PEOPLE v. COURTESY MOBIL (2003)

Appeal by defendants from a judgment of the Justice Court, Town of Greenburgh, Westchester County (D. Friedman, J.), rendered June 6, 2002, after a non-jury trial, convicting defendant Socony Mobil of violating § 285-36(O ) (6) of the Town Code of Greenburgh and imposing a fine of $500.

Appeal by defendant Courtesy Mobil unanimously dismissed as no judgment of conviction was entered against Courtesy Mobil and thus it is not aggrieved.

Judgment of conviction insofar as it is appealed from by Socony Mobil unanimously reversed on the law and accusatory instrument dismissed.

Defendants were charged with “non-permitted sale of beer” in violation of § 285-36(O )(6) of the Town Code of Greenburgh, which forbids “gasoline station convenience stores” (defendants' designated land use) from maintaining an inventory of grocery items “constitut[ing] more than forty-five (45%) of the wholesale dollar value of the total displayed inventory.”   The People's testimony at trial was that defendants were charged based on the fact that they held a license issued by the State Liquor Authority to sell beer.   Because the license required that defendants maintain a grocery inventory of at least 50%, defendants were, in the People's view, ipso facto in violation of the Town of Greenburgh's 45% limit.   The record reflects testimony by the People's witnesses that no other enforcement mechanism for the ordinance was contemplated, that no actual calculation of the percentage of defendants' grocery inventory was made, and that defendants could possibly have been in actual compliance with the Town ordinance by having a grocery inventory of 45% or less.   Thus, the People failed to establish, by legally sufficient evidence and beyond a reasonable doubt, every element of the offense charged (see CPL 70.20;  470.15[4][b] ).

 Moreover, Greenburgh Town Code § 285-36(O )(6) is invalid.   It is well settled that “the Alcoholic Beverage Control Law is exclusive and Statewide in its scope and that, thus, no local government may legislate in this field” (People v. De Jesus, 54 N.Y.2d 465, 470, 446 N.Y.S.2d 207, 430 N.E.2d 1260 [1981];  see also DJL Rest. Corp. v. City of New York, 96 N.Y.2d 91, 725 N.Y.S.2d 622, 749 N.E.2d 186 [2001] ).   The zoning ordinance at issue was expressly tailored, on its face, to “directly affect the field preempted by the State law” (Matter of Lansdown Entertainment Corp. v. New York City Dept. of Consumer Affairs, 74 N.Y.2d 761, 763-764, 545 N.Y.S.2d 82, 543 N.E.2d 725 [1989];  cf. DJL Rest. Corp., 96 N.Y.2d at 96, 725 N.Y.S.2d 622, 749 N.E.2d 186).   While the court below cited article 9 of the Alcoholic Beverage Control Law as the basis for its finding that the ordinance was a valid exercise of local authority, that article only provides a mechanism for a political subdivision to determine whether to become entirely “dry.”   It does not permit the Town to impose its own regulations upon the otherwise permitted sale of alcohol.

 The fact that the ordinance is couched in terms of regulating grocery inventory value percentages of gasoline station convenience stores, rather than as a direct ban on alcohol sales, does not save it.   The “direct consequences of a local ordinance ․ [may] not ‘render illegal what is specifically allowed by State law’ ” (Louhal Props. v. Strada, 191 Misc.2d 746, 750, 743 N.Y.S.2d 810 [Sup. Ct., Nassau County 2002], quoting Matter of Lansdown Entertainment, 74 N.Y.2d at 764, 545 N.Y.S.2d 82, 543 N.E.2d 725).   The impermissible alcohol regulatory motivation of the ordinance is evident from its facial reference to a requirement that the grocery percentage be less than that required to obtain a license to sell alcohol (see De Sena v. Gulde, 24 A.D.2d 165, 170, 265 N.Y.S.2d 239 [1965] ).   Furthermore, the subject matter of the zoning ordinance is not land use but details of the internal operation of an otherwise permitted commercial use.   It is thus an invalid exercise of the Town's zoning authority (see Tad's Franchises v. Incorporated Vil. of Pelham Manor, 42 A.D.2d 616, 345 N.Y.S.2d 136 [1973], affd. 35 N.Y.2d 672, 360 N.Y.S.2d 886, 319 N.E.2d 202 [1974] [“Once the village permits a restaurant ․ to be conducted in retail districts as a conforming use, it cannot turn around and regulate such incidental or extended activities as the sale of alcoholic beverages ․ which activities are solely within the exclusive jurisdiction of the State Liquor Authority”];  De Sena, 24 A.D.2d 165, 265 N.Y.S.2d 239;  Louhal Props., 191 Misc.2d at 751, 743 N.Y.S.2d 810 [zoning power must operate in relation to use of land and not for purposes extraneous to that relation] ).

 Nor does the ordinance stand as a proper exercise of general police power.   To justify regulatory interference with the conduct of an otherwise permitted private business, there must be some “real or substantial evil” that the regulation is designed to cure, and a reasonable relation between the “evil” and the proposed remedy (Louhal Props., 191 Misc.2d at 755, 743 N.Y.S.2d 810;  see also Cowan v. City of Buffalo, 247 A.D. 591, 288 N.Y.S. 239 [1936] ).   The only “evil” indicated by the Town as prompting passage of the regulation at issue was the very selling of alcohol that the Town is without power to regulate.