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Matter of Armstrong v. Hostetter

Appellate Division of the Supreme Court of New York, Third Department
May 22, 1967
28 A.D.2d 610 (N.Y. App. Div. 1967)

Opinion

May 22, 1967


Proceeding under article 78 of the Civil Practice Law and Rules (transferred to the Appellate Division, Third Department, by order of the Supreme Court at Special Term, Ulster County) to review a determination of the State Liquor Authority suspending petitioner's restaurant liquor license for a period of 30 days. The suspension was upon the ground that the petitioner-licensee had failed to disclose in his renewal application that there had been an arrest made for a crime committed on the licensed premises or which involved the licensed premises. One Terry Villa was arrested for unlawfully possessing and selling narcotics on January 4, 1964. This arrest took place while she was behind the bar and was apparently assisting the operator of the establishment. When petitioner thereafter filed for renewal of his license, he failed to disclose this arrest in answer to a specific inquiry in the application. It further appears that Terry Villa had previously been a regular employee of petitioner and, at the time of the arrest, was not only assisting in serving patrons from behind the bar, but also had a room above the licensed premises. Petitioner contends that he correctly answered the question on the application and claims he never knew any such arrest took place. In addition to other evidence in the record, it clearly shows that petitioner knew of and attended the trial of Terry Villa upon the charge of possession and selling narcotics, all before the application in question was filed. Of further interest is Exhibit "9" annexed to petitioner's answer to charges preferred by respondents, where it is stated that "It is true that Terry Villa was arrested on the date of January 4, 1964, in the licensed premises". Rule 36 of the Rules of the State Liquor Authority ( 9 NYCRR 53.1) provides in pertinent part as follows: "Any license or permit issued pursuant to the Alcoholic Beverage Control Law may be revoked, cancelled or suspended for the following causes: * * * (b) Fraud, misrepresentation, false material statement, concealment or suppression of facts by the licensee or permittee in connection with an application for a license or permit or for the renewal thereof". We find in the record substantial evidence which supports the finding by the State Liquor Authority that in petitioner's application for a renewal of his license, he made a false material statement, and in such case, the determination of the Authority may not be disturbed ( Matter of Avon Bar Grill v. O'Connell, 301 N.Y. 150). Petitioner's further contention that the penalty imposed by the Authority was an abuse of discretion is not well founded. Upon all the evidence, the 30-day suspension was a reasonable exercise of discretion. (Cf. Matter of Miller v. New York State Liq. Auth., 20 A.D.2d 725.) Determination confirmed, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.


Summaries of

Matter of Armstrong v. Hostetter

Appellate Division of the Supreme Court of New York, Third Department
May 22, 1967
28 A.D.2d 610 (N.Y. App. Div. 1967)
Case details for

Matter of Armstrong v. Hostetter

Case Details

Full title:In the Matter of NATHAN G. ARMSTRONG, Doing Business as ARMSTRONG'S BAR…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 22, 1967

Citations

28 A.D.2d 610 (N.Y. App. Div. 1967)