
    In the Matter of Harold H. Fraser, Petitioner, v. Donald S. Hostetter et al., Individually and Constituting the State Liquor Authority, Respondents.
    Supreme Court, Special and Trial Term, New York County,
    July 26, 1965.
    
      Arthur M. Laufer for petitioner. Hyman Amsel and Hyman Mark for respondents.
   Morris E. Spector, J.

This is a proceeding pursuant to article 78, CPLR, to review and set aside an order of the respondents which disapproved petitioner’s application for a “package liquor store license”. The disapproval was based on the fact that petitioner’s lease was a percentage of sales against a minimum rental, and that his landlord had leased a store in a different location to another applicant for a license on a similar lease.

Section 63 of the Alcoholic Beverage Control Law provides that not more than one license shall be granted to any person under this section.

Subdivision 16 of section 105 of the Alcoholic Beverage Control Law provides that no retail licensee shall be interested directly or indirectly in premises where liquors are sold or manufactured.

The court is aware that it is quite common in real estate leases, particularly in prime locations, for the landlord to require the tenant to pay a minimum rental against a percentage of sales. In such a lease the landlord has no greater interest in the premises than he has if the lease was on a stringent monthly or yearly basis. In either ease, he would not have interest in ownership or operation of the premises. In the present proceeding the landlord is not a “ retail licensee ” as referred to in section 105 nor is he a “ person ” having one or more licenses referred to in section 63. His only interest is in collecting rent as a landlord.

Accordingly, the application is granted to the extent that the matter is remitted to the respondents for further consideration not inconsistent with this determination. This decision renders it unnecessary to consider whether the refusal to reconsider was arbitrary, capricious or unreasonable.  