Opinion
March 14, 1966
Proceeding under article 78 of the CPLR to annul a determination of the New York State Liquor Authority, made November 9, 1965 after a hearing, which cancelled petitioner's restaurant liquor license. By order of the Supreme Court, Kings County, entered December 15, 1965, pursuant to CPLR 7804, the proceeding was transferred to this court for disposition. Petition granted, with costs; determination of the State Liquor Authority annulled; and the Authority directed to reinstate forthwith the petitioner's restaurant liquor license for the period March 1, 1965 to February 28, 1966. While there was substantial evidence to warrant the Authority's finding that petitioner was guilty of the two charges made against it, the Authority was precluded by statute (Alcoholic Beverage Control Law, § 118) from invoking the charge that petitioner had concealed prior arrests of a person who was an officer, director and stockholder of petitioner in its original application as a basis for canceling the license. This section provides that: "Notwithstanding the issuance of a license or permit by way of renewal, the liquor authority may revoke, cancel or suspend such license or permit * * * for causes or violations occurring during the license period immediately preceding the issuance of such license or permit". We held in Matter of Hacker v. State Liq. Auth. ( 21 A.D.2d 755) that: "This statute is one of limitation; it limits the Authority's power to deal with past offenses. Once the Authority has issued a license, the Authority has no power to suspend or revoke it for any cause or violation which occurred prior to the license period immediately preceding its issuance ( Matter of Benjamin v. State Liq. Auth., 13 N.Y.2d 227)." The application as to which petitioner is charged with having concealed such past arrests was made in connection with the license period August 30, 1963 to February 29, 1964. The violation therefore occurred during that period. The license was renewed on March 1, 1964 and again on March 1, 1965. The determination under review was made on November 9, 1965 and could not properly be based on a violation which occurred prior to the license period immediately preceding the last renewal of the license being revoked. We hold further that the Authority was precluded from invoking the charge that on November 1 and November 22, 1964 petitioner served intoxicated persons as a basis for canceling the license, because the renewal of the license effective March 1, 1965 constituted an estoppel ( Matter of Hacker v. State Liq. Auth., supra; cf. Matter of Benjamin v. State Liq. Auth., supra). We conclude therefore as a matter of law that the Authority exceeded its power in revoking petitioner's license on the basis of the two charges made against it. Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.