Opinion
Argued November 12, 1973
Decided November 21, 1973
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ARNOLD L. FEIN, J.
Joel Berger, Stephen Shestakofsky and Robert Andrew Kline for appellant. Louis J. Lefkowitz, Attorney-General ( Michael Colodner, Samuel A. Hirshowitz and Stephen P. Seligman of counsel), for respondent.
MEMORANDUM. The order of the Appellate Division should be affirmed. With the further passage of time because this matter has been pending in litigation, petitioner may now be able to satisfy the Authority of his rehabilitation and to persuade it that an automatic debarment by reason of his criminal record is not appropriate. Hence, this determination is without prejudice to renewal by him of his application for permission to be employed in licensed premises. While the granting of permission remains in the discretion of the Authority, elemental fairness suggests that the period and depth of rehabilitation is relevant in determining whether that discretion should be exercised favorably or withheld, and if further exploration is required to ascertain the depth of rehabilitation then the Authority is bound to make that further exploration.
I dissent. In my view fair consideration was not accorded petitioner's application. The printed form offered no invitation or space to present information as to rehabilitative efforts or results; the Authority admitted that petitioner's only personal interview lasted about 15 minutes; Special Term found that petitioner "was not afforded an opportunity to introduce * * * witnesses * * * or to offer evidence in explanation or rebuttal. He was not permitted to present evidence as to the extent of his rehabilitation or other activities since his release from incarceration".
I do not intend to suggest that every applicant for approval of employment pursuant to subdivision 2 of section 102 of the Alcoholic Beverage Control Law is entitled to an evidentiary hearing with the accompanying panoply of due process rights. In view of the fact, recognized by the Authority, "that the rehabilitation of ex-convicts is an important social consideration", and in fairness to and respect for the individual applicants, however, I would hold that such an applicant is entitled to a fair opportunity, consistent both with the circumstances of his individual background and the nature of his application, as well as with the legitimate administrative demands on the Authority, to a fair and reasonable opportunity to present relevant and material evidence in support of his application. In my view petitioner here, on the basis of the record before us, was not accorded such opportunity in connection with his application.
Accordingly, I would reverse and remit the matter to the State Liquor Authority for reconsideration of petitioner's application with opportunity extended to him to submit current supporting data.
Chief Judge FULD and Judges BURKE, BREITEL, JASEN and GABRIELLI concur in memorandum; Judge JONES dissents and votes to reverse in a separate opinion in which Judge WACHTLER concurs.
Order affirmed, without costs, in a memorandum.