority's determination that this is insufficient experience embodies no objective standards; it is a bare, unsubstantiated conclusion made with insufficient factual inquiry into or analysis of the nature or quality of the prior experience and with no attempt to detail the level of experience necessary or customary in the field. The Authority may not be precluded from passing on petitioner's qualifications. The actual history of operation by petitioner of the premises in question is far more relevant to this determination than any generalized discussion of the type of neighborhood or conclusory inferences concerning the sufficiency of petitioner's experience. In assessing petitioner's qualifications, due weight may also be given to any apparent misstatements or inconsistencies contained in operational plans submitted to the Authority. But if this is done, it would also appear appropriate, at the same time, for the Authority to evaluate and make findings concerning the efficacy of remedial proposals offered by petitioner, such as elimination of the service bar, to control the feared abuses.
Concur — Botein, P.J., Breitel, McNally and Bastow, JJ.