Brenner v. O'Connell

Conway, Ch. J.

On November 21, 1952, the appellant submitted a written request to the State Liquor Authority to accept an application for a package liquor store license in the village of Massapequa Park in Nassau County. The basis for this request was the allegation that there had been a decrease of one retail liquor store license in the County of Nassau between 1948 and 1952. Shortly thereafter the Authority notified appellant that his request was being held in abeyance pending the completion of a survey of New York City, Nassau, Suffolk and Westchester Counties.

Before the completion of that survey the appellant commenced an article 78 proceeding on December 12, 1952, seeking an order directing the Authority to permit the local board in Nassau County to accept and consider appellant’s application for a license. The Authority moved to dismiss the petition, and the motion was granted. The Appellate Division affirmed, pointing-out that since the Authority had as then made no final determination on the application of November 21, 1952, the petition of December 12th was premature. (282 App. Div. 742-743.)

On July 20,1953, after the Authority had completed its survey, it notified appellant that his request of November 21, 1952, was denied. Thereafter, on September 9, 1953, the Authority approved the removal of an existing licensee from Bayville to the section of Massapequa Park in which appellant had sought to open his store. On September 16,1953, appellant commenced the present article 78 proceeding- seeking an order directing the Authority to permit the local board in Nassau County to consider his application. That petition was dismissed by Special Term, and the Appellate Division has affirmed unanimously.

Subdivision 2 of section 17 of the Alcoholic Beverage Control Law gives the State Liquor Authority the power, jurisdiction and duty “ To limit in its discretion the number of licenses of each class to be issued within the state or any political subdivision thereof, and in connection therewith to prohibit the acceptance of .applications for such class or classes of licenses which have been so limited ” (emphasis supplied).

Buie 17 of the Buies of the State Liquor Authority — promulgated pursuant to the authorization of subdivision 2 of section 17 (supra) — stated, in part, that: “in the judgment of the Authority and in the exercise of the discretion vested in it by law, it is determined that public convenience and advantage are now adequately served by the number of premises licensed ’’ (snbd. 1).

It was therefore determined by that rule (subd. 2), “ that the number of licenses issued pursuant to section 63 and section 79 of said law [i.e., the Alcoholic Beverage Control Law] be limited to the number in each political subdivision as set forth on the annexed schedule, and that no application for a license under either of said sections be accepted by any local board while the aforesaid number of said licenses shall be in effect ” (1 N. Y. Official Compilation of Codes, Bules & Begulations, p. 757; emphasis supplied).

The schedule of political subdivisions referred to in the last paragraph is a schedule of counties. It is clear, therefore, that the term “ political subdivision ” refers to a “ county ”, and not to a “ village ”, a “ town,” a “ township ” or other political subdivision. That this meaning of that term is the correct one to be applied here is further evidenced by the definition of the “ local board ” under the Alcoholic Beverage Control Law. Section 30 of that law provides for the establishment of an alcoholic beverage control board in every county of the State, and then provides that the boards so constituted “ shall be referred to and designated as local alcoholic beverage control boards ” (emphasis supplied).

The meaning of “ political subdivision ” is important, for if that subdivision were the town, the village or the township, then the transfer of the license from Bayville to Massapequa Park might well involve an increase in the number of licenses in that subdivision. If, on the other hand, the term “ political subdivision ” as it is used in the statute and in the rules herein means “ county ”, then there was no increase in the number of licenses in Nassau County when the retailer was permitted to move from Bayville to Massapequa Park. Not only is it clear from the statutory scheme of “local” county boards, and from the schedule of “political subdivisions ” listed in rule 17, that that term applies to and is intended to mean “ county ”, but that meaning facilitates and is in complete harmony with the policy of the entire Alcoholic Beverage Control Law. That policy is “ to regulate and control the manufacture, sale and distribution within the state of alcoholic beverages for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to law ” (Alcoholic Beverage Control Law, § 2).

To hold that, in a county such as Nassau, with its numerous, overlapping villages, towns and other communities, the term ‘ ‘ political subdivision ’ ’ meant other than ‘‘ county ’ ’ would not tend to aid in carrying out the statutory policy, but would result in innumerable administrative difficulties since the number of local boards would be, likewise, innumerable. It is far better to hold that the intended subdivision is the county — for then the local county board can attempt to formulate an over-all plan for the distribution of retail liquor stores which would be exceedingly difficult — if not impossible — to do were the local unit — for example — the village. The desired goal of limiting liquor consumption would likewise be vastly facilitated by considering the county as the “ political subdivision ” rather than some smaller unit. This is particularly true in our State where our network of roads permits persons to travel easily and quickly from town to town, from village to village, and thus makes the unit for effective administrative control of liquor consumption an area larger than the town or village. The Legislature has chosen to make that subdivision the county in setting up local boards, and there is no sound reason for now adopting some other interpretation.

For these reasons we are unable to agree that it was arbitrary and unreasonable for the Authority to have denied the appellant’s request. The survey made by the Authority had only recently revealed that the number of premises licensed to sell liquor in Nassau County was sufficient for the public convenience and advantage in that county. By permitting the transfer of the business of an already-licensed retailer within that county, and by refusing to license new retailers, the number of retailers was kept constant. So far as the appellant is concerned it is immaterial why the retailer was permitted to move from Bay-ville in Nassau County to Massapequa Park in Nassau County, so long as in denying his application the Authority acted within its legal competency. In view of the meaning of the words “ political subdivision ”, and because the action of the Authority— based upon a recently concluded survey of conditions in that county — does not in fact increase the number of retailers in Nassau County, the action taken by the Authority upon appellant’s request cannot be said to have exceeded the limits of a reasonable exercise of the discretion vested in the Authority by the Alcoholic Beverage Control Law (§ 17, subd. 2), in refusing to increase the number of licensed retail liquor stores in Nassau County by permitting the appellant to open another store in that county. Our decision in Matter of Barry v. O’Connell (303 N. Y. 46) in no way diminishes the accuracy of this conclusion, for the precise issue in that case was whether or not the grounds set forth in the notice of disapproval of the appellant’s application there were legally sufficient to support the determination reached. We held that they were not.

The order should be affirmed, with costs.