Matter of Bracco's Clam & Oyster Bar Inc. v New York State Liq. Auth.

[*1] Matter of Bracco's Clam & Oyster Bar Inc. v New York State Liq. Auth. 2016 NY Slip Op 51279(U) Decided on September 6, 2016 Supreme Court, New York County Bluth, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 6, 2016
Supreme Court, New York County

In the Matter of the Application of Bracco's Clam & Oyster Bar Inc., Petitioner, For a Review Pursuant to Article 78 of the CPLR

against

New York State Liquor Authority, Respondent.



101337/16



Petitioner:

Mehler & Buscemi Esqs.: New York, NY

Respondent:

New York Liquor Authority: New York, NY
Arlene P. Bluth, J.

The petition by petitioner pursuant to Article 78 of the CPLR, brought by order to show cause, seeking to vacate and annul a determination by respondent, dated August 16, 2016, to summarily suspend petitioner's on-premises liquor license and for an order staying and restraining respondent from enforcement of said summary suspension pending the final determination of this proceeding is denied and the petition is dismissed.

Background

This action arises out of an emergency summary order of suspension of petitioner's liquor license on August 16, 2016 issued by respondent. Respondent claims that there was a full board meeting where it was determined that an emergency license suspension was required to protect public health, safety and welfare. Respondent alleges that petitioner operates Bracco's Clam & Oyster Bar (Bracco's) located at 319 Woodcleft Avenue, Freeport, NY.

Respondent claims that the summary suspension occurred after numerous incidents at Bracco's. Respondent contends that Freeport police have responded to Bracco's 117 times since May 2015. Respondent further alleges that Bracco's hosted an illegal musical performance by [*2]Curtis Jackson (a/k/a 50 Cent) and that Bracco's permitted nudity and lewd and indecent conduct at its establishment.

Petitioner vigorously contests these allegations and claims that it did not permit any lewd or indecent actions.

After oral argument before Justice Katz on August 19, 2016, Justice Katz signed petitioner's order to show cause, but declined to grant petitioner's request to stay and restrain respondent from enforcing the summary suspension order pending determination of the order to show cause. At oral argument before this Court on September 6, 2016, the parties informed the Court that the administrative proceedings before the Liquor Authority regarding the suspension of petitioner's liquor license began on September 1, 2016 and remain ongoing.

Discussion

The New York State Administrative Procedure Act § 401(3) provides that:

"If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered, effective on the date specified in such order or upon service of a certified copy of such order on the licensee, whichever shall be later, pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined."

"An agency action must be final and binding before an aggrieved party may seek judicial review under Article 78 (Boxers Enters. LLC v The New York State Liquor Auth., 2012 NY Slip Op 32482(U), 2012 WL 4752441 [Sup Ct, NY County 2012] [citing CPLR 7801[1]]). "The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury" (Church of St. Paul and St. Andrew's v Barwick, 67 NY2d 510, 519, NYS2d 24 [1986]).

"Generally, one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136, 141, 638 NYS2d 388 [1995] [internal quotations and citation omitted]).

"[A] summary suspension order does not constitute a final judgment and lacks preclusive effect vis-a-vis subsequent licensee disciplinary proceedings" (150 RFT Varick Corp. v New York State Liquor Auth., 117 AD3d 575, 576, 986 NYS2d 102 [1st Dept 2014]).

Respondent claims that it issued the summary suspension pursuant to State Administrative Procedure Act § 401(3). Respondent argues that petitioner's petition should be dismissed because respondent has not issued a final judgment and, therefore, petitioner has failed to state a cause of action upon which relief may be granted. Respondent claims that petitioner has an opportunity to contest the summary suspension at an evidentiary hearing scheduled to begin on September 1, 2016.

Respondent's assertions are correct. Petitioner's petition asks this Court to review respondent's issuance of a summary suspension. Because a summary suspension is not a final judgment, the Court does not have subject matter jurisdiction and the petition must be dismissed. Petitioner is, of course, entitled to bring an Article 78 action against respondent once a final determination is made regarding petitioner's liquor license. Accordingly, the petition is dismissed (see CPLR 7804[g]).

Petitioner also seeks to stay and restrain respondent from enforcing the summary suspension order pursuant to Alcoholic Beverage Control Law § 121, which provides that:

"The following actions by the liquor authority shall be subject to review by the supreme court in the manner provided in article seventy-eight of the civil practice law and rules provided that no stay shall be granted pending the determination of the matter except on notice to the liquor authority and for a period not exceeding thirty days: . . . 2. The revocation, cancellation or suspension of a license or permit by the liquor authority."

The statute cited by petitioner does not permit the Court to review a summary suspension. "A statute must be construed so as to effectuate the intent of the Legislature, and the clearest indicator of the legislative intent is the plain meaning of the language" (Bovis Lend Lease LMB, Inc. v Royal Surplus Lines Ins. Co., 27 AD3d 84, 90, 806 NYS2d 53 [1st Dept 2005]). The statute states that the Supreme Court can review the liquor authority's suspension of a license. Here, respondent has only summarily suspended petitioner's license and claims that there will be further proceedings regarding the license suspension. Respondent issued the summary suspension on August 16, 2016 and claimed at oral argument that a hearing before the Liquor Authority began on September 1, 2016 and remains ongoing. This complies with State Administrative Procedure Act § 401(3), which requires that there be prompt proceedings. In light of the foregoing facts, the Court does not find that respondent violated the State Administrative Procedure Act's summary suspension provision or that petitioner is entitled to a stay pursuant to Alcoholic Beverage Control Law § 121. In any event, this request is moot given that the petition is dismissed.

Accordingly, it is hereby

ORDERED that petitioner's petition is dismissed; and it is further

ORDERED that petitioner's request for a stay of the summary suspension order is denied.

This is the Decision and Order of the Court.

Dated: September 6, 2016

New York, New York

HON. ARLENE P. BLUTH, JSC