Opinion
277 A.D. 60 98 N.Y.S.2d 298 In the Matter of CECIL BAIRD, Petitioner, v. STATE LIQUOR AUTHORITY, Respondent. Supreme Court of New York, First Department. June 13, 1950
PROCEEDING under article 78 of the Civil Practice Act (transferred to the Appellate Division of the Supreme Court in the first judicial department by an order of the Supreme Court at Special Term, entered in New York County) for an order annulling a determination of the State Liquor Authority disapproving an application by petitioner for a license for the sale of beer for off-premises consumption.
COUNSEL
Samuel Kaufman for petitioner.
Harry F. Karst of counsel (Alvin McKinley Sylvester, attorney), for respondent.
Per Curiam.
If there is substantial evidence of competent probative force to sustain the conclusion of the State Liquor Authority, its determination is to be confirmed. 'Unless it is made to appear that there is no substantial reason for the exercise of discretion, the courts will not interfere' (Matter of Restaurants, etc., Longchamps v. O'Connell, 271 A.D. 684, 687, affd. 296 N.Y. 888; Matter of Fiore v. O'Connell, 297 N.Y. 260). Subdivision 1 of section 121 of the Alcoholic Beverage Control Law provides, however, that 'Refusal by the liquor authority to issue a license or a permit' shall be 'subject to review by the supreme court'. If the facts on which the authority based its denial of petitioner's application for a license bear no reasonable relation to the conclusion reached, its determination is to be annulled and the license should be granted (Matter of Nicholass&sCo. v. Bruckman, 269 A.D. 681; Matter of Asche-Bandor Corp. v. Bruckman, 269 A.D. 681; Matter of 54 Cafes&sRestaurant v. O'Connell, 274 A.D. 428, affd. 298 N.Y. 883).
About six years ago this petitioner was fined $25 for book-making in violation of section 986 of the Penal Law. He has no other conviction against him, and no other basis has been presented by the authority for refusing to issue this license. In our judgment, that circumstance, standing by itself, bears no relation to whether he should now be allowed to sell beer, for off-premises consumption, from the shelves of the bona fide grocery store which it is undisputed that he has operated at this location for sixteen years. The determination of the State Liquor Authority, denying petitioner's application for a license for the sale of beer for off-premises consumption at the premises described in the application, should be annulled and said application should be granted.
PECK, P. J., VAN VOORHIS and SHIENTAG, JJ., concur; GLENNON and COHN, JJ., dissent and vote to confirm.
Determination of the respondent annulled, with $50 costs and disbursements to the petitioner and the application for said license granted.