N.Y. Alcoholic Beverage Control Law § 123: Injunction for unlawful manufacturing, sale or consumption of liquor, wine or beer

§ 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.