MIGLIACCIO v. O'CONNELL, 122 N.E.2d 914, 307 N.Y. 566 (N.Y., 1954)

• Decision Date: 18 November 1954
• Court: New York Supreme Court — Appellate Term

122 N.E.2d 914

307 N.Y. 566

In the Matter of Americo MIGLIACCIO, Respondent,

v.John F. O'CONNELL et al., Individually and as Members of the State LiquorAuthority, Appellants.

Court of Appeals of New York.

Nov. 18, 1954.

Alvin McKinley Sylvester, New York City, Philip Wilens, Jackson Heights, and Emanuel D. Black, New York City, for appellants.

James M. Fawcett, Brooklyn, for respondent.

LEWIS, Chief Justice.

In this proceeding under article 78 of the Civil Practice Act which was transferred to the Appellate Division for disposition, Civil Practice Act, s 1296 an appeal by the State Liquor Authority brings to us for review a record upon which the Appellate Division has unanimously annulled a determination by the Authority which revoked the petitioner-licensee's restaurant liquor license and directed that, for a period of two years, no new license covering the premises involved should be issued. The revocation was absed upon a finding that the licensee had violated subdivision 6 of section 106 of the Alcoholic Beverage Control Law which provides: ‘6. No person licensed to sell alcoholic beverages shall suffer or permit any gambling on the licensed premises, or suffer or permit such premises to become disorderly.’

The charge against the petitioner is as follows: ‘That the licensee violated Section 106, subd. 6 of the Alcoholic Beverage Control Law by suffering or permitting the licensed premises to become disorderly in that he suffered or permitted females on the licensed premises to solicit male patrons therein for immoral purposes on September 6, 1953.’

Accordingly, we are to determine whether as now claimed by the appellants there is evidence of record sufficient in law to sustain the charge, upheld by the Authority, that the petitioner-licensee ‘suffered or permitted females on the licensed premises to solicit male patrons therein for immoral purposes on September 6, 1953’ (emphasis supplied).

In considering what is implied by the phrase ‘suffer or permit’ as employed in the statute quoted above, we are guided by what was written for this court (per CARDOZO, J.) in People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 30, 121 N,E. 474, 476:

‘Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence. * * *’

Knowledge of disorderly behavior in licensed premises sufficient in law to justify the revocation of a restaurant liquor license must be the subject of substantial evidence; it must have as its basis something more than suspicion. Upon that subject we have said: ‘* * * ‘considerations of expediency’ must not outweigh a lack of proof. People v. Wallace & Company, 282 N.Y. 417, 420, 26 N.E.2d 959, 960. Similarly, a license to engage in the liquor business, even though frequently referred to as a privilege and not a right, when it has been issued and acted upon by the holder, should be subject to revocation or suspension only upon competent proof showing a clear violation of the applicable regulatory provision. * * *‘ Standard Food Products Corp. v. O'Connell, 296 N.Y. 52, 56, 69 N.E.2d 559, 561.

The record before us contains evidence from which it might be found: That at the time mentioned in the...