Fleischer v New York State Liq. Auth.

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Fleischer v New York State Liq. Auth. 2012 NY Slip Op 30864(U) March 21, 2012 Sup Ct, NY County Docket Number: 110410/2011 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY MICHAEL D. STALLMAN PRESENT: Hon. PART 21 Justice ~~~ ~ ~ ~~~~ GEORGETTE FLEISCHER, Individually and as Founder of FRIENDS OF PETROSINO SQUARE, INDEX NO. 110410/1I MOTION DATE 12/8/1 I Petitloner, MOTION SEQ. NO. -v- 001 THE NEW YORK STATE LIQUOR AUTHORITY, KERRI J. O'BRIEN in her capaclty as Deputy Commissioner of Licensing, and DANA E. CHRISTIAN in his capacity as Acting Director of Licenslng, Respondents. The following papers, numbered 1 to 8 , and memoranda of law were read on this Artlcle 78 petition IWs). 1-2; 3 Verified Answer - Exhibits 1-5, 6 [Affidavlt], 7-8; Afflrmation-Exhlbits A-0; Verlfied Answer" I No(s). 4-6 Verifled Reply-Exhibits I No(s). 7;8 Notice of Petition- Verified Petition Affidavit in Suppoit- Exhibits 1-4 - Exhiblts A-S; A-D; Verified Reply-Exhibits A-C *The Verifled Answer of Intervenor 114 Kenmare Associates was annexed as Exhibit A to a prior motion for leave to . . Intervene; it is not separately numbered here but was also read Upon the foregoing papers, it is ADJUDGED that this Article 78 petition is denied and the proceeding is dismissed. Inthis Article 78 proceeding, petitionerchallengesthe determinationof respondent New York State Liquor Authority (SLA) to renew a liquor license issued to intervenor respondent 114Kenmare Associates, LLC, doing business as La Esquina Restaurant (La Esq uina). The relevant provisionsof the Alcohol Beverage Control Law concerning renewal of liquor licenses were amended and effective as of September 23,201 Iand therefore have , changed since La Esquina's liquor license was renewed. At the time of the renewalof La Esquina's liquor license, Alcohol Beverage Control Law §§ 64 (2-a) and I 0 9 (2) required a licensee in the City of New York to notify the community boardwith jurisdiction over the area where the licensed premises is located, not less than 30 days prior to submission of its renewal application to the SLA. Alcohol BeverageControl Law 9 64 (2-a) then provided that the community board " may_ew-ress an opinion for or against the granting o such f UNFILED JUDGMENT hk ludament h a not been entered by the County Cbrk (Continued . . .) [* 2] Fleischer v New York State Liquor Auth., Index No. I 1041012011 license. Any such opinion shall be deemed part ofthe record upon which the liquor board makes its determination to grant or deny such license. Here, it is not disputed that La Esquina notified Community Board 2 (CBZ) of its intent to renew its liquor license less than 30 days prior to submitting its renewal applicationto the SLA. (Verified Answer, Ex 5.) However, by letter dated May 27,2011to the SLA, CB2 s chair, Jo Hamilton, wrote, in pertinent part: The notice was received too late for the applicant to be placed on the May agenda of CB2 s SLA Licensing Committee. However, the applicant has agreed to appear before the committee in June to address any concerns voiced by the community. Therefore, we agree to waive the 30 day period and allow the applicantto proceedto filetheir applicationfor an on-premise liquor Iicense. (Id.)Hamilton also signed a second letter dated May 27,2011, nearly identical to the other letter, except that it stated, in pertinent part: We agree to waive the 30-day period and allow the applicant to proceed to file its renewal application for an on-premise liquor license. Howeverwe respecifully request that the N Y State Liquor Authority considers the CB2 resolution, which may include stipulations regarding community concerns, before making a final determination on this renewal application. (Verified Petition, Ex B [petitioner s emphasis].) - . By letter dated June I , 2011to La Esquina,the SLAstated, Please take notice that the above listed licensee has filed a renewal application in a timely fashion with the New York State Liquor Authority. This letter will grant permission for the licenseeto operatethe premises under the Alcohol Beverage Control Law. A formal license will be issued by computer from the State Liquor Authority Renewal Unit (VerifiedPetition, Ex B.) It is not disputed that the SLA renewed La Esquina s liquor license, effective 5/31/201 I until 5/31/2013. (Id.) On June 14,2011, CB2 s SLA Licensing Committee recommended denial of the renewalof La Esquina s liquor license. (Verified Petition, Ex C.) On June 23,201 1, the full board of CB2 also recommended denial of La Esquina s liquor license. Petitionerargues that the SlAshould not have renewed La Esquina s liquor license becauseCB2 was not timely notified of its renewal application, because CB2 ultimately recommendedthat La Esquina s license should not be renewed, and becausethe SLA did not take into account CB2 s disapproval before it decidedto renew La Esquina s license. Petitioner disputes SLA s statement in the June 1,2011letter that La Esquina filed a renewal application in a timely fashion with the SLA, in that timely notice was not given to CB2. (Continued Page 2 01 5 ...) [* 3] Neischer New York State Liquor Auth., Index No. 1104101201I Petitioner also recounts the history of petitioner s complaints and opposition to the continued operation of La Esquina. For example, petitionerwrote a letter in 2007 to the Sth Police Precinctand to the SLA complaining of noise, overcrowding, and illegal parking (Verified Petition, Ex I), and noise complaints to 311about La Esquinawere purportedly made in September and November 2009, April, May, and October 2010, and March and May 201 1 (See Verified Petition, Ex C.) Petitioner submits a 2008 resolution from CB2 unanimously opposing La Esquina s application to operate a sidewalk cafe (Verified Petition, Ex J). Petitioner also submits a letter dated November30,2009 from petitioner to the SLA, requesting the SLA to revoke La Esquina s liquor license (VerifiedPetitioner, Ex P), for overcrowding and noise that petitioner complained of previously, for alleged building code violations, and other reasons. For example, the letter mentions the 2008 conviction o Cordell Lochin, who was reportedly one of La Esquina s original four f principals, for felony drug smuggling. Petitioner also mentions that SLA previously renewed La Esquina s license in 2009, notwithstandingpending disciplinary charges against La Esquinathat could have resulted in revocationor cancellation of its license. (Verified Petition, Ex 0.) The discretion of the Authority in denying a new applicationfor a license, or a renewalapplication, is broader than in revokingor suspending a license, and this court is limited to a determination whether the record discloses circumstanceswhich leave no possiblescope for the reasonableexercise of that discretion. However, even this broad discretion must rest on a foundation of rationality. (Sled Hill CafeJlnc. v Hosfetter, 22 NY2d 607, 612 [1968] [internal citations omitted].) To the extent that petitioner argues that Alcohol Beverage Control Law 5 64 (7) (9 required the SLA to conduct a public hearing as to the renewal of La Esquina s liquor license, this argument fails. Byway of background,Alcohol Beverage Control Law 9 64 (7) (9permits the SLA to issue a liquor licenseto premises that would be locatedwithin five hundredfeet of three or more existing licensed premises only if, after consultationwith the municipalityorcommunity board, the SLA determinedthat granting such a licensewould be in the public interest. Alcohol Beverage Control Law 5 64 (7) (f) requires the SLA to conduct a hearing, on notice to the applicant and the community board. In Cleveland Place Neighborhood Association v New York State Liquor Aufhority(268AD2d 6 [lSfDept 2000]), the Appellate Division ruledthat a hearing was also required pursuant to Alcohol Beverage Control Law 3 64 (7) (9 before determiningwhether to grant an applicationfor transfer of a liquor license. Contrary to petitioner scontention, ClevelandPlace NeighborhoodAssociation did not hold that a hearing was required before the SLA determinedwhether to grant renewal of a liquor license. On the contrary, Alcohol Beverage Control Law 5 64 (7) (f) specifically states, No premises having been granted a license pursuant to this section shall be denied a renewal ofsuch license upon the grounds that such premises are within five hundred feet of a building or buildings (Continued , . . ) [* 4] Fleischer v New York State Liquor Aufh., Index No. 110410/2011 wherein three or more premises are licensedand operating pursuantto this section and sections sixty-four-a,sixty-four-b, sixty-four-c,and/or sixty-four-d of this article. The language that petitioner quotes from ClevelandPlace NeighborhoodAssociafion for the proposition that hearing was required is taken out of context. To the extent that petitioner argues that SLA should have waited for CB2 s recommendation as to whether La Esquina s liquor license should be renewed, this argument i unavailing. CB2 unequivocallywaived its right to object to the renewal on the s ground of untimely notice to the community board. Itwas not an abuse of discretion for SLA not to honor CB2 s requestthatthe SLAdefer its decision to renew La Esquina s liquor license until after CB2 s resolution. Petitioner s reliance upon Alcohol Beverage Control Law 5 110-b (5) is misplaced. Alcohol BeverageControl Law 5 1IO-b(5) became effective on September 23,2011, after the SLA decided to renew La Esquina s liquor license. Even if the SLA had considered CB2 disapproval of the renewal, the Court of Appeals held that the SLA may not deny an application for an initial liquor licensed based only on vigorous protests and objections voiced by local civic groups, religious organizations, community residents and their elected officials. (Matterof Circus Disco Lfd. v New York State Liquor Aufh., 51 NY2d 24, 38 [I 9801.) Petitioner must therefore demonstrate more than community opposition to demonstratethat the SLA s decision to renew La Esquina s liquor license was arbitrary and capricious, or lacking a rational basis. Petitioner ssubmissions include newspaper articles, blog excerpts and petitioner s own submissions, which the SLAconsidered as lack[ing] even a minimal standard of reliability to warrant denial of La Esquina s renewal application. Under the circumstances presented, petitioner has not demonstrated that SLA s refusal to consider to her submissions was arbitrary or irrational. Although Alcohol Beverage Control Law 5 106 (6) prohibits a licensee selling alcoholic beverages to suffer or permit such premises to become disorderly, [clonduct is not sufferedor permitted unless the licenseeor his manager knew or should have known of the asserted disorderly conditionon the premises and tolerated its existence. (Playboy Club ofNew York, lnc. v State LiquorAufh., 23 NY2d 544, 550 [1969].) Petitioner s submissions fall short of this standard. The SM sdecision to renew the liquor license notwithstanding La Esquina s prior adjudicated adverse history-i.e., SLA s record of adjudicated offenses that a licensee accumulates over time-was notan abuse of discretion. According to the SLA, Esquina s La record is neither exemplary nor egregious. It is in the broad middle. (MartinAffirm. TI 107.) Petitionerdisagrees that La Esquina should fall in the broad middle, and contends that [Uf La Esquina srenewal cannot be denied, no renewal can be denied. However, the Court may not substitute its own judgment for that of the agency, particularlywith respect to matters within its expertise. (City Services, lnc. vNeiman 77AD3d 505,507 [Ist Dept 20103;see also 330 Restaurant Corp. v State LiquorAufh., 26 NY2d 375,378 [I [ A 9701 reviewing court will not substitute its judgment for the considered judgment of an . (Continued . . ) Pngc4 of 5 [* 5] F/eischer v New York State Liquor Auth., Index No. 1104101201 I adminjstrative tribunal if there is such relevant evidenceas a reasonable mind might accept as adequate to support a conclusion ].) The gravamen of the petition is that SLA s history of dealing with petitioner s complaints about La Esquina demonstrates a pattern of conductwith respect to the LLC [La Esquina] that i arbitrary and capricious, an abuse of discretion, and in legal error. s (Verified Reply 7 8.) However, petitioner s complaints about the pace of SLA s investigations into complaints or its alleged abandonment of enforcement duties are beyond the scope of this Article 78 proceeding. Petitioner s remaining arguments are without merit. SLA s alleged conductwith respectto petitioner s Freedom of Information Law requests are irrelevant to this Article 78 petition. 1. Check one: ................................................................ 2. Check If appropriate: ............................ 3. Check if appropriate: ................................................ CASE DISPOSED DENIED l GRANTED L L NON-FINAL DISPOSITION 1 L? GRANTED IN PART fl OTHER L-1SETTLE ORDER SUBMIT ORDER L1 DO NOT POST L1FIDUCIARY APPOINTMENT L 1 REFERENCE UNFILED JUDGMENT f.(O)N, MSCHAEL D hSTALLMA~i Thls Judgmenthas not been entered bv the County Clerk and noti& ofentry cannot be served based hereon. To -En entry, mnsel or authorized representative mud in pwscnl a Ihe Judgment clerk s Dssk (Room t 14my Page 5 of 5

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