China City Corp. v. State

• Decision Date: 15 June 1966
• Docket Number: No. 43485,43485
• Citation: 273 N.Y.S.2d 272,51 Misc.2d 429
• Parties: CHINA CITY CORP., Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 272

273 N.Y.S.2d 272

51 Misc.2d 429

CHINA CITY CORP., Claimant, v. The STATE of New York, Defendant.

Claim No. 43485.

Court of Claims of New York.

June 15, 1966.

Thaler & Rabney, New York City, Melvyn N. Thaler, New York City, of counsel, for the claimant.

Louis J. Lefkowitz, Atty. Gen., Albany, Dace Epermanis, Asst. Atty. Gen., Albany, of counsel, for the State.

DECISION

MARVIN R. DYE, Justice.

The claimant, a domestic corporation, seeks a refund of an alleged excess of a fee charged by and paid to the State Liquor Authority for the issuance of a license.

It is undisputed that on or about July 17, 1962, the claimant filed an application with the New York City Alcoholic Control Board and the State Liquor Authority for a restaurant liquor license for premises located at 1925 Church Avenue, Brooklyn, N.Y. and paid the prescribed license fee then 'due and payable therefor' in the amount of $800.00. On November 27, 1962, the Liquor Authority disapproved the application and refunded the sum of $785.00, being the fee theretofore paid less certain authorized charges. The claimant then instituted a proceeding pursuant to Article 78 CPLR to review the adverse determination which was terminated by an order of the Appellate Division, Second Department, directing that the determination of the Authority should be annulled and the license should be issued. A judgment entered thereon was duly filed in the office of the County Clerk of Kings County, on October 31, 1963 (Matter of China City, Inc. v. New York State Liquor Authority, 19 A.D.2d 832, 244 N.Y.S.2d 353). Before issuing the license thus authorized, the Authority demanded payment of the sum of $1500.00, that being the prescribed fee for 'a license year expiring on the last day of February following the date of its issuance' (Alcoholic Beverage Control Law, §§ 66(4), 67(1)(b). The claimant-applicant paid the fee under protest, claiming that it should have been pro-rated as of the date of the issuance of the license (Alcoholic Beverage Control Law, § 67(2)).

The sole question posed is one of law. Briefly stated, it is whether the fee to be paid in advance of the issuance of a license for a period less than a license year is to be calculated on the basis of 'the license year expiring on the last day of February following its issuance' or only for the balance of the unexpired license year. We look to the applicable statute for the answer. Alcoholic Beverage Control Law, § 67(1)(b) in pertinent part provides that 'each license issued pursuant to this article shall be effective for a license year expiring on the last day of February following the date of its issuance * * *', which is to say that all licenses in the designated category, whenever dated, are to have a uniform expiration date, thus providing administrative convenience.

On the other hand, the Legislature recognized that when it came to charging the fee, the date of issuance should be taken into consideration and did so by providing that '* * * the license fee prescribed therefor * * * shall be the license fee due and payable therefor' (cf. § 66(4)), which language, when read in context, has reference to the license '* * * expiring on the last day of February following the date of its issuance'.

The statute then prescribes the method and manner of payment by providing that the license fee 'due and payable therefor * * * shall be paid in advance at the time the application shall be made * * *.'

The State would have us read and apply the words 'at the time the application shall be made' as a warrant for charging a fee 'due and payable' for a full license year and this because the original license application bears date July 17, 1962 which antedates the commencement of the license period ending the last day of February, 1964.

We do not read the statute as requiring such a result. The words 'at the time the application is made' have reference to the time and manner and payment of the fee and not of the amount thereof, which, as we have already pointed out, is to be the fee prescribed by the preceding section (§ 66(4)) 'for a license year expiring on the last day of February following the date of its issuance * * *.'

There is much more to Section 67 than Paragraph 1(b). We must also read Paragraph 2 which is equally pertinent, for it has reference to the situation where the license application is for less than a license year, in which event the prescribed fee 'shall, for the balance of the license year, be in proportion as the remainder of such year shall bear to the whole year, except that it shall in no case be for less than one-half of such year.' When we read all parts of the Act as a whole, it seems manifest that the Legislature intended the license fee due and payable was to be a fee commensurate with the period for which the license was issued, either for a license year or for a period less than a license year.

In the ordinary non-controverted case the payment of the prescribed fee 'in advance at the time the application shall be made' as a matter of administrative practice presents no difficulty for the simple reason that the application and the issuance of the license applied for, whether for the whole or a part of the license year, are contemporaneous in point of time. It is when this routine has been interrupted by prolonged litigation that a wholly different situation is presented, for then the application and the issuance are so removed in point of time that the license issued is not the one applied for, but the one authorized and directed to be issued by the judgment of the Court in the Article 78 CPLR proceeding. When this happens, as it did here, the statute must be read in light of all its parts (McKinney's, § 97), for it is only by so doing that the...