State of New York
Supreme Court : County of Monroe

Barbara D'Andrea, Modern Conquest, Inc.
d/b/a H2O, 1661 Mount Hope Avenue,
Rochester, New York 14620,
Petitioners,

for a Judgment under CPLR Article 78
compelling the City of Rochester
to issue an Amusement License and
Entertainment License under the
laws of the City of Rochester,
County of Monroe, and State of New York

- against -

Index No. 2002/4568

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Petitioners operate a bar and nightclub in the City of Rochester. Entertainment in such establishments can be offered only under amusement and entertainment licenses issues by the City, and these licenses must be renewed annually. Petitioners received licenses to operate their nightclub in 2000 and 2001. At the end of January, 2002, they applied for another one year renewal.

In a letter dated February 20, 2002, the Police Department's License Investigation Unit informed the petitioners that the Unit was recommending that their applications be denied. The letter listed eighteen alleged violations of City Code sections, several of which resulted in criminal charges or personal injuries. The petitioners responded with detailed explanations and objections to these accounts, but on March 26, the Rochester Chief of Police, Robert Duffy, upheld the majority of the charges and denied the renewal applications. This Article 78 proceeding followed.

The petitioners make two separate claims. The first is that the incidents cited had nothing to do with actual malfeasance on the part of the nightclub owners; they were altercations involving customers in the parking lot, events that allegedly happened after the bar was closed, and so on. The other is that the club is the victim of selective enforcement by the City, which tolerates similar or higher levels of disorder elsewhere--especially in the so-called High Falls Entertainment District, which has been a focus of downtown development plans.

The City responds with several points of its own. The first is a jurisdictional issue. As of the date of the answer counsel for petitioners had failed to file an executed copy of the Order to Show Cause initiating this proceeding with the County Clerk. At oral argument counsel admitted that he had not done so until the day before the court date. This was formerly considered to be inadequate; a proceeding was not commenced until an executed copy is filed with the Clerk (Fry v Village of Tarrytown, 89 NY2d 714). The court, relying on its own 2002 research materials, originally concluded that the petition ought to be dismissed but that it would be a waste of judicial and legal resources to do so, because the Statute of Limitations has not yet run and the proceeding could simply be recommenced. Subsequently, however, counsel for respondents, who had not pressed this issue, informed the Court that she had just discovered an amendment to CPLR 304, too new to be included in the latest desk books, which dropped this requirement. The filing of the petition with the unsigned Order to Show Cause was therefore sufficient. The merits of the case, which the City had addressed in detail, were therefore properly before the Court.

The City's papers argue that the Chief of Police's decision had a rational basis, and that the petition therefore fails to state a cause of action. This does not follow logically, because the City's factual claim (the basis for the denial) cannot establish that the petition is legally defective. But the City's argument is clear enough, and must prevail.

The scope of judicial review of decisions such as Chief Duffy's is very narrow. There are a number of Fourth Department cases from the 1970s, still good law, which set out the law in the exact context of an amusement or entertainment license renewal application. It is necessary for the licensing authority to have specific rules and regulations to which reference can be made, there must be an opportunity to respond to allegations, and the grounds for the decision must be stated so as to permit judicial review (Matter of Neshaminy, Inc., v Hastings, 64 AD2d 830). If the authority has complied with these requirements, however, the court's inquiry "is limited to the determination whether the record discloses circumstances which leave no possible scope for the reasonable exercise of that discretion"; in other words, "the test of the legality of the exercise of the discretionary power is solely whether the agency acted arbitrarily or capriciously." Moreover, in a renewal application--as opposed to a revocation--"no formal hearing is required." (Matter of Hirsch v Hastings, 70 AD2d 1052, citations omitted )

In the present case the petitioners had notice of specific violations of the City Code, and they had a full and fair opportunity to respond to them. The remaining question is whether the decision was arbitrary or capricious. It is clear that it was not. The court has reviewed the seventeen incidents relied upon by the Chief of Police (one of the eighteen was resolved in petitioners' favor), and it cannot see the Chief's action as arbitrary or capricious. For two significant incidents (numbers 1 and 13) the petitioners denied all knowledge of the event or simply noted "court case pending." In other cases the petitioners' explanations were inadequate to refute the police reports. On November 23, for example, the police reported shouting, honking of horns and loud music in the parking lot, and the petitioners' response was that they had requested police presence earlier in the night in the hopes of forestalling such a problem.

The petitioners' business is located in a shopping plaza, and they have argued that they are being penalized unfairly for disorder in the large parking lot which they share with other businesses. The City has argued, in response, that the incidents in the lot all resulted from the acts of intoxicated patrons, and that the club is responsible for these even after closing time.

More significant, however, are allegations that the respondents' security staff was unable to control or even monitor events within the club. On July 21 the police reported an assault on the dance floor and a patron being dragged from the premises by her assailant. The petitioners stated that they were unaware of the dance floor incident, and that the woman left on her own; the police replied that this was inconsistent with her injuries. On October 14 the police stated that a patron was hit by a vodka bottle. Petitioners replied that she was instead hit by a shoe. Even more serious are incidents in which it appears that the security staff itself may have over-reacted and caused injury to unruly patrons, such as items five and thirteen.

The court is aware of the effort required to maintain order in premises where drinking, dancing and socializing go on late at night. Municipalities have traditionally had the right to insist that all necessary efforts be made. This may be unrealistic, and it may place too great a burden on business owners who must anticipate and be responsible for the often irrational acts of their customers. Given the narrow scope of the process of judicial review, however, the court cannot say that the denial of the petitioners' renewal applications was arbitrary or capricious.

Nor is there any evidence on this record to substantiate the claim of selective enforcement. Petitioners have presented nothing more than suspicions and unsupported allegations. The presence of what is essentially subsidized competition certainly encourages these suspicions; the money and attention devoted to the Upper Falls does create at least the possibility of a conflict of interest for the City. But there can be no realistic basis for finding that H2O was shut down in order to benefit that area's businesses. Neighbors and the local police seem to have been the driving force instead. The petition should be dismissed, without costs or disbursements. Counsel for respondents should prepare the order.

DATED: Rochester, New York

June 10, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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