Summary
In Matter of Daigle v New York State Liq. Auth., (35 A.D.2d 901), the petitioners argued that their petition did not raise any issues as to substantial evidence, and that the only question involved is whether the determination of the Liquor Authority was arbitrary and capricious.
Summary of this case from O'Brien v. Barnes Bldg. Co.Opinion
November 30, 1970
Appeal by the New York State Liquor Authority from a judgment of the Supreme Court at Special Term, entered May 1, 1970 in Tompkins County, which annulled the determination of appellant. The petitioners contended at Special Term that their petition did not raise any issues as to substantial evidence and they reiterate that argument in this court and rely upon the assertion that there was not "a scintilla of evidence to support the Authority's charge." This article 78 proceeding seeking to annul a determination of the State Liquor Authority should have been transferred by Special Term to this court for the initial review of the Authority's determination. (See CPLR 7804, subd. [g].) Special Term, however, elected to conduct a hearing to determine pursuant to section 7803 (par. 3) whether the determination including the penalty imposed was arbitrary and capricious or an abuse of discretion. The cases relied upon by Special Term for its authority apply to applications for a new or renewal license in which instance the arbitrary and capricious standard is applied. (See Matter of Moltzen v. Hostetter, 24 A.D.2d 1018, 1019, affd. 18 N.Y.2d 629; Matter of Rochester Colony v. Hostetter, 19 A.D.2d 250.) The case having finally reached this court, we treat it as though it was properly transferred and this court may dispose of all the issues de novo, applying the substantial evidence test (CPLR 7804, subd. [g]; cf. Matter of Glen Springs Corp. v. Hager, 272 App. Div. 652; Matter of D.H.K. Rest. v. New York State Liq. Auth., 31 A.D.2d 525). This court determines that there is substantial evidence to support Charges No. 1, No. 2, No. 4, No. 5, No. 6, No. 7(a), No. 7(b) and No. 11, and there is not sufficient evidence to sustain Charges No. 3, No. 8 and No. 9. The remaining issue concerns the imposition of revocation of the petitioners' license. From August 15 through December, 1967, the evidence taken in its entirety shows an utter disregard for the laws, rules and regulations as applied to the licensed premises and while three of the charges are not sustained, the remaining eight demonstrate a pattern of operation which would justify the Authority's determination that such practice could only be eliminated by revocation of the petitioners' license. Judgment reversed, on the law, determination confirmed and petition dismissed, without costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.