Carroll v. Hastings
| Decision Date | 09 December 1977 |
| Citation | 93 Misc.2d 390,402 N.Y.S.2d 279 |
| Parties | Anthony CARROLL, d/b/a the Centurion Lounge, Petitioner, v. Thomas F. HASTINGS, Individually and as Chief of Police of the City of Rochester, Lt. Norman R. Knapp, Individually and as Commanding Officer of Coordination and Communication Section and Detective/Supervisor Donald J. Bunce, Individually and as Officer of the Central License Section of the City of Rochester, and the City of Rochester, New York, Respondents. |
| Court | New York Supreme Court |
This is a proceeding, pursuant to CPLR Article 78, to review a determination of the respondent agents and employees of the City of Rochester denying petitioner's application for an entertainment license.
Petitioner is doing business as The Centurion Lounge in premises at 1363 North Goodman Street in the City of Rochester It appears (from attachments to two affidavits submitted by respondent Bunce) that petitioner's business at that address is a restaurant and bar.
At some unspecified date prior to July 18, 1977 petitioner applied for a Class D amusement license (issued by the City of Rochester) for the said premises. Neither petitioner's license application nor any copy thereof has been made a part of the papers before the court. Nor has the court been apprised of the kind or kinds of amusement or entertainment for which the license was sought.
The Code of the City of Rochester ( § 29-20) divides "public amusements" into five classes as follows:
Class A All entertainments of a theatrical, dramatic, vaudeville, variety or spectacular character and entertainments given in motion picture theaters;
Class A-1 All entertainments of a theatrical, dramatic, vaudeville, variety or spectacular character and entertainments given out-of-doors which may be viewed or witnessed by spectators while remaining in vehicles;
Class B Skating carnivals, exhibitions or entertainments; basketball games; hockey and lacrosse games; wrestling matches; soccer games; tournaments and similar activities;
Class C Circuses, carnivals, rodeos, wild-West shows and caravans;
Class D All exhibitions, performances or contests not included in any other class.
The Code further ( § 29-19) defines "public amusements" as any entertainment offered or operated "for gain or for admission to which the public is required to pay a fee" and provides ( § 29-21) generally that no public amusement may be offered or operated without obtaining a proper license therefor, Sections 29-21(B) and 68-3 of the City Code provide that applications for amusement licenses shall be made to the Treasurer's office (in the Comptroller's Department) and shall contain such information as the Chief of Police may require. The license for a Class D amusement ( § 29-20) is called a "certificate of inspection" ( §§ 29-21(F) and 29-22(B)). In contrast to the licenses for Class A, Class A-1, Class B and Class C amusements, which are issued for the particular activities concerned, certificates of inspection are issued for the premises (defined as "public places of amusement") wherein Class D amusements are conducted. No place may be used or occupied as a public place of amusement unless it complies with the City Code provisions relating to buildings and health and the rules, regulations and orders of the Police Department relating to fire prevention and safety ( § 29-27(A)). A license or certificate of inspection is issued by the Chief of Police, but only after he certifies that the premises wherein the particular amusement is to be held comply with the provisions of the City Code and any "orders, rules or regulations" which the Chief of Police "may deem necessary" ( § 29-21(B)). No party has apprised the court of any such "orders, rules or regulations" promulgated by the police chief, so the court will assume that none such exist.
Petitioner's aforesaid application for a license (certificate) was denied in a writing, on the letterhead of the respondent chief of police, dated July 18, 1977. The letter of denial (which contained no reasons therefor) was addressed to petitioner from respondent Knapp, as commander of the (police department's) Coordination and Communication Section and was signed, on Knapp's behalf, by respondent Bunce of the Central License Section. No issue has been raised concerning the capacity of Knapp and/or Bunce to act on behalf of the respondent police chief (Hastings) and petitioner has chosen to treat the denial of his application as an action of the chief of police.
This proceeding was commenced by order to show cause and came before the court at Special Term on August 10th. Petitioner alleged that respondent's denial was arbitrary, capricious and contrary to law because (1) petitioner had a Class D amusement license for the subject premises for each of the preceding five years, (2) it was made without affording him a prior hearing, and (3) the respondent police officials were attempting to convert a licensing statute into a penal statute, so as to permit them to treat him indirectly in a manner in which they are prohibited from treating him directly. Respondent's counsel submitted a "Reply Affidavit" by respondent Bunce, sworn to August 9th, stating that the reasons for denial, as allegedly developed through police investigation and reported to respondent Hastings, included the following:
(A) first-hand information, from the affidavit of an FBI agent who was allegedly present, that at about 9:30 p. m. on August 30, 1976 the front door to the subject premises was locked, that thereafter an unlawful card game was conducted therein, that a named individual, a "member of organized crime in the City of Rochester and a known gambler," was the banker of said game and that Victor Carroll, petitioner's son and manager of the premises, was also present and approved of said unlawful card game;
(B) the "known" frequenting of the premises by "Members of Organized Crime" and the belief that criminal activities are discussed therein by said persons (14 of whom were named specifically);
(C) reports received by the police that drugs and stolen property are sold at the subject premises (reference being made to an "Attachment 5" (to an inter-departmental report) the contents of which were not made known to the court);
(D) apparent evidence (through an "Attachment 6" not shown to the court) that the subject premises were used by members of organized crime between April 1976 and July 1976 to attempt to bribe a police officer, as a result of which the aforesaid named individual (in (A), supra) was convicted of a bribery charge and sentenced to a state prison.
The court reserved decision, pending receipt of briefs from counsel, and counsel orally stipulated that in the interim petitioner would be able to conduct his business as if a certificate of inspection had been issued therefor.
Petitioner's counsel subsequently submitted a preliminary brief and a (later) memorandum of law, wherein he argues that respondents' aforesaid denial was arbitrary, capricious and contrary to law because (a) a licensing official may not consider the character of the applicant where not given such specific power by statute or ordinance, (b) the aforesaid reasons for denial were not based on factors "relating to the conduct of the business or the maintenance of the premises" which are the only factors respondents have jurisdiction to consider, (c) it was a violation of the equal protection and due process clauses of the federal Constitution to deny the license application without affording petitioner a hearing where he would have had an opportunity to rebut the allegations on which the denial was based, (d) respondents are without discretion, in passing on license applications, to consider factors other than those relating to public safety, and (e) there was an absence of sufficient evidence to support the denial.
The Corporation Counsel's brief included, inter alia, a "Supplemental Reply Affidavit" by respondent Bunce, sworn to August 30th, wherein he (1) stated that the records of the Police Department, confirmed by the records in the City Treasurer's Office, showed that no Class D amusement license had been issued for the subject premises for any year subsequent to 1973, and (2) attached a post-trial decision of a Rochester City Court judge, dated July 5, 1977, rendered in connection with an unsuccessful gambling prosecution against two men (unrelated to the present proceedings), which contained the following excerpts:
The court thereafter scheduled an evidentiary hearing to resolve the issue of whether petitioner held a Class D amusement license for the subject premises during 1976 and whether his application was thus to be considered as for a renewal rather than an original license (cf. Rapaport v. Village of Port Chester, 27 A.D.2d 850, 278 N.Y.S.2d 248). Petitioner's counsel was unable to appear at the scheduled hearing because he was at that time engaged in a criminal trial in another court. Subsequently, however, he advised the court of his intention to forego the hearing. Instead, counsel for both sides entered into a written stipulation, submitted to the court on November 25th, that 1973 was the last year for which a Class D amusement license had been issued to petitioner.
The court therefore treats petitioner's application as...
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421 Corp. v Metropolitan Gov't of Nashville
... ... Thompson, 339 S.W.2d 869, 873 (Ky. Ct. App. 1960); City of Dallas v. Sullenger, 826 P.2d 34, 36 (Or. Ct. App. 1992); Carroll v. Hastings, 402 N.Y.S.2d 279, 283 (Sup. Ct. 1977) ... The source for the law applicable to this dispute are the state statutes, codified at Tenn ... ...