Sales Consultants, Inc. v. Carlo

Petitioner seeks an order pursuant to article 78 of the CPLR directing the respondent to issue a license for the operation of an employment agency in the City of New York.

The license application by Sales Consultants, Inc., which specializes in placing high-level sales personnel, was denied solely on the ground that, ‘1 the use of the word ‘ consultant ’ as part of the applicant’s name conveys and is likely to convey an erroneous meaning or inference as to the nature of the services offered by an employment agency ”.

The petitioner argues that the discretion of the licensing authority in passing on an applicant’s name is limited exclusively under two specific sections of the General Business Law: (1) where the name might be confused with that of a governmental agency (§ 187, subd. [11]) and (2) where the name con*403notes or expresses any limitation concerning race, creed, color or national origin (§ 174) and that the respondent is otherwise without power to pass upon an applicant’s name.

This argument is wholly without merit. Under the General Business Law the licensing authority has implicit discretion to pass upon the name of an applicant for a license as an employment agency. The Commissioner’s exercise of this discretion in refusing to grant a license, if not otherwise arbitrary or capricious will not be interfered with by the courts. (See Matter of Barton Trucking Corp. v. O’Connell, 7 N Y 2d 299; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Elite Dairy Prods, v. Ten Eyck, 271 N. Y. 488.)

The respondent was not arbitrary or capricious in holding that the name “ Sales Consultants ” might mislead the job-seeking public or convey to them an erroneous meaning as to the nature of petitioner’s services. It suggests the giving of advice of a business nature, exaggerating the services actually rendered by an employment agency.

There is a rational basis for respondent’s determination and it was a reasonable exercise of the powers and duties imposed upon him and within his discretionary power. Accordingly the application is denied and the petition is dismissed.