
    In the Matter of Angelo Bologno, Respondent, against Bernard J. O’Connell, as Commissioner of Licenses of the City of New York, Appellant.
    Argued October 22, 1959;
    decided December 30, 1959.
    
      
      Charles H. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for appellant.
    In the exercise of his discretion, the Commissioner of Licenses properly determined that the junk business for which a license was sought should not be located in a residential neighborhood against the protests of residents and others. Control of the location of a junk yard is an appropriate means of protecting the public health, safety and welfare. The fact that the proposed site of the junk yard is zoned so as to permit the business is not controlling. (People ex rel. Schwab v. Grant, 126 N. Y. 473; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Baldi v. Gilchrist, 204 App. Div. 425; Matter of Barresi v. Biggs, 203 App. Div. 2; Matter of Dr. Bloom Dentist, Inc., v. Cruise, 259 N. Y. 358; People v. American Wool Stock Corp., 286 N. Y. 77; Lerner v. City of Delavan, 203 Wis. 32; Hammond v. Board of Aldermen, 123 N. J. L. 553, 125 N. J. L. 627; Matter of Savage v. Commissioner of Licenses of City of N. Y., 3 A D 2d 717; Matter of Rosenberg v. Moss, 266 App. Div. 845, 296 N. Y. 595; Matter of Small v. Moss, 279 N. Y. 288; Matter of Goelet 
      v. Moss, 248 App. Div. 499, 273 N. Y. 503; Matter of Picone v. Commissioner of Licenses of City of N. Y., 241 N. Y. 157; Matter of Brooklyn Parking Corp. v. Camella, 193 Misc. 811; Matter of Marburg v. Cole, 286 N. Y. 202.)
    
      John F. Fitzsimons for respondent.
    I. The Administrative Code of the City of New York empowers the City Planning Commission to regulate and restrict the location of trades and industries. II. The proper place for residents and others to voice their protest against the locating of a junk business is before the City Planning Commission and the Board of Estimate. III. We have in the present instance a legislative enactment that the zoning of the site under consideration is part of an over-all plan designed to promote the public health, safety and general welfare and, at the same time, we have a single individual, the Commissioner of Licenses, attempting to override this clear legislation by his personal finding that the public health, safety and welfare would be adversely affected by a junk yard business at the site. IV. Lawful rules and regulations adopted by the Commissioner for the conduct of a junk yard business in an unrestricted use district can very well give full play to the Commissioner’s exercise of his discretion in behalf of the public health, safety and welfare consonant with zoning. (Matter of Rosenberg v. Moss, 266 App. Div. 845, 296 N. Y. 595.) V. The License Commissioner’s function is to control the licensee in whatever location the licensed use is suitable under zoning standards. His control is over the conduct of the business and not over the location of it.
   Burke, J.

The Commissioner of Licenses appeals, pursuant to permission, from a unanimous affirmance by the Appellate Division of an order of Special Term directing him to issue a junk license.

The petitioner applied for a license to conduct business as a junk dealer at 122-52 Montauk Street, Springfield Gardens, Long Island, New York. The records of the Department of Licenses indicate that the neighborhood ‘ ‘ is vacant land, predominantly residential in character except for two places of business ”. However, the City Planning Commission had designated this area as an unrestricted use district, and the Borough Superintendent of Queens issued a certificate of occupancy. After a hearing, pursuant to the Administrative Code of the City of New York (§ 773a-7.0, subd. c), the application for a license was denied by the Commissioner of Licenses. The Commissioner stated that he was bound by neither the zoning designation nor the issuance of the certificate of occupancy. Both the findings of the trial court and the record before us indicate that the sole basis for the denial is the alleged harm the junk business would work on this predominantly residential area.

Since there is no question as to the petitioner’s compliance with the preliminary and formal requirements of the statute, the single issue to be determined is: whether the denial on the ground above stated is within the ambit of legislatively delegated discretion. We are not here concerned with whether the Legisture could grant such power, but solely whether they did in fact delegate this power to the Commissioner of Licenses.

The Commissioner contends that since [c]ontrol of the location of a junk yard is an appropriate means of protecting public health, safety and welfare ”, he can, in the exercise of his discretion, deny a license, regardless of a zoning designation to the contrary. We believe this attempt to exercise a general power is in excess of the authority intended to be conferred.

It is well settled that regulation of junk dealers is a valid exercise of the police power of the State (People v. American Wool Stock Corp., 286 N. Y. 77). The Legislature, of course, may directly or indirectly (e.g., via the municipality) bestow this power upon one administrative officer or tribunal, or in varying degrees, to separate administrative bodies (e.g., Commissioner of Licenses and City Planning Commission). Pursuant to such delegation the New York City Charter provides generally that: “ The commissioner shall have cognizance and control of the granting, issuing, transferring, renewing, revoking, suspending and cancelling of all licenses and permits, except in the cases with respect to which and to the extent to which any of said powers are conferred upon any other person by law, but including all licenses heretofore issued by the board of aldermen” (§ 773). In addition, the Administrative Code of the City of New York specifically requires, inter alia, that junk dealers be licensed, bonded and bound by certain restrictions (ch. 32, art. 18, §§ B32-113.0 — B32-124.0).

Since a practical modus operandi is often difficult to achieve, as well as unnecessarily cumbersome and inflexible, the Administrative Code, as in the situation now before us, quite often avoids any meticulously worded or scientifically calculated directions. Any such rigid declaration, even if liberally construed, might well provide unethical groups with the legal tightrope with which to span the very object of the enactment. In order, therefore, not to frustrate this very purpose, the Commissioner must be given a certain amount of leeway. While he may not act arbitrarily there is no doubt that he can use a certain degree of discretion in the exercise of the powers conferred (Matter of Rosenberg v. Moss, N. Y. L. J., Aug. 14, 1941, p. 343, col. 7 [Sup. Ct, N. Y. County], affd. 266 App. Div. 845, affd. 296 N. Y. 595). As we said in Matter of Marburg v. Cole: “ The law is well settled that it is not always necessary that license legislation prescribe a specific rule of action. Where it is difficult or impractical for the Legislature to lay down a definite, comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials.” (286 N. Y. 202, 211-212; emphasis added.)

However this is obviously not to be construed as a grant of limitless authority to provide for the health, safety and general welfare. Administrative discretion must be guided by an express or clearly implied standard, policy or purpose. Once a standard is established the courts cannot thereafter interfere with a reasonable determination within this sphere of discretion (Matter of Small v. Moss, 277 N. Y. 501; Matter of Larkin Co. v. Schwab, 242 N. Y. 330). Refusal to issue a license would, of course, be arbitrary and in excess of reasonable discretion if based solely upon a ground which the Commissioner may not consider (Matter of Small v. Moss, supra; Matter of Larkin Co. v. Schwab, supra).

In the light of the history and purpose of the regulation of junk dealers, it is obvious that a license is required in order to eliminate or at least curtail the readily available market for stolen property which this business affords (People v. American Wool Stock Corp., 286 N. Y. 77, supra; People v. Sobel, 198 Misc. 891; People v. Nierman, 190 Misc. 149; see, also, Administrative Code of City of New York, § B32-120.0 to § B32-123.0). The clear implication, therefore, is that delegated discretion was intended, in this instance, to be limited to this specific subject, i.e., to the prevention of the distribution of stolen goods. This is further substantiated by the fact that under section 200-2.0 of the Administrative Code the City Planning Commission, not the License Commissioner, is empowered to regulate and restrict the location of trades and industries. That section further states: 11 Such regulations shall be designed to promote the public health, safety and general welfare. The commission shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values, and the direction of building development in accord with a well-considered plan.” (Emphasis added.)

Nowhere in the sections before us is there any indication of an intention to bestow conflicting jurisdiction to these administrative bodies. If there was such an intention the Commissioner of Licenses could then subvert the ivell-considered plan of the City Planning Commission by his mere personal finding to the contrary. While the factors available to the City Planning Commission (i.e., location, suitability, etc.) need not be disregarded by the Commissioner of Licenses, they should be considered only in their relation to the purpose for which a license is required. The record nowhere indicates this vital connection and, therefore, the refusal of the Commissioner to grant the license because of the mere objections of the residents (as to possible adverse effect upon the area) is arbitrary and in excess of authority conferred. This is purely a zoning problem and should be left to that body before whom the residents can rightfully protest in this regard. (See New York City Charter, §§ 200, 201.)

Under the present zoning law there are numerous and equally obnoxious activities (e.g., crematory, fertilizer manufacturing plant, slaughterhouse, etc.) which may be conducted in this area without the necessity of a license. It would seem absurd for us to now find a legislative intent to grant duplicating powers over a junk dealer (in re: zoning) when there are so many other objectionable activities with which the Commissioner of Licenses is powerless to deal. Although the Legislature clearly intended, under its police power, to regulate the junk business in each of its distinct aspects of public concern (i.e., zoning and prevention of crime), there should be no doubt that the power to do so was divided and separately conferred.

The Commissioner cites Matter of Rosenberg v. Moss (supra) as authority for the fact that he has absolute discretion to provide generally for the health, safety and welfare of the community. The Rosenberg case (supra) is not controlling. The Commissioner there denied a license to operate a bowling alley in an area which, although residential, had been zoned for business. The applicable statute at the time stated:

‘ ‘ Bowling Alleys * * *
License required; fee; general provisions — a. It shall be unlawful to maintain a public bowling alley without a license therefor.
b. The annual license fee for each public bowling alley shall be five dollars.
c. Every keeper of a public bowling alley shall maintain good order and allow no person under sixteen years of age to bowl therein.
d. Violations. [Fine or Imprisonment].” (Administrative Code, ch. 32, tit. B, art. 7, § B32-46.0; brackets furnished.)

In addition, as today, section 773a-1.0 provided that licensees must be citizens.

The petitioner there contended that the Commissioner can inquire only into citizenship and willingness to pay the statutory fee of $5. Special Term in finding for the Commissioner held that, although not express in the statute* it is surely implied that the Commissioner is to have some discretion. On appeal, from an order of the Appellate Division affirming the order of Special Term, we affirmed without opinion. The threshold question we decided was whether the Commissioner had discretion. We concluded that he did, and that there was sufficient evidence in the record to show that such discretion was exercised within the limits delegated.

In the case at bar the Commissioner attempts to assert a general and unlimited discretion even though the applicable statute does not call for it. However salutary his ideas may be, it is beyond the scope of his authority. He may not “ arbitrarily impose limitations not contained in the statute upon his [the applicant’s] right to do business.” (Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157, 161; brackets furnished.)

Accordingly, the order appealed from should be affirmed, without costs.

Desmond, J.

(dissenting). This is a mandamus-type (Civ. Prac. Act, art. 78) proceeding brought to require the New York City Commissioner of Licenses to grant a license for a junk yard in a residential neighborhood. The Commissioner, after a hearing, had held that the application should be denied on the ground that the public health, safety and welfare would be unreasonably interfered with because of “ rats, mice, noise, dirt, vermin, and trucks backing in and out of the junk shop, endangering the lives of the numerous children of the neighborhood, which is completely residential except for two places of business.” The courts below granted mandamus, apparently on the ground that there was in the licensing ordinance (Administrative Code of City of New York, §§ B32-113.0 — B32-124.0) no specific grant of authority to deny a junk shop license on such grounds. Actually, the statute states no standards or qualifications at all but it is settled law in New York that in such a situation the administrative officials charged with enforcing the licensing law have a reasonable amount of discretion. “ The requirement that a person must secure leave from some one to entitle him to exercise a right, carries with it, by natural implication, a discretion on the part of the other to refuse to grant it, if, in his judgment, it is improper or otherwise to give the required consent” (People ex rel. Schwab v. Grant, 126 N. Y. 473, 481). “ The Legislature may vest in a licensing officer a measure of discretion in granting or refusing a license ” (Matter of Small v. Moss, 277 N. Y. 501, 507). “ Petitioner does not allege, nor is there any evidence to support a claim, that the standard which has been adopted by appellants is arbitrary or unreasonable. The law is well settled that it is not always necessary that license legislation prescribe a specific rule of action. Where it is difficult or impractical for the Legislature to lay down a definite, comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials. (New York ex rel. Lieberman v. Van De Carr, 199 U. S. 552, affg. 175 N. Y. 440.) Where the administrative agency has adopted a standard as an interpretation of the broad powers granted to it by the statute, we may declare such a standard invalid only in the event that it is so lacking in reason for its promulgation that it is essentially arbitrary [citing cases].” (Matter of Marburg v. Cole, 286 N. Y. 202, 211-212.)

Therefore, mandamus will issue only when the applicant is absolutely and as matter of law entitled to his license, that is, when the refusal is completely arbitrary. ‘ ‘ Refusal to grant a license is arbitrary only when it is not based on a reasonable exercise of the discretion vested in the licensing officer. The limits of reasonable discretion are transgressed where refusal is based upon a ground which under the statute the licensing officer may not consider or upon a ground that is not supported by any evidence ” (Matter of Small v. Moss, 277 N. Y. 501, 507, supra). This record does not show that respondent Commissioner was guilty of either of those faults.

It is suggested that this petitioner’s rights to a license were somehow established by his having a certificate of occupancy for the premises and by the zoning of the area as ‘ ‘ unrestricted ’ ’. The granting of such a license, however, involves considerations different from those which apply to the zoning of a whole area or to an authorization to occupy a building for a certain purpose. If the zoning map and the certificate of occupancy from another city department established petitioner’s rights to run a junk yard business at this location, there would be no point to having a separate junk yard licensing law. The idea is advanced, also, that the sole purpose of licensing junk yards is to control or prevent dealing in stolen property (see People v. American Wool Stock Corp., 286 N. Y. 77). Presumably that was one of the reasons for this licensing requirement but it does not follow that the Commissioner, with no attention at all to public morals, health or safety, must issue a license to any applicant who is not a proven receiver of stolen property.

The undesirability of having an unsightly junk yard in an otherwise attractive area is well known and has been recognized in similar licensing laws in numerous other States (see, for instance, State v. Kievman, 116 Conn. 458; Lerner v. City of Delavan, 203 Wis. 32; City of Rochester v. Bemel, 181 Minn. 596; City of South Pasadena v. City of San Gabriel, 134 Cal. App. 403, cert, denied 292 U. S. 602). Our own court has gone very much farther as to junk yards. We have held generally valid (Matter of Harbison v. City of Buffalo, 4 N Y 2d 553) a Buffalo ordinance which directed that an existing junk yard, valid under zoning law as a pre-existing nonconforming use, be denied a further license after expiration of a three-year period. This was a court-approved recognition of the peculiarly objectionable and deleterious character of such businesses in residential neighborhoods.

Apart from all this, the grant of mandamus here is directly in conflict-with Matter of Rosenberg v. Moss (296 N. Y. 595). Rosenberg had been denied a bowling alley license. The decision in his case is a square holding that the New York City Licensing Commissioner has power, regardless of zoning or of the absence of specific standards in the statute, to take into account the residential character of the neighborhood and the opposition of residents and community leaders. The Rosenberg case cannot be distinguished from the present one. One of the reasons for requiring that bowling alleys be licensed is to control the attendance of children (see Administrative Code, § B32-46.0), just as one of the reasons for licensing junk yards is to prevent traffic in stolen goods, but in neither case does this motivation forbid the exercise by the Commissioner of reasonable discretion to deny a license on broader grounds.

The order should be reversed and the proceeding dismissed, with costs in all courts.

Judges Dye, Ftjld, Froessel and Van Voorhis concur with Judge Burke; Judge Desmond dissents in an opinion in which Chief Judge Conway concurs.

Order affirmed.  