Barry v. O'Connell

Lewis, J. This is a proceeding under article 78 of the Civil Practice Act to review a determination of the State Liquor Authority which disapproved an application by the petitioner-appellant for a license to sell liquor for off-premises consumption at a site in the hamlet of Verplanck, Westchester County, New York. Although Verplanck has a population of between 2,100 and 2,350, which increases to 5,000 in the summer season, there is in that unincorporated community no licensed store for the sale of liquor for off-premises consumption. The nearest stores of that character are in Buchanan — a village one and one-half miles distant having a population of 1,600, where two licensed stores are located — and Peekskill, four miles distant where there are eight licensed liquor stores. Upon a petition for a retail liquor license filed by the present appellant with the Westchester County Alcoholic Beverage Control Board, that board, after a full investigation, determined that public convenience and advantage in Verplanck would be served by the issuance of the license for which the petitioner had applied. After noting its approval thereupon, the local — 49 — board forwarded the petition to the State Liquor Authority with a report of its investigation, a digest of its findings and other related data submitted in connection therewith. Thereafter, following a hearing, the Authority disapproved the application by sending to the petitioner the following written notice: “ Notice of Disapproval “ Please take notice that your application for a retail license is hereby disapproved by the State Liquor Authority for the following reasons: “ 1. Under all the circumstances in this case it is not conducive to the proper regulation and control of the distribution and sale of alcoholic beverages to issue this license. “2. In view of the type of neighborhood, there is no need for a package store at the location applied for. “ A request will be forwarded to the Comptroller to have refunded to you the license fee deposited at the time of filing your application. As prescribed by the Alcoholic Beverage Control Law, this refund is subject to a deduction of $15.00 (135.00). By order of State Liquor Authority John P. O’Connell Chairman.” Exercising the right given by subdivision 1 of section 121 of the Alcoholic Beverage Control Law (hereinafter referred to as the “A. B. C. Law ”) the petitioner instituted the present proceeding to review the adverse determination by the Authority. At Special Term the petitioner’s application was granted to the extent of directing a jury trial in accord with section 1295 of the Civil Practice Act and the court denied the Authority’s motion to strike from the petition and reply certain exhibits annexed thereto. At the Appellate Division the order of Special Term was reversed on the law and the proceeding was dismissed. Mindful that, by its enactment of the A. B. C. Law, the Legislature declared its purpose to be to provide for the location of off-premises liquor stores in neighborhood communities where they will most effectively serve “ public convenience and advantage ” (§ 101-c, subd. 1, id., emphasis supplied), and that the — 50 — statute “ * * * shall be so construed as to assure that the policy of the state and the intent and purpose thereof will be carried out ” (§ 150 id.), we do not regard the ruling by the respondent Authority — comprised, as it is within the “ Notice of Disapproval ’’.quoted above — to be a compliance with the declared legislative “ intent and purpose ” which prompted the enactment. (See A. B. C. Law, § 101-c, subd. 1.) Nor is it" a compliance with what we believe to have been the Legislature’s ‘ ‘ intent and purpose ’ ’ when — anticipating a problem such as that with which we are now concerned— it made the following mandatory provision: “ * * * In the event that the liquor authority refuses to issue such license it shall state and file in its office its reasons therefor * * * ” (§ 54, subd. 2 id.). We assume, as we must, that the “ reasons ” stated by the Authority to the petitioner as the basis of its action are those “ reasons ” which, pursuant to statute, were filed in its office. Accordingly, as the “ Notice of Disapproval ”, quoted in full above, constitutes the only formal notice sent to advise the applicant of action by the Authority that his application for a license had been denied, our inquiry, as a court of review, goes to the legal ■ adequacy of that determination and the stated ‘ ‘ reasons therefor ’ ’. To that end the Legislature, in framing the statute with which we are concerned, was careful to make the following provision (A. B. C. Law, § 121, subd. 1): “ Review by courts. The following actions by the liquor authority shall be subject to review by the supreme court in the manner provided in article seventy-eight of the civil practice act "or by any other appropriate remedy * * *: “ 1. Refusal by the liquor authority to issue a license or a permit. * * * ” In the course of performing our function as a court of review we have had in mind a statement made by high authority in its consideration of a kindred problem: “ * * * a reviewing court, in dealing with a determination * * * which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by sub — 51 — stituting what it considers to be a more adequate or proper basis.” ( Securities & Exch. Comm. v. Chenery Corp., 332 U. S. 194, 196.) Concluding, as we do, that the grounds for the Authority’s action, as stated in its “ Notice of Disapproval ”, are inadequate in that they do not meet the requirement of subdivision 2 of section 54 (quoted above), we note first that the two “ reasons ” given by the Authority are conclusory in character and entirely lacking in a statement of the factual considerations which led to those conclusions. Standing alone those conclusions, in our view, are not the “ reasons therefor ” mandated by the statute. They do not “ * * * enable the parties and any appellate court intelligently to determine whether the decision follows as a matter of law from the facts stated as its basis and whether the findings of fact have any substantial support in the evidence.” (Matter of New York Water Service Corp. v. Water Power & Control Comm., 283 N. Y. 23, 30; and see Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488, 498; Matter of Collins v. Behan, 285 N. Y. 187, 188.) That infirmity — the lack of a statement of facts upon which the determination rests — accentuates the prejudice to the applicant’s position in this proceeding resulting from the Authority’s failure to state, as findings of fact, what are “ all the circumstances ” which led to the determination that “it is not conducive to the proper regulation and control of the distribution and sale of alcoholic beverages to issue this license and what is the “ type of neighborhood ” in Verplanck which prompted the decision that “ there is no need for a package store at the location applied for ” (emphasis supplied) — despite the fact of record herein that more than 400 residents of that hamlet signed petitions in support of the granting of a liquor license for off-premises consumption as “a public convenience to hundreds of people.” It is thus made clear that where, as in this case, an unsuccessful applicant for a license invokes the statutory right to review the action of the Authority, the lack of a statement of the factual basis for the determination not only burdens the applicant in preparing his challenge to the determination, but also impedes the court in its review of that determination. ‘ ‘ If — 52 — the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. In other words, ‘ We must know what a decision means before the duty becomes ours to say whether it is right or wrong.’ ” (Securities & Exch. Comm. v. Chenery Corp., supra, pp. 196-197.) Passing from a consideration of that portion of the Authority’s “ Notice oe Disapproval ”, which lacks a recital of those facts upon which the eonclusory statements therein are based, we refer to the decisive use to which the word “ need ” is put, which, in our view, invalidates the determination. Although the standard fixed by the Legislature for locating ‘ ‘ off premises liquor and wine stores in neighborhood communities ’ ’ is required to be a location ‘ ‘ which most effectively serves public convenience and advantage ” (A. B. C. Law, § 101-c, subd. 1, emphasis supplied), the Authority, in its second reason — already noted — for disapproving the petitioner’s application, stated its conclusion to be 11 In view of the type of neighborhood, there is no need for a package store at the location applied for.” (Emphasis supplied.) The word “ need ”, chosen by the Authority, is not synonymous with either ‘ ‘ convenience ” or ‘‘ advantage ’ ’ — chosen by the Legislature to define the standard it intended to fix. Bather do we think — and indeed it is significant to our problem — that the word ‘ ‘ need ’ ’ connotes a degree of urgency or imperativeness which the statutory phrase “ convenience and advantage ” does not import. True it is that, as a reviewing court, we owe deference to the Authority — an administrative board — in the exercise of its discretion within the law. That discretion, however, cannot be invoked outside the law. It is for the courts, not for administrative boards, to determine what action is within, or without the law. Upon that subject this court, in the consideration of a similar problem, has said per Pound, J.: “ Laws are made by the law-making power and not by administrative officers acting solely on their own ideas of sound public — 53 — policy, however excellent such ideas may be.” (Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157, 162.) Within that rule we think that, when the Authority denied the petitioner’s application for a license, by choosing and considering “ need ” as the standard for locating an oil-premises liquor store in the hamlet of Verplanck, instead of employing to that end the statutory standard of “ convenience and advantage ”, the Authority disregarded the standard fixed by the Legislature and arrogated to itself power in excess of that which it possesses as an administrative board. Accordingly, the order of the Appellate Division should be reversed, and the determination of the State Liquor Authority annulled, with costs to the petitioner-appellant in this court and in the Appellate Division and the matter remitted to the Authority for further proceedings not inconsistent with the decision herein.