Marchi's Restaurant, Inc. v. Hostetter

McNally, J. Appeal by leave of Special Term from an order denying respondents-appellants ’ motion to dismiss the petition for insufficiency. In this article 78 proceeding petitioner seeks a review of the determination of the appellants constituting the State Liquor Authority disapproving petitioner’s application for a restaurant liquor license. Petitioner owns and operates a restaurant at 247-251 East 31st Street, Borough of Manhattan. The restaurant has been maintained by petitioner prior to and since December 5, 1933. In or about 1946 an eating place beer license was issued to petitioner, which is renewed annually until 1949, when it applied for and was issued a retail wine and beer license which has been since renewed annually. Petitioner applied for a restaurant liquor license to dispense alcoholic beverages for on-premises consumption for the license period expiring February 28,1964. On June 3,1963 petitioner’s said application was disapproved because its restaurant is within 200 feet of a church. The disapproval was under constraint of subdivision 7 of section 64 of the Alcoholic Beverage Control Law which as amended in 1957 provides: “ no renewal license shall be denied because of such restriction to any premises so located which were maintained as a bona fide hotel, restaurant, catering establishment or club on or prior to December fifth, nineteen hundred thirty-three; and, except that no license shall be denied to any premises at which a license under this chapter has been in existence continuously from a date prior to the date when a building on the same street or avenue and within two hundred feet of said premises has been occupied exclusively as a school, church, synagogue or other place of worship.” (Emphasis supplied.) Prior to 1957 the word “ renewal” did not appear in the statute. The vicar of the church involved certifies he has no objection to the granting of said application. Moreover, the vicar states his communicants hold petitioner and its principals, a well-known neighborhood family, in great esteem; that petitioner maintains the highest standards of taste and decorum in the maintenance, operation and conduct of the restaurant. [216] Petitioner’s gross sales for 1962 were in excess of $330,000, of which over 80% represented food; petitioner alleges it has been losing patronage because liquor is not available for service to its customers. In 1909 it was held that a long-established dealer in liquor was not entitled to a liquor tax certificate for the period of one year following October 1, 1908 because after December 1, 1907 a building within 200 feet of petitioner’s place of business had been occupied as a church. (Matter of Hering, 196 N. Y. 218.) The court there observed (pp. 220-221): “ That the operation of the statute in eases like the one now before us is manifestly harsh would doubtless be a cogent argument to support the proposition that the legislature could not have intended such effect, and might be conclusive were the language of the statute at all ambiguous; but in view of the clear phraseology of the law the contention is inadmissible and the courts must remit those aggrieved thereby to relief by legislative action.” In 1911 the Legislature (L. 1911, ch. 643, § 3) extended relief to those situated as the petitioner in Matter of Hering {supra\. It is thus manifest that it is the legislative purpose to exempt certain existing establishments from the restriction of subdivision 7. The Alcoholic Beverage Control Law keys retail licenses for on-premises consumption to the type of beverage. Section 55 applies to beer; section 64 applies to liquor; and section 81 applies to wine. A license to sell liquor includes the right to sell wine and beer (§ 64, subd. 4); a license to sell wine includes the right to sell beer (§ 81, subd. 2); but a license to sell beer does not enable the sale of wine or liquor. The disqualification of sites for retail on-premises consumption within 200 feet of a school or place of worship is limited to the sale of liquor (§ 64, subd. 7) and by section 81 to the sale of wine. The Legislature made no distinction between wine and liquor in imposing the restriction. Petitioner herein has been licensed for on-premises retail sale of wine since 1949. Petitioner has maintained the premises as a restaurant prior and since December 5, 1933. Hence, even within the meaning of subdivision 7, as amended in 1957, contended for by appellants, which first introduced the concept of a “ renewal license ”, as to the first class of exempt establishments therein provided, petitioner would be entitled to a wine license and to continue to maintain its restaurant within the restricted area. However, in so interpreting said provision the appellants import a distinction not made by the Legislature in restricting establishments within 200 feet of a school or place [217] of worship. The Legislature has proscribed the sale of wine or liquor within the restricted area. There is no evidence of a legislative purpose to distinguish between wine and liquor in respect of said limitation. The evidence is the other way. As to the second class of exempt establishments under subdivision 7, premises licensed prior to the location of a school or church within the restricted area, it is provided ‘ ‘ no license shall be denied to any premises at which a license under this chapter has been in existence ”. It is to be noted that ‘ ‘ a license under this chapter ’ ’ embraces a beer, wine or liquor license. Hence, any one of the said licenses serves to qualify for exemption the second group of establishments under subdivision 7. Manifestly the Legislature did not intend to discriminate against petitioner, a restaurant in existence prior to December 5, 1933, within the first group, simply because it was previously licensed for retail sale of wine and beer and not licensed for the retail sale of liquor. If, therefore, petitioner is eligible for a retail on-premises wine license, it should also be eligible for a retail on-premises liquor license. Prior to 1957 subdivision 7 of section 64 made no distinction between establishments in existence since December 5, 1933, the first group, and those licensed thereafter, the second group. As to both types it was provided “ no license shall be denied ”. Chapter 657 of the Laws of 1957 introduced the phrase ‘ ‘ no renewal license shall be denied ” as to establishments on or prior to December 5, 1933, the first group, and retained the provision “ no license shall be denied ” in respect to establishments licensed thereafter and before the school or place of worship took up location within the 200-foot area, the second group. There is discernible the legislative purpose to terminate the inchoate right to exemption from the limitation of subdivision 7 extended ‘1 to any premises so located which were maintained as a bona fide hotel, restaurant, catering establishment or club on or prior to December fifth, nineteen hundred thirty-three ”, the first group. It is to be noted that the ante-1957 exemption was accorded to the named establishments without the requirement that they be licensed. The 1957 amendment terminated the right to exemption as to the establishments within said first group which had not theretofore been licensed. In short, the ante-1957 provision applied to the first designated establishments, although previously unlicensed; whereas the post-1957 provision is limited to those licensed among such establishments. No change was required as to the second group, licensed premises ‘1 in existence continuously ’ ’ prior to the location of [218] a school or place of worship within 200 feet, because the exemption of that group required previously existing licensed premises. Petitioner was a licensee prior to 1957. Hence, it is not to be denied a license by force of subdivision 7. There is no legislative distinction between a wine license and a liquor license in respect of the exemption against the limitation dealt with in subdivision 7. Moreover, the ambiguity, as strongly implied in Matter of Bering {supra), should be resolved against a “ manifestly harsh ” result. The order should be affirmed.