(1) Engaged in a business that requires a license without a license, temporary permit or expedited permit, or in contravention of the terms of the license, temporary permit or expedited permit, in contravention of the provisions of section 4...".
- The factual elements of the offense are: a behavioral component of a "business", circumstantial elements "in a business", "requires a license", "without a license, temporary permit or expedited permit".
- There is no dispute that the hotel is a business that operated on July 4,2022, despite the fact that it did not have a license, a temporary permit or an expedited permit at that time (see P/3, as well as the defendant's testimony at p. 73, paras. 17-22).
- In accordance with the provisions of section 4(d), "an offense under this section is the type of offense of strict liability." In the offense of strict liability, proof of the offense does not require proof of criminal thought or negligence, and a defendant will not be held liable under this section, unless "he acted without criminal thought and without negligence and did everything possible to prevent the offense" (sections 22(a) and (b) of the Penal Law).
- In the present case, I am not persuaded that the defendants did everything in their power to avoid the offense. From a review of the summaries, it seems that according to the defendants' approach, doing everything possible to avoid the offense means to legally fight the refusals and act to regulate the business license. But this is not enough: when the business holds refusals and does not obtain a license, what is correct to do is to wait with the operation of the business until the license is received. The defendants believe that this was unjustified, due to the conduct of the Authority in the present case, which according to them acted unlawfully when it refused to grant them the license. However, the significance of operating the business without the license, in the belief that they are entitled to receive it and that the Authority is the one who erred in its conduct - means taking self-judgment, instead of turning to the courts. In my opinion, this is not what is meant by the limited exception given to someone who has done everything in his power to avoid an offense.
- Moreover, in the present case, the defendants' full awareness of the attributed offense was also proven before me. Thus, when the defendants had been in the process of regulating the business for years, and even knew of the refusals that the business had received (see details from the business licensing status in the sections 28-37, and from the testimony of the defendant in the sections 56-61 above). According to the language of section 22(b), when they had a criminal thought of the type of awareness, they cannot have the protection given to the person who did everything possible to prevent the offense.
Liability of Defendants 1-2 for the offense of running a business without a license
- There is no dispute that Defendant 1 is a protected tenant who operates the business (see, for example, the summaries of the defendants in paragraph 22, preliminary arguments of March 5,2025 in section 9, and the testimony of defendant 2 at p. 85, paras. 2-6).
- There is no dispute that defendant 2 is one of the shareholders of defendant 1, holds its shares, is a director and chairman of the board of directors, and is authorized to sign on to defendant 1, and since June 2018 has been involved in the hotel in question (P/1, p. 58, paras. 18-21, see also the defendant's statements in the previous transcript of March 7,2024, p. 2 of Q. 17, N/3).
- The language of section 15 of the Business Licensing Law states:
")a) An officer of a corporation must supervise and do everything possible to prevent an offense under this law by the corporation or by one of its employees; Anyone who violates this provision shall be liable to half of the fine prescribed for that offense.