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This entry was published on 2014-09-22
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SECTION 123
Injunction for unlawful manufacturing, sale or consumption of liquor, wine or beer
Alcoholic Beverage Control (ABC) CHAPTER 3-B, ARTICLE 8
§ 123. Injunction for unlawful manufacturing, sale or consumption of
liquor, wine or beer. 1. (a) If any person shall engage or participate
or be about to engage or participate in the manufacturing or sale of
liquor, wine or beer in this state without obtaining the appropriate
license therefor, or shall traffic in liquor, wine or beer contrary to
any provision of this chapter, or otherwise unlawfully, or shall traffic
in illegal liquor, wine or beer, or, operating a place for profit or
pecuniary gain, with a capacity for the assemblage of twenty or more
persons, shall permit a person or persons to come to such place of
assembly for the purpose of consuming alcoholic beverages without having
the appropriate license therefor pursuant to section sixty-four-b of
this chapter, the liquor authority or any taxpayer residing in the city,
village or town in which such activity is or is about to be engaged or
participated in or such traffic is being conducted, or the city, town or
village, may present a verified petition or complaint to a justice of
the supreme court at a special term of the supreme court of the judicial
district in which such city, village or town is situated, for an order
enjoining such person engaging or participating in such activity or from
carrying on such business. Such petition or complaint shall state the
facts upon which such application is based. Upon the presentation of the
petition or complaint, the justice or court shall grant an order
requiring such person to appear before such justice or court at or
before a special term of the supreme court in such judicial district on
the day specified therein, not more than ten days after the granting
thereof, to show cause why such person should not be permanently
enjoined from engaging or participating in such activity or from
carrying on such business, or why such person should not be enjoined
from carrying on such business contrary to the provisions of this
chapter. A copy of such petition or complaint and order shall be served
upon the person, in the manner directed by such order, not less than
three days before the return day thereof. On the day specified in such
order, the justice or court before whom the same is returnable shall
hear the proofs of the parties and may, if deemed necessary or proper,
take testimony in relation to the allegations of the petition or
complaint. If the justice or court is satisfied that such person is
about to engage or participate in the unlawful traffic in alcoholic
beverages or has unlawfully manufactured or sold liquor, wine or beer
without having obtained a license or contrary to the provisions of this
chapter, or has trafficked in illegal liquor, wine or beer, or, is
operating or is about to operate such place for profit or pecuniary
gain, with such capacity, and has permitted or is about to permit a
person or persons to come to such place of assembly for the purpose of
consuming alcoholic beverages without having such appropriate license,
an order shall be granted enjoining such person from thereafter engaging
or participating in or carrying on such activity or business. If, after
the entry of such an order in the county clerk's office of the county in
which the principal place of business of the corporation or
copartnership is located, or in which the individual so enjoined resides
or conducts such business, and the service of a copy thereof upon such
person, or such substituted service as the court may direct, such
person, copartnership or corporation shall, in violation of such order,
manufacture or sell liquor, wine or beer, or illegal liquor, wine, or
beer, or permit a person or persons to come to such place of assembly
for the purpose of consuming alcoholic beverages, such activity shall be
deemed a contempt of court and be punishable in the manner provided by
the judiciary law, and, in addition to any such punishment, the justice
or court before whom or which the petition or complaint is heard, may,
in his or its discretion, order the seizure and forfeiture of any
liquor, wine or beer and any fixtures, equipment and supplies used in
the operation or promotion of such illegal activity, including any bar,
bar or refrigeration equipment, vending machines, gaming machines and
jukeboxes, and such property shall be subject to forfeiture pursuant to
the provisions of subdivision two of this section. Costs upon the
application for such injunction may be awarded in favor of and against
the parties thereto in such sums as in the discretion of the justice or
court before whom or which the petition or complaint is heard may seem
proper.

(b) The owner, lessor and lessee of a building, erection or place
where alcoholic beverages are unlawfully manufactured, sold, consumed or
permitted to be unlawfully manufactured, sold or consumed may be made
respondents or defendants in the proceeding or action.

2. (a) This seized property shall be delivered by the peace officer,
acting pursuant to his special duties or police officer having made the
seizure to the custody of the authority or the district attorney of the
county wherein the seizure was made as may be directed by the court,
except that in the cities of New York and Buffalo, the seized property
shall be delivered to the custody of the authority or of the police
department of such cities, together with a report of all the facts and
circumstances of the seizure.

(b) It shall be the duty of the authority or such district attorney
or, if the seizure was made in the cities of New York or Buffalo, of the
authority or corporation counsel of such city, as the case may be, to
inquire into the facts of the seizure so reported and if it appears
probable that a forfeiture has been incurred, for the determination of
which the institution of proceedings in the supreme court is necessary,
to cause the proper proceedings to be commenced and prosecuted, at any
time after thirty days from the date of seizure, to declare such
forfeiture, unless, upon inquiry and examination the authority or such
person, as the case may be, decides that such proceedings can not
probably be sustained or that the ends of public justice do not require
that they should be instituted or prosecuted, in which case, the
authority or such person shall cause such seized property to be returned
to the owner thereof.

(c) Notice of the institution of the forfeiture proceeding shall be
served either (i) personally on the owners of the seized property or
(ii) by registered mail to the owners' last known address and by
publication of the notice once a week for two successive weeks in a
newspaper published or circulated in the county wherein the seizure was
made.

(d) Forfeiture shall not be adjudged where the owners established by
preponderance of the evidence that (i) the use of such seized property
was not intentional on the part of any owner, or (ii) said seized
property was used by any person other than an owner thereof, while such
seized property was unlawfully in the possession of a person who
acquired possession thereof in violation of the criminal laws of the
United States, or of any state.

(e) The authority or such person having custody of the seized
property, after such judicial determination of forfeiture, shall, by a
public notice of at least five days, sell such forfeited property at
public sale. The net proceeds of any such sale, after deduction of the
lawful expenses incurred, shall be paid into the general fund of the
county wherein the seizure was made except that the net proceeds of the
sale of property seized in the cities of New York and Buffalo shall be
paid into the respective general funds of such cities.

(f) Whenever any person interested in any property which is seized and
declared forfeited under the provisions of this section files with a
justice of the supreme court a petition for the recovery of such
forfeited property, the justice of the supreme court may restore said
forfeited property upon such terms and conditions as he deems reasonable
and just, if the petitioner establishes either of the affirmative
defenses set forth in paragraph (d) of subdivision two of this section
and that the petitioner was without personal or actual knowledge of the
forfeiture proceeding. If the petition be filed after the sale of the
forfeited property, any judgment in favor of the petitioner shall be
limited to the net proceeds of such sale, after deduction of the lawful
expenses and costs incurred by the seizing party.

(g) No suit or action under this section for wrongful seizure shall be
instituted unless such suit or action is commenced within two years
after the time when the property was seized.