Mulligan's Night Club & Cafe, Inc. v. Buffalo Common Council ( 1992 )

Determination annulled on the law without costs and petition granted. Memorandum: In this CPLR article 78 proceeding, which was transferred to our court pursuant to CPLR 7804 (g), petitioners, the operators of a restaurant and night club, seek review of the determination of the respondent Buffalo Common Council which revoked their dance license pursuant to Buffalo Code § 150-15 (B). The resolution, which noted that petitioners had failed to comply with certain terms and conditions of the license, was based upon findings referred to the Common Council by its Committee on Legislation (the Committee). Review proceedings and a public hearing on petitioners’ dance license were conducted by the Committee on three occasions between April and July of 1990. Petitioners contend that the resolution and the Committee’s report and findings are not supported by substantial evidence in the record.

Pursuant to chapter 150 of the Buffalo Code, public dancing in a restaurant is permitted only by license issued with the consent of the Common Council. The Common Council also retains the power to revoke such a license "for any reason which it deems sufficient” (Buffalo Code § 150-15 [B]). As we have previously noted in an analogous case, the Common Council’s authority in such matters is left to its " 'untrammeled discretion’ ”, provided it acts reasonably and does not exercise its discretion capriciously (Matter of Turgeon v Buffalo Common Council, 78 AD2d 774). Under these circumstances, reasonableness requires only that the determination be based on substantial evidence (see, Matter of Turgeon v Buffalo Common Council, supra; Matter of Milky-Way Lounge v Veteran, 72 AD2d 566, lv denied 48 NY2d 609).

Whether an administrative determination is supported by substantial evidence presents a question of law (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 181; Matter of Clark v Board of Zoning Appeals, 301 NY 86, 90-91, cert denied 340 US 933). The inquiry is whether the whole record contains proof of "such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably— probatively and logically” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, supra, at 181). In order to assure the parties that such a determination is "based on evidence of record, uninfluenced by extralegal considerations, findings of fact in some form [are] essential so as to permit intelligent challenge by a party aggrieved and adequate judicial review following the determination” (Matter of Simpson v Wolansky, 38 NY2d 391, 396).

Because the Common Council and the Committee, upon whose findings its resolution was based, resorted to matters extraneous to the record, no such assurance can be had in this case. Here, the Committee’s findings made specific reference to evidentiary sources outside those adduced at the license review and revocation proceedings. For example, reference was made to correspondence and police records not before the Committee to substantiate two violations. In another, the Committee listened to a tape recording, but the record fails to include the tape or a transcript of that recording. Although the premises were not inspected by the city during the review-revocation process, the Common Council resolved that petitioners failed to substantiate installation of the sound-proofing materials required by the license because of their failure to secure a permit for that work. In further support of its findings on the deficiency of the sound-proofing improvements, the Committee looked beyond the record to matters such as the total number of complaints made to the police about noise during the seven-month period while the license review procedure was being conducted. These instances are merely illustrative, not exhaustive.

It was error for the Common Council and the Committee to resort to evidence and information outside the record (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, supra, at 181; Matter of Simpson v Wolansky, supra, at 396), a practice that makes judicial review of the determination impossible. Thus, we conclude that the Common Council’s determination revoking petitioners’ dance license is not supported by substantial evidence and must therefore be annulled.

We have considered petitioners’ due process and constitutional claims and find them to be without merit (see, Matter of Green Point Sav. Bank v Board of Zoning Appeals, 281 NY 534, 538, appeal dismissed 309 US 633; Matter of Aprile v Lo Grande, 89 AD2d 563, affd 59 NY2d 886; Matter of Turgeon v Buffalo Common Council, supra).

All concur, except Boehm, J., who dissents and votes to confirm in the following Memorandum.