Opinion
May 1, 1980
Order, Supreme Court, Bronx County, entered March 28, 1979, annulling respondent's determination, dated October 20, 1978, and ordering a hearing de novo, reversed, on the law, petition dismissed and determination reinstated and confirmed, without costs. The petitioner does not dispute the fact that it presented its relevant evidence at the hearing held pursuant to subdivision 3 of section 54 Alco. Bev. Cont. of the Alcoholic Beverage Control Law. At that hearing, it was permitted to make oral argument before the hearing officer ( 9 NYCRR 52.6). However, the petitioner did not have the right to be present at the original or subsequent meeting held by the board in considering and voting upon its application. (Matter of Moltzen v. Hostetter, 24 A.D.2d 1018, affd 18 N.Y.2d 629; Matter of Fredette v. Hostetter, 36 A.D.2d 891; Matter of Rochester Colony v. Hostetter, 19 A.D.2d 250.) The overriding question presented upon this appeal is whether the respondent acted arbitrarily and capriciously in denying a liquor license to the petitioner (Matter of Wager v. State Liq. Auth., 4 N.Y.2d 465, 468). The respondent found that the four "package stores" in the area adequately served the community. Furthermore, the respondent noted that the gross annual sales volume of two of the existing "package stores" was on the decline. These grounds support the respondent's determination that the public convenience and advantage would not be served by the issuance of a license to the petitioner. (Matter of Mandee Liqs. v. Roth, 57 A.D.2d 961, affd 44 N.Y.2d 653; Matter of Greco's Liq. Wine Cellar v. New York State Liq. Auth., 28 A.D.2d 1138.)
Concur — Murphy, P.J., Kupferman, Birns, Fein and Lynch, JJ.