Opinion
278 A.D. 371 105 N.Y.S.2d 532 In the Matter of THOMAS GIOVATTO, Respondent, v. JOHN F. O'CONNELL et al., Constituting the State Liquor Authority, Appellants. Supreme Court of New York, First Department. June 20, 1951
APPEAL from an order of the Supreme Court at Special Term (A. J. LEVY, J.), entered April 18, 1951, in New York County, which granted a motion by petitioner in a proceeding under article 78 of the Civil Practice Act to set aside a determination of the State Liquor Authority disapproving an application by petitioner for a renewal of his restaurant liquor license and directing the Authority to issue a renewal of petitioner's license.
COUNSEL
Alvin McKinley Sylvester for appellants.
Louis J. Lefkowitz of counsel (Hyman D. Siegel with him on the brief; Louis J. Lefkowitz, attorney), for respondent.
Per Curiam.
In this proceeding, the State Liquor Authority appeals from an order of the Special Term which annulled its determination disapproving an application for renewal of a restaurant liquor license and directed the issuance of such license. There is evidence in the record that on six separate occasions homosexuals were arrested charged with loitering in the premises for the purpose of soliciting men to commit unnatural acts, and were subsequently convicted of that offense. The court below apparently treated the case as if it were a revocation proceeding instead of a refusal to renew petitioner's license. Refusal of a license either originally or by way of renewal is not the same as the revocation or suspension of a license. An application for renewal is to be treated in precisely the same manner as an application for a new license (Matter of Restaurants, etc., Longchamps v. O'Connell, 271 A.D. 684, affd. 296 N.Y. 888). The courts will not annul the action of the Authority in refusing to issue or renew a liquor license unless it clearly appears that its action has been arbitrary, capricious and unreasonable (Matter of Fiore v. O'Connell, 297 N.Y. 260). There is ample evidence in this record to sustain the determination of the Authority in refusing to grant petitioner's license. It is argued that the case of Matter of Lynch's Builders Restaurant v. O'Connell (277 A.D. 705) requires an affirmance of the order under review. We think otherwise. That case is distinguishable. TheLynch case did not involve the refusal to renew a license. It was a revocation proceeding. In that case it appeared that two arrests were made. There was but one conviction in that case. In the case before us, the acts of solicitation occurred on six separate occasions and in each instance the homosexual was convicted of violating subdivision 8 of section 722 of the Penal Law.
The order appealed from should be reversed and the determination confirmed, with $20 costs and disbursements to the appellants. VAN VOORHIS, J. (dissenting).
The distinction, in this instance, between the powers of the court in reviewing the revocation of a license and a refusal to renew seems more apparent than real. The order appealed from setting aside and annulling the determination of the State Liquor Authority disapproving the application of petitioner for a renewal of his restaurant liquor license should be affirmed for the reasons stated in Matter of Lynch's Builders Restaurant v. O'Connell (277 A.D. 705). In the instant case the misconduct for which the arrests were made was surreptitious, and with one exception the arrests took place off the premises. There were other similar arrests in the Lynch case also, likewise off the premises, which the Authority did not regard as having probative force. The order appealed from should be affirmed.
PECK, P. J., DORE, SHIENTAG and HEFFERNAN, JJ., concur in Per Curiam opinion; VAN VOORHIS, J., dissents and votes to affirm, in opinion.
Order reversed and the determination confirmed, with $20 costs and disbursements to the appellants. Settle order on notice.