
    Matter of the Petition of William W. Farley, as State Commissioner of Excise, for an Order Revoking and Cancelling Liquor Tax Certificate No. 16,005, issued to Charles Fisher.
    (Supreme Court, Albany Special Term,
    October, 1911.)
    Intoxicating liquors — Revocation or forfeiture of license'— Grounds for forfeiting license — Entrance, etc., to gambling-room.
    Where the keeper of a saloon has an entrance from his barroom on the ground floor into the hall of the building adjoining, near the foot of a flight of stairs leading to the second floor, where there is a gambling room, and waiters use the entrance to get liquors from the bar, in the presence of the saloon keeper, to serve in the gambling room to the patrons thereof, he is guilty of a violation of the statute.
    Petition for an order revoking and cancelling a liquor tax certificate.
    Louis M. King, for petitioner.
    Peter A. Delaney, for respondent.
   Rudd, J.

A liquor tax certificate was issued to Charles Fisher on September 16, 1910, permitting him to traffic in liquors at Nos. 425 and 427 Broadway, Albany.

The petition filed by the State Commissioner of Excise alleges that Charles Fisher “ did wrongfully and unlawfully suffer and permit and did have an opening and means of entrance and passageway for persons and things between the room and place where traffic in liquors was carried on and other rooms and places where gambling was suffered and permitted.”

The petition alleges certain specific dates upon which the certificate holder violated the provisions of the law above stated.

There is little dispute a's to the conditions existing upon which the application for revocation is based.

The certificated premises, known as ¡Nos. 425- and 427 Broadway, are located on' the southeasterly corner of Broadway and State street, Albany. The premises are upon the ground floor. The entrance to the saloon proper is in the corner of the building at- the junction of State street and Broadway.

¡Next adjoining the building in which the premises are situated is a building known as ¡Nos. 30 and 32 State street.

There is an entrance to ¡Nos. 30 and, 32 State street through a door entering into a hallway on the first floor thereof, in which hallway is a flight of stairs going to the floor above.-

In the saloon, or bar-room, of Fisher, there is, near the entrance on the northerly side of the room, a lunch stand. East thereof, and on the north side of the bar-room, there is a lunch room with an entrance from State street into the lunch room and a doorway from the lunch room opening into the bar-room. " Along .the ' southerly, side of the bar-room, occupying almost the entire depth of the room from east to west, is a bar. ¡Near the easterly end of the bar, through the east wall of the bar-room, is a doorway leading into the haU of the premises adjoining, ¡Nos. 30 and 32 State street, into which ■ hall, as above stated, there is a doorway 'leading directly from State street. The door from the bar-room into" this hallway is not far from the foot of the flight of stairs leading to the second floor of premises 30 and 32 State street. The foot of the flight of stairs is just south of the doorway leading from the bar-room into this hall..' tip the flight of stairs one story, to the second story of premises 30 and 32 State street, •.at the head of the stairs to the left, is an opening into a large room which was used for gambling.'

There is no disputo as to this. There were, in this room on the second floor of the premises referred to, different devices-for gambling.

The special agents of'the. excise department won and lost money gambling in this room, on the occasions specified in the petition. While the agents of the excise department were in this gambling room, there were other men in the room gambling; and the special agents saw a waiter serving beer and liquors to those at the tables gambling, and the waiter served the agents.

The waiter took the orders from those in the gambling room who desired to drink, went out of the door from the gambling room into the hall, down the stairs of which I have spoken, through the door at the east end of the barroom, obtaining their liquors at the bar in the presence of Charles Fisher, went out of the door into the hall, up the stairs serving the liquors to those in the gambling-room.

Those are, in substance, the facts upon which the petitioner asks the court for an order revoking the license;

The charge against the certificate holder, and the sole ground upon which the revocation of his liquor tax certificate is sought, is that he violated that portion of subdivision E of section 30 of the Liquor Tax Law which makes it unlawful for any holder of the liquor tax certificate “ to suffer, permit, or have any opening, or means of entrance or passageway for persons or things between the room or place where the traffic in liquors is carried on, and any other room or place where any person whosoever suffers or permits any gambling.”

There is no allegation that the certificate holder, Fisher, was the proprietor of or connected with the. gambling room.

The State Excise Commissioner contends that the certificate holder, Fisher, violated the law in suffering or permitting the doorway to exist,' leading from the certificated premises into the hall of the State street building, and that thereby' he permitted or had an opening, or means of entrance, or passageway, for persons or things between the certificated, premises and a room where some person suffered or permitted gambling.

The respondent contends that the question here must be determined solely upon the physical. condition that existed, irrespective of the evidence in the case with reference to the serving of liquor by the waiter who went from the certificated premises, sis above described, and served liquor in the gambling room, which was there consumed.

The respondent claims that -to hold that the certificate holder is guilty of an unlawful act, because he had the doorway from the certificated premises into the hall at the east of the bar-room, would mean that the certificate holder would be equally guilty of an unlawful act, provided there was a g'ambling room in a building three or four doors away from the premises and provided that there was some door through which a person could go from the saloon, thence through hallways upstairs, or by means of an elevator could eventually reach á room some distance away, if you please, where gambling was being carried" on, without the knowledge of the certificate holder.

In other words, for illustration, that it would mean that a certificate holder occupying premises on the ground floor of a great office building might be held liable to be guilty of an unlawful act if, from some door in the certificated premises, you could get into the office building, and thence by hallways, or elevators, could reach some room in the fifteenth story of the building, where gambling was being conducted; the respondent contending that the "law does not contemplate such a situation as in the supposed case, or in the case here under consideration; that the present law was enacted to correct what the Legislature deemed to be a weakness in the statute as it existed when the Ulinski case was decided in May, 1901 (119 App. Div. 622).

In the Ulinski case it was held in a proceeding to revoke a certificate, it appearing that the defendant was the lessee of a single room in a building, that an adjoining room, containing a slot machine, was leased by another person in no way connected with the defendant in business; that the defendant had complained to the owner of the slot machine and to the landlord, asking that it be removed, that the certificate should not be revoked but it was specifically stated by the court that the decision was not a precedent in any other cases where the premises are similarly located, but where there is evidence of connivance between the parties to carry cm gambling.

The provision of the law, as it existed when the Ulinski case was passed upon, was that no person “ shall suffer or permit any ganibling to be done in the place designated by the liquor tax certificate as that in which the traffic in liquors is to be carried on, or in any yard, booth, garden, or any other place appertaining thereto, or connected therewith.”

The Legislature recognized, as we all do, that the combination of the sale and consumption of intoxicating liquors with gambling is bad, and sought, by making the statute as it now is, to guard against that evil.

The issue is pretty sharply defined; the petitioner contending that the license should be revoked, because of the open or unlocked door from the eást of the licensed premises to the hallway of the premises next adjoining, through which door persons could and did pass from the bar-room up the stairs into the gambling room; the respondent claiming that the door in question is not “ between the room or place where the traffic in liquors is carried on, and any other room or place where any person whosoever suffers or permits any gambling.”

In other words, the respondent contends that, in order to violate the statute, it must appear that the doorway is directly between the saloon and the gambling room, that is, that the' doorway is simply an opening in a partition, which partition separates the gambling room and the saloon, or else that there must be a clearly defined passageway leading from one room directly to the other, and that this condition or situation of' doorway and passageway must exist physically, irrespective of and apart from indication, or act, or omission to act, on the pdrt of the holder of the certificate.

I have in mind the expressions of Justice Crane in the Finley Case, 58 Misc. Rep. 640, when he said that the liquor trafficker should “he strictly held to the provisions which permit him to carry on such business in our midst, yet the court is bound to give those provisions a reasonable interpretation and not construe them beyond their fair meaning or extend prohibitions to cases and situations which the- law has not covered. In other words, the court' can and should merely declare and enforce what the statute has enacted.”

In order that a reasonable interpretation and a fair meaning should he given to the statute, and in order that it may he determined whether the certificate holder did suffer or permit a condition to exist which is prohibited by law, it is, in my opinion, not only necessary to examine the physical conditions, but also quite as important to determine the legal effect of the acts of the certificate holder, by inquiring into all that he did, or permitted to be done, in connection with the use of the premises covering which the certificate had been issued.

Therefore, it seems that- the evidence showing that liquors were taken from the bar of the licensed premises, and served-to those in the gambling room, and that a waiter was going' to and fro through the doorway in question, carrying a tray, as waiters ar.e accustomed to do, serving liquors purchased from Fisher at the bar to be drunk by the patrons of the gambling room, is at least one of the conditions which this court is bound to consider in trying to' determine whether Fisher suffered or permitted any opening, or means of entrance, or passageway for persons or things, between his barroom- and the gambling room.

.Much is made by the respondent of the fact that the gambling room was on the second floor .of the adjoining building. What of it, if Fisher jpermitted an opening or means of entrance or passageway for persons or things between 'his room and the room in question on the second floor of the adjoining building?

Fisher testified that he did not employ the waiter who was serving liquors in the gambling room. That is quite immaterial, and of no importance It might he that it would add to the business of the gambling room, if the proprietor of that establishment paid the waiter.

It is in evidence that men dressed as waiters, wearing white, coats and aprons, took liquors from the bar in the presence of Fisher.

It was not necessary for Fisher to have the doorway open at the east .end of his bar-room leading into the hallway, in order that patrons might come and go through a State street entrance less prominent than the entrance to his saloon on the corner, for the reason that there was a doorway from his bar-room into the lunch room, and thence directly out upon State street.

The only explanation Fisher gave of the existence of the door at the east end of his bar-room was that it was for air. That meant, of course, that it was left open for air. The court asked him this question: “ Q. Didn’t you know what was on the other side of an open.door that you. left open for air? A. I knew there was a"gambling room upstairs, but I did not see any one going up.”

Of course, that testimony related to the conditions which existed generally during the existence of the license. It appears that it does not relate to any specific time, and the question of the court did not refer to a gambling room, and the reply that Fisher made that he knew that there was a gambling room upstairs was purely voliintary on his part.

Subsequently, under examination by his counsel, after several questions had been asked, he finally said that- he learned -that" there was a gambling room up there after the papers in this application for revocation were served upon him.

The answer which he gave to the court is not consistent with the statements which he subsequently made in his own favor.

If a person licensed to traffic in intoxicating liquors can, in the face of the statute, permit a doorway to exist, leading from the licensed premises into an outer hallway, in which, or from which there is no room connected with the licensed premises, or under the control of the certificate, holder, through which doorway waiters in the presence of the certificate holder take liquors upon trays, evidently for the purpose of consumption, .and the certificate holder can remain in ignorance of what is being done with the liquors, or where they are being taken, or what there is in the immediate surroundings that creates the demand for liquors from his bar, it certainly affords a simple and easy manner of violating the law, the plain intent of ivhich is to prevent the combination to which I have previously referred.

It appears that there was a means of going from the licensed premises to the gambling room, even if it was necessary to go into a hall and upstairs; the way was well defined, and persons did-go and pass to and fro, from one room to the other, and it was proven that the liquor seller did send liquors from the bar-room to the gambling room; he did suffer and permit a means of entrance, or a passageway, or a way of going from his bar-room to this gambling room, which the- law prohibits, and the existence of which was a violation of the statute.

An order may he entered granting the petition upon the grounds alleged, • for a revocation of the license issued to Charles Fisher, with costs.

Petition granted, with costs.  