DeFalco v. Voccola, 87-486-M

• Decision Date: 19 April 1989
• Docket Number: No. 87-486-M,87-486-M
• Citation: 557 A.2d 474
• Court: Rhode Island Supreme Court
• Parties: Joseph DEFALCO d/b/a Joseph's Pub and J. & D. Associates v. Kathleen A. VOCCOLA, in her capacity as Liquor Control Administrator of the State of Rhode Island, and the Town of Johnston. P.

Page 474

557 A.2d 474

Joseph DEFALCO d/b/a Joseph's Pub and J. & D. Associates v. Kathleen A. VOCCOLA, in her capacity as Liquor Control Administrator of the State of Rhode Island, and the Town of Johnston.

No. 87-486-M.P.

Supreme Court of Rhode Island.

April 19, 1989.

Arnold N. Montaquila, Law Offices of Arnold N. Montaquila, Ltd., Providence, for plaintiff.

Richard C. Tallo, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on a petition for certiorari filed by the town of Johnston that seeks to review a Superior Court judgment that reversed a decision by the liquor control administrator and required the town of Johnston to issue a renewal liquor license to the respondent (DeFalco) conditional upon DeFalco's securing an occupancy permit for his restaurant establishment. The facts of this case insofar as pertinent to this petition are as follows.

DeFalco is the present owner of real estate located at 470 George Waterman Road, Johnston, Rhode Island. This parcel of real estate is situated in a zone designated R-15 by the zoning ordinances of the town of Johnston. DeFalco has utilized the premises as a restaurant-lounge business since 1979. During that period DeFalco had a class-B alcoholic beverage license. The restaurant and pub use constituted a pre-existing nonconforming use and was not compatible with the current zoning designation.

In February 1985, the State of Rhode Island condemned a portion of the real estate owned by DeFalco. This condemnation reduced the lot size from approximately 10,500 square feet to 10,141 square feet. This reduction in size of the land, which approximated 359 square feet, required DeFalco to remove seven feet of the frontage of the building which was located in part on the condemned portion of the real estate. In order for DeFalco to restore his building and modify it after removing seven feet of the frontage of the building, it was necessary to obtain a building permit and a demolition permit from the building inspector of the town of Johnston. The permit was refused on the ground that the building inspector considered the lot after condemnation to be a new lot and determined that the prior nonconforming use privilege was thereby nullified.

The refusal of a demolition and building permit caused DeFalco to file an action in the Superior Court in order to seek equitable relief and to be allowed to proceed to demolish a portion of his building and then reconstruct the same so that it would be usable as a restaurant-lounge. The Superior Court issued a preliminary injunction requiring the town to issue a demolition permit and a building permit. The preliminary injunction came into effect on February 26, 1986.

Meanwhile DeFalco had applied for renewal of his liquor license in December of 1985. The application for renewal of the liquor license was denied because the premises were no longer in conformity with the zoning ordinance, and also because DeFalco did not have an occupancy permit for the premises. DeFalco then appealed to the liquor control administrator for a hearing de novo. The hearing began on April 9, 1986, and continued from time to time until it was completed on April 30, 1986. On May 21, 1986, the liquor control administrator issued a decision in which she denied the application on the sole ground that DeFalco did not qualify for an occupancy permit.

Although the liquor control administrator had heard considerable evidence about the unsatisfactory management of the restaurant-lounge during past years, she did not take any of this evidence into account in denying the application. On appeal a justice of the Superior Court, noting that the premises were in the process of reconstruction, suggested that DeFalco would not be entitled to an occupancy permit until the construction was completed. He further noted that the liquor control administrator had failed to consider this circumstance. He held that the proper action would have been to grant a renewal of the liquor license on condition of DeFalco's receiving an occupancy permit. In effect, the trial justice found that DeFalco had been placed in a Catch-22 situation. His property had been condemned and a portion of the building was required to be removed. He could not obtain an occupancy permit unless and until the reconstruction of the building was completed. The town of...