Matter of Marikleve, Inc. v New York State Liquor Auth.
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Matter of Marikleve, Inc. v New York State Liquor Auth. 2012 NY Slip Op 32690(U) October 24, 2012 Supreme Court, New York County Docket Number: 103304/12 Judge: Carol E. Huff 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] SCANNED ON 1012612012 d SUPREME COURT OF THE STATE OF NEW YORK k ?RESENT: - NEW YORK COUNTY PART Justice 32 / /t330Y4z INDEX NO. MOTION DATE MOTION SEQ. NO, L/c"ucj,c /j " 7/5/89 n 7y The following papers, numbered 1 to ai MOTION CAL. NO. were read on this motion to/for PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - Affidavits - Exhibits ... - Exhibits Replying Affidavits Cross-Motion: Yes No Upon the foregoing papers, it is ordered that this W U bet 2 4 20Q Iated: CAROL E, HUFF :heck one: 0 NON-FINAL DISPOSITION E DO NOT POST 0 REFERENCE [t9' FINAL DISPOSITION Zheck if appropriate: u SUBMIT ORDER/ JUDG, n SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O R K :PART 32 In the Matter of the Application of MARIKLEVE, JNC., Petitioner, : Index No. 103304/12 : For a Judgment Pursuant to Article 78 of the Civil Practice : Law and Rules, - against - THE NEW YORK STATE LIQUOR AUTHORITY, Respondents. : CAROL E. HUFF, J.: In this Article 78 proceeding, petitioner seeks to annul the determination of respondent New York State Liquor Authority, dated May 22,2012, denying petitioner s application for an off-premises liquor store license, and also seeks an order directing the Liquor Authority to issue the license. On May 23, 201 1, petitioner applied to open its store at 32-15 33 d Street in Astoria, Queens. After respondent denied the application on December 5,201 1, petitioner requested reconsideration. On May 22,ZO 12, respondent denied the reconsidered application, attaching a written determination dated May 17, 2012 (the Determination ). Petitioner states that its intention was to offer a broader selection of Greek and New York regional wines than was available in the traditionally Greek neighborhood. Four other package stores exist within approximately a quarter mile of the proposed site. Alcoholic Beverage and Control Law 0 6316) provides: Determinations . . . with respect [* 3] Public convenience necessarily refers to the accessibility of stores and involves coilsiderations of distance, overcrowding of present facilities, etc. Public advantage is a broader term which brings into play social and similar problems, and involves the State s general policy as to the sale of alcoholic beverages for offpremises consumption. That general public policy, as stated in section 2 of the Alcoholic Beverage Control Law, is to regulate the manufacture and distribution of alcoholic beverages for the purpose of fostering and promoting temperance and respect for and obedience to law. Forrnan v New York State Liquor Auth., 17 NY2d 224,230 (1966). In the Determination, respondent stated that, To make this determination [as to public convenience and advantage] the Authority considers whether the area is sufficiently served by the existing package stores. As part of that review, the Authority looks, among other things, at the proximity of the existing licensed stores to the applicant s location, the gross sales of the nearest liquor stores, population or demographic changes, and whether the applicant will offer products or services not currently provided by the existing licensees. Determination at 1. Petitioner states that it agrees with these standards, but that respondent, when making its decision, failed to consider evidence submitted by petitioner. For example, the Determination states: There was nothing submitted with the application to indicate whether the business would offer products or sewices not available in the package stores that currently serve the area. Determination at 1. The Determination further states: The applicant was offered an opportunity to submit a list of products that it would sell that would distinguish the applicant s business from the nearby package stores. The applicant -2- [* 4] declined to provide such a list. . . . Determination at 6 fn 5. Petitioner points out that, in fact, its attorney offered respondent lists of more than one hundred Greek wines and additional New York regional wines. Transcript, 11/212 at 9, It also contends that respondent ignored evidence that the sales figures of neighboring package stores was increasing, and that the population of the neighborhood was increasing despite a controversial decline reported in the last census report. With respect to the sales figures, the Determination did cite the figures produced by those businesses in response to petitioner s application, and accurately found that there did not appear to be any significant overall increase in the demand for their products in the community. Determination at 3. With respect to local population growth, respondent found, [Wle did not rely on a finding that the population was declining. Instead, we noted that there was no evidence that the population was changing in any manner that would warrant another package store. Petitioner s letters from real estate brokers and an unofficial population growth chart are not sufficient to challenge this finding. With respect to product differentiation, although respondent apparently did disregard petitioner s evidence regarding its intended list of products, it did find accurately that some Greek wines were offered at the other package stores. The denial of petitioner s license application will be upheld unless it is shown that the Determination was affected by an error of law . . . or was arbitrary and capricious or an abuse of discretion. CPLR 7803(3). The test is whether the determination is without sound basis in reason and is generally taken without regard to the facts. Pel1 v Board of Educ. of Union Free -3 - [* 5] School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222,23 1 (1974). An administrative agency, acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency s determination is supported by the record. Partnership 92 LP & Bld. Mgt. Co. Vv State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425,429 (1 Dept 2007), aff d 11 NY3d 859 (2008). The underlying rationale of the Determination is that granting a license to petitioner s package store was not in accordance with pubi*lcconvenience and advantage when four package stores that already existed within a quarter mile of the site adequately supplied the community s needs. Because the Determination is not lacking in reason or taken without regard to the facts, it is ADJUDGED that the petition is denied and the proceeding is dismissed. J.S.C. -4-
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