Franklin v. State Liquor Authority ( 1962 )

Order unanimously reversed and proceeding dismissed, without costs of this appeal to either party. Memorandum: The petitioner brought this proceeding under article 78 of the Civil Practice Act to review so much of the order of the State Liquor Authority as imposed a ban upon licensing of the petitioner’s premises for a period of two years. We agree with the State Liquor Authority that the petitioner, as the landlord of the premises, was not entitled to be made a party to the proceeding to revoke the tenant’s license and that he was not entitled to review the order of revocation. The Authority had the right, in its discretion, to impose the ban upon the premises upon the revocation of the tenant’s license, under section 113 of the Alcoholic Beverage Control Law. (Matter of Colucci v. O’Connell, 281 App. Div. 907, motion for leave to appeal denied 305 N. Y. 929; Matter of Colucci, 283 App. Div. 964, appeal dismissed 307 N. Y. 845.) The Authority gave the petitioner a full opportunity to bring to its attention any facts bearing upon the exercise of its discretion with respect to the proposed ban upon the premises, and the petitioner has no ground for complaint in that regard. The petitioner had the right to review the order imposing the ban upon his premises in this article 78 proceeding, in the nature of mandamus, and to challenge the order as arbitrary or capricious or as an abuse of discretion (cf. Civ. Prac. Act, § 1296, subd. 5-a; Matter of Mitthauer v. Patterson, 8 N Y 2d 37). But the burden was on the petitioner to establish that the order was arbitrary or capricious or that a triable issue of fact existed in that regard (Matter of O’Brien v. Commissioner of Educ., 3 A D 2d 321, appeal dismissed 4 N Y 2d 140; Matter of Gambino v. State Liq. Auth., 4 A D 2d 37, affd. 4 N Y 2d 997). He failed to sustain that burden, and therefore the petition must be dismissed. (Appeal from order of Erie Special Term denying application to dismiss the petition and granting petitioner’s application to review determination revoking restaurant liquor license with no new license for said premises for 24 months and reversing the determination insofar as it affected petitioner’s premises.) Present — Williams, P. J., Bastow, Halpern, McClusky and Henry, JJ.