Summary
In Matter of Agoglia v. Mulrooney (259 N.Y. 462), one of the circumstances influencing denial of a cabaret license was the propinquity of the premises to a school.
Summary of this case from Matter of Playboy Club v. O'ConnellOpinion
Argued June 2, 1932
Decided July 19, 1932
Appeal from the Supreme Court, Appellate Division, Second Department.
Arthur J.W. Hilly, Corporation Counsel ( J. Joseph Lilly and Milton I. Hauser of counsel), for appellant. Jacob Shientag for respondent.
Local Law No. 12, enacted in 1931 by the Municipal Assembly of the city of New York, prohibits the operation of a public dance hall or a cabaret without a license issuable by the Police Commissioner. No such license shall be issued unless, among other things, the place sought to be licensed "in the opinion of the Police Commissioner is a safe and proper place to be used as a public dance hall or a cabaret." It is not without significance that the law in question transferred jurisdiction over the issuance of dance hall and cabaret licenses from the Department of Licenses to the Police Commissioner.
Petitioner herein applied for a cabaret license. The Police Commissioner refused to issue it because in his opinion the place sought to be licensed was not a safe and proper one to be used as a cabaret. This refusal has been held by the Special Term and by the Appellate Division to have been capricious and unreasonable. The Police Commissioner has been commanded by a peremptory order of mandamus forthwith to issue and deliver the license applied for.
We learn from the petition itself that in the immediate neighborhood of the petitioner's premises there are four pool rooms in operation; also that within a few hundred feet is located a public school. The Superintendent of Schools in a letter to the Police Commissioner opposes issuance of the license because of the propinquity of the proposed cabaret to the school. The decision of the Police Commissioner was based upon a consideration of those facts as well as upon records of the Police Department and certain reports received through regular police channels, the exact purport of which does not appear. Under such circumstances the refusal of the Commissioner of Police to issue the license can hardly be said to have been capricious or unreasonable. The petitioner has, therefore, shown no clear legal right, and the Commissioner's opinion, rather than that of the courts, must control. ( People ex rel. Schwab v. Grant, 126 N.Y. 473, 481; People ex rel. Empire City Trotting Club v. State Racing Comm., 190 N.Y. 31, 33; Matter of Ormsby v. Bell, 218 N.Y. 212, 216; Lang's Creamery, Inc., v. City of Niagara Falls, 251 N.Y. 343, 346, 347.)
The orders should be reversed and the motion for peremptory mandamus denied, with costs in all courts.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Orders reversed, etc.