Opinion
Argued June 1, 1973
Decided July 3, 1973
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN C. MARBACH, J.
Benjamin Laskin and Eli Ratner for appellants.
Paul A. Martineau, Village Attorney ( Monroe I. Katcher, II of counsel), for petitioner-respondent.
MEMORANDUM. Order reversed, without costs and the proceeding remitted to the Appellate Division to take such action as may be appropriate, in accordance with the following memorandum:
There is no statutory provision expressly granting villages the right to intervene in liquor license hearings held pursuant to section 54 (subd. 3) of the Alcoholic Beverage Control Law. True, villages may seek judicial review of the grant of a license by the State Liquor Authority under section 123 of the Alcoholic Beverage Control Law as amended in 1966 (L. 1966, ch. 247; cf. Matter of Forman v. New York State Liq. Auth., 17 N.Y.2d 224, 229). The right to seek judicial review of agency action, however, does not necessarily imply the right to intervene in the underlying agency proceedings (compare Matter of Campo Corp. v. Feinberg, 279 App. Div. 302, 308, affd. 303 N.Y. 995 with Matter of City of New York v. Public Serv. Comm., 17 A.D.2d 581, 583; but see Matter of Zimet v. New York State Liq. Auth., 27 A.D.2d 558 , mot. for lv. to app. den. 19 N.Y.2d 579). Generally, allowance or denial of applications to intervene in administrative proceedings rests in the discretion of the agency (see 1 Cooper, State Administrative Law, at p. 324; 1 Davis, Administrative Law Treatise, § 8.11, at p. 571; 73 C.J.S., Public Administrative Bodies and Procedure, § 119, at p. 439). Thus, while it may have been preferable to allow the village to participate fully in the hearing, the agency had discretion to limit the village participation as it did.
Ordinarily, proceedings are brought under section 123 to review whether there is insufficient basis for the Authority grant of a liquor license. The Appellate Division, in remitting the matter to the Authority for a new hearing, did not determine whether there was a proper basis for the grant of a license. Section 123, however, is broad enough to permit the grant of a license to be challenged for any alleged illegality. In the instant case, the sole illegality alleged in the petition was the failure to permit the village full participation at the Authority hearing. It was not alleged that the grant of a license was arbitrary or that on the hearing there was an insufficient record. Having determined that the Authority was not required to permit the village full participation at the hearing, the matter should be remitted to the Appellate Division to take such action as may be appropriate.
I believe that the view taken by the court is altogether too mechanistic and overly technical. Whether or not the village is entitled to "intervene" as a party in a further hearing before the Authority under sections 54 and 64 of the Alcoholic Beverage Control Law, I am persuaded that it does have the right to challenge the Authority's determination under section 123. Implicit in both the village's petition and the decisions of the courts below is recognition of the fact that the record before the Authority was incomplete. A remission for the purpose of presenting evidence at a new hearing before that agency, therefore, should be accorded the village. Accordingly, I would modify the determination of the Appellate Division to the extent of remitting the proceeding to the State Liquor Authority for a hearing to permit the village to introduce evidence that the Authority's grant of a license to the respondent fails to promote "public convenience and advantage". (Alcoholic Beverage Control Law, § 2; see, also, Matter of Forman v. New York State Liq. Auth., 17 N.Y.2d 224, 229.)
Judges BURKE, BREITEL, JASEN, GABRIELLI, JONES and WACHTLER concur in memorandum; Chief Judge FULD dissents in part and votes to modify in a separate opinion.
Order reversed, without costs, and matter remitted to Appellate Division for further proceedings in accordance with memorandum herein.