Neubauer v. Liquor Control Comm'n

• Decision Date: 06 June 1941
• Citation: 20 A.2d 669
• Parties: NEUBAUER v. LIQUOR CONTROL COMMISSION.
• Court: Connecticut Supreme Court

20 A.2d 669

NEUBAUER

v. LIQUOR CONTROL COMMISSION.

Supreme Court of Errors of Connecticut.

June 6, 1941.

Appeal from Superior Court, Hartford County; Arthur F. Ells, Judge.

Proceeding by the Liquor Control Commission for the revocation of the restaurant permit of Joseph Neubauer. From a judgment dismissing his appeal from the commission's revocation of his license, plaintiff appeals.

No error.

Argued before MALTBIE, C. J, and AVERY, BROWN, and JENNINGS, JJ.

Monroe S. Gordon, of New Britain, for appellant.

Leo V. Gaffney, Asst. Atty. Gen. (Francis A. Pallotti, Atty. Gen, on the brief), for appellee.

BROWN, Justice.

The plaintiff since 1936 has conducted a restaurant in New Britain with facilities sufficient to satisfy the requirements of General Statutes, Cum.Sup.1935, § 1012c (7), as to dining room and kitchen accommodations and equipment. Since 1937 he had had a restaurant permit for the premises issued by the defendant. On June 26, 1939, the defendant revoked this permit on the ground that the place was not a restaurant within the contemplation of the above section of the Liquor Control Act. The Superior Court upon the plaintiff's appeal rendered judgment for the defendant, having concluded that its action in revoking the permit was not arbitrary, illegal and contrary to law. Skarzynski v. Liquor Control Commission, 122 Conn. 521, 525, 191 A. 98. Whether the trial court was correct in so ruling is the question determinative of the present appeal. A full transcript of the testimony produced before the defendant commission, together with its finding, was introduced in evidence before the Superior Court. It therefore could and should have determined the appeal upon that record. Kram v. Public Utilities Commission, 126 Conn. 543, 550, 12 A.2d 775; Skarzynski v. Liquor Control Commission, supra, 122 Conn. 526, 191 A. 98; Grady v. Katz, 124 Conn. 525, 530, 1 A.2d 137. The court suggested in its memorandum of decision, however, that it went "beyond the legal necessities of the case," receiving in evidence both the record referred to and the testimony of the witnesses de novo. Upon this evidence it reached its decision and has made its finding. Since both parties have acquiesced in this procedure and the plaintiff's assignments of error are predicated solely upon the record so presented, we determine the case upon this bases.

One of the court's conclusions was that "Service of hot meals was so insufficient in nature and amount that it is apparent they were a mere pretext. This was not a bona fide restaurant. The principal purpose and enterprise was the sale of intoxicating liquor." It is evident from the facts contained in the finding of the defendant commission, that it was for this reason it had determined that the plaintiff's place was not a restaurant within the contemplation of the statute, which provides: "(7) The word 'restaurant' means space, in a suitable and permanent building, kept, used, maintained, advertised and held out to the public to be a place where hot meals are regularly served at least...