C. Van Deusen, Inc. v. New York State Liquor Authority

• Decision Date: 25 October 1965
• Citation: 263 N.Y.S.2d 984,47 Misc.2d 1094
• Parties: Application of C. VAN DEUSEN, INC., Petitioner, v. The NEW YORK STATE LIQUOR AUTHORITY, Melville A. Kelsey, Jr., d/b/a Colonial Liquor Store, North Fork Liquor Corp., Peter Kreh, Jr., Joseph Keener and Suffolk County Alcoholic Beverage Control Board, Respondents.
• Court: New York Supreme Court

Page 984

263 N.Y.S.2d 984

47 Misc.2d 1094

Application of C. VAN DEUSEN, INC., Petitioner, v. The NEW YORK STATE LIQUOR AUTHORITY, Melville A. Kelsey Jr., d/b/a Colonial Liquor Store, North Fork Liquor Corp. Peter Kreh, Jr., Joseph Keener and Suffolk County Alcoholic Beverage Control Board, Respondents.

Supreme Court, Special Term, Nassau County, Part I.

Oct. 25, 1965.

Robert W. Corcoran, Hicksville, for petitioner.

Cruser & Hills, Riverhead, for respondents Kreh and Keener.

Hyman Ansel, New York City, for respondent Liquor Authority.

BERNARD S. MEYER, Justice.

In this proceeding pursuant to §§ 123 and 124 of the Alcoholic Beverage Control Law, petitioner sought review of the issuance of licenses to three named respondents. The Authority and the licensee-respondents asked dismissal of the petitioner and the court, reasoning that factual rather than conclusory allegations are required and that 'a case can be made out only by showing what was in fact before the Authority when it made its determination,' granted the motion to dismiss with leave to replead. The order entered September 29, 1965 on that decision directed the Authority to make available for inspection by petitioner the papers upon which the application of the licensee-respondents were approved. Though no objection was imposed to that provision of the order at the time of its settlement, the Authority has appealed from that part of the order and now moves to modify the order by deleting it. The Authority points to no provision of law enjoining secrecy as to the records in question. Rather it rests upon the general rule that discovery cannot be ordered against the state.

Indelibly engraved in the law governing the Authority is the principle that it must decide each application on its own merits and find before granting the application that public convenience and advantage will be promoted. The Court of Appeals so held in Matter of Hub Wine & Liquor v. State Liq. Auth., 16 N.Y.2d 112, 119, 262 N.Y.S.2d 457, 461, 209 N.E.2d 788, 790, and the legislature emphasized the requirement in enacting Chapter 1024 of the Laws of 1965, Alcoholic Beverage Control Law, §§ 63, subd. 6, 79, subd. 4, which, as the Governor noted in his approval message (McKinney's Session Law News, A-322), 'reaffirms the duty of the Authority * * * to be guided by public convenience and advantage in making its license determinations.' That duty may be enforced with respect to a license issued contrary to the recommendation of the local board, or when the recommendation of the local board was not unanimous, or with respect to a removal application, in an Article 78 proceeding, Alcoholic Beverage Control Law, § 121. Issuance of a new license where, as in the instant case, the local board has unanimously approved the application is, however, subject to review only in a proceeding under §§ 123 and 124 of the Alcoholic Beverage Control Law. If the Authority cannot be compelled in such a proceeding to reveal its records, the duty imposed upon it by the legislature becomes unenforcible. Legislative policy may not be so easily frustrated.

Essentially the Authority's argument is that it is the sole judge whether it has issued a license without considering public convenience and advantage because there is no procedural means of requiring it to divulge what it has done. Without pausing to characterize the philosophy of government underlying that argument, the court notes that there are both statutory and common law bases for directing the Authority to disclose its records and that the cases upon which the Authority relies are for the most part distinguishable.

The first statutory basis is § 124 of the Alcoholic Beverage Control Law, for by the direction that the Authority be made a party to the proceeding authorized by § 123, the legislature made the proceeding one in which the Authority 's action could be reviewed and an illegally issued license revoked. The establishment of a policy and a procedure for review coupled with the failure to denominate Authority records confidential bespeaks legislative intention that the records to...