Matter of Titen v New York City Dept. of Consumer Affairs
Annotate this CaseDecided on January 25, 2005
Supreme Court, New York County
In the Matter of the Application of MARVIN TITEN, Petitioner,
against
THE NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS, Respondent.
110692/04
Randye F. Bernfeld, Esq.
Pesetsky & Bookman
325 Broadway
New York, NY 10007
Plaintiff's Attorneys
Amy J. Weinblatt, Esq.
Assistant Corporation Counsel
Michael A. Cardozo
Corporation Counsel of the City of NY
100 Church Street, Room 5-176
New York, NY 10007
Defendant's Attorneys
Debra A. James, J.
Petitioner brings this Article 78 proceeding seeking to annul the January 5, 2004 denial of his application to renew his license for the newsstand on the southwest corner of 28th Street and Park Avenue South, New York County.
It is undisputed that petitioner has held a license and operated the subject newsstand at the same location since 1972. Petitioner had timely renewed his license every two years as required by the applicable regulation until March 31, 2002. Petitioner is legally blind and therefore under respondent's policy petitioner was not charged a renewal fee. Respondent states in its papers that it sends a renewal form to license holders in advance of the expiration of each two-year licensing period and that if there have been no intervening disqualifying events a timely renewal application results in respondent's issuance of another two-year license. However, because the standards for issuance of a newsstand license have changed, it is conceded that petitioner's current newsstand could not be approved for a new license under current standards and is approvable only because its renewal is grandfathered. See Rules of City of New York Department of Consumer Affairs (6 RCNY) §2-70 (b) (1).
Petitioner's two year license was set to expire on March 31, 2002. Respondent states that its records indicate that on January 2, 2002, a renewal form was sent to petitioner at the address which was set forth in the petitioner's 2002 renewal form. See 6 RCNY §2-70 (b) (1) ("DCA will send each newsstand licensee the appropriate renewal form"). Petitioner states that he had moved during the 2000-2002 license period and that his wife had notified respondent of the new address and submits his wife's affidavit attesting to that fact. Respondent claims it has no records of any notice of the address change.
Petitioner states that he did not receive the renewal form which apparently was sent to his former address. Petitioner states that he had his son make inquiries of the respondent about the [*2]missing renewal form. By affidavit, his son states that he made such inquiries before the license expired, but that respondent informed him that the renewal form was returned undelivered only after expiration of the license. Petitioner immediately obtained the form and filed it on June 26, 2002. Petitioner's son contends that at that time employees of the respondent assured him that his father would continue to be licensed on a "renewal pending" basis.
By letter dated January 5, 2004, respondent denied the petitioner's renewal application on the grounds that because petitioner "failed to renew [the] newsstand in a timely manner, the application was accepted as new. As such, the newsstand did not meet the criteria needed for a new newsstand application." The letter also offered to assist respondent in filing to apply to operate a newsstand at other suitable locations. Petitioner sought reconsideration of respondent's determination by letter dated February 26, 2004. By further letter dated March 25, 2004, respondent adhered to its prior determination on the grounds that petitioner's license expired on March 31, 2002, and that petitioner's application was dated June 26, 2002, about one month after the 60-day grace period for renewals provided in 6 RCNY §1-09.
Rules of City of New York Department of Consumer Affairs (6 RCNY) §1-09 provides that "Any application for a license renewal that is filed sixty days or more after the expiration date of such license shall be treated as a new license application." Petitioner argues that the application of this Rule, which because of its placement in the code applies to all types of licenses issued by respondent, to the present circumstance is arbitrary and capricious because it does not take into account the unique "grandfathering" of now non-conforming newsstand licenses as provided for in 6 RCNY §2-70. Petitioner argues that because of this "grandfathering," a licenseholder with a newsstand that does not meet current criteria has a substantial interest in having their application treated as a renewal rather than a new application and that respondents abrogated such interest by applying 6 RCNY §1-09 to these particular circumstances. All of the business and goodwill that petitioner built with his customers and their community at his present location for thirty years will be lost if petitioner is forced to file a new application. Therefore, petitioner asserts, the application of the rule in this instance is arbitrary and capricious.
In Porzungolo v New York State Liquor Authority, 35 AD2d 573 (2nd Dept. 1970), petitioners owned and operated a restaurant and had the appropriate wine license from 1960 to 1968. They inadvertently forgot to renew their license in 1968, although respondent asserted that the license renewal was mailed to them in March 1968. Petitioners continued selling alcoholic beverages on the premises until May 5, 1969, when they discovered the license had expired. On their own initiative, they notified respondent and thereafter abstained from further sale of alcoholic beverages. Citing their unblemished history, except for one minor infraction in 1963, the court found the New York State Liquor Authority's penalty of disapproval of their license to be an abuse of discretion, reversing the trial court's decision dismissing the petition.
In Balakas v Hamburg, 198 AD2d 82 (1st Dept. 1993), the petitioner was a sixty year old immigrant, who challenged respondent agency's determination denying his renewal of a mobile food vendor's license. The court found that petitioner's failure to apply timely was attributable to his extended hospitalization in his native Greece where he had the misfortune to fracture his skull. It found "hard to justify, even as a discretionary exercise" (198 AD2d at 83), the deprivation of the only livelihood petitioner had known for more than two decades under such circumstances. [*3]
So too, the court finds that the deprivation of a renewal license for a particular location where petitioner has painstakingly built up his business for thirty years is an unjustifiable exercise of discretion, since respondent does not deny that petitioner made persistent efforts to file a renewal application prior to the expiration of the license.
Accordingly, it is
ORDERED and ADJUDGED that the petition is GRANTED to the extent of annulling the determination and remitting the matter to respondent for reconsideration and a new determination processing petitioner's renewal application and the Clerk is directed to enter judgment accordingly.
This is the decision and order of the court.
Dated: January 25, 2005 ENTER:
J.S.C.
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