Opinion
May 15, 1967
Appeal from a judgment of the Supreme Court at Special Term which dismissed the petition of and denied appellant's applications for (1) an injunction restraining respondent Meyer from selling alcoholic beverages, (2) for a judgment annulling the determination of the respondent State Liquor Authority granting Meyer a package store license, and (3) for an injunction against the State liquor Authority from issuing any package store license to Meyer for a retail store in the Plattsburgh Shopping Center. Appellant, who operates a liquor store on Cornelia Street across from the shopping center, commenced this proceeding as a taxpayer and contends that the State Liquor Authority, in granting Meyer a license, had ignored the test of public convenience and advantage and that the Clinton County Alcoholic Beverage Control Board, in recommending that the license be approved, had failed to make detailed findings as to public convenience and advantage. The questions to be determined are whether there was a rational basis for the State Liquor Authority's conclusion that public convenience and advantage would be served, and whether the Authority abused its discretion in this regard. The record discloses that prior to the granting of the license to Meyer, the Authority conducted an investigation and analysis of the application, including the character, past history and finances of the applicant. It further discloses that the physical characteristics and character of the neighborhood were probed as well as the proximity of schools and places of worship, along with the accessibility of other liquor stores and the gross income from the four nearest stores. It is undisputed that the Meyer store is some 690 feet from that of the appellant and that there are no other such stores in the west end of the City of Plattsburgh. It further appears that this part of the area is the expanding and growing end of the city. Exhibits J, K and L further reveal that there are no schools or places of worship in close proximity to the Meyer store and that apparently the volume of business done by other store operators along with the projected future of the area are such that the determination made by the Liquor Authority was not capricious or lacked foundation. The discretion reposed in the Authority as defined in Matter of Wager v. State Liq. Auth., ( 4 N.Y.2d 465) will not be disturbed unless it appears that the facts leave no possible scope for the reasonable exercise of discretion in the manner complained of by appellant; or unless there is lacking a rational basis for the Authority's conclusion on the question of public convenience and advantage ( Matter of Rockower v. State Liq. Auth., 4 N.Y.2d 128; Matter of Gambino v. State Liq. Auth., 4 A.D.2d 37, affd. 4 N.Y.2d 997). The record clearly shows a rational basis for the Authority's conclusion that public convenience and advantage is served by the issuance of the license to Meyer, and under such circumstances, the determination must be affirmed. (Cf. Matter of Nevis v. State Liq. Auth., 17 N.Y.2d 828; Matter of Hub Wine Liq., Co. v. State Liq. Auth., 16 N.Y.2d 112.) Appellant's contention that in approving the application the Authority was required to make findings of fact to support its conclusion is without merit ( Matter of Hub Wine Liq., Co. v. State Liq. Auth., supra). A similar holding is made regarding his contention that the local board must make findings when it makes a favorable recommendation. We further conclude that there has been no showing that the Authority is pursuing an illegally predetermined policy of unrestricted issuance of new package store licenses ( Cantlin v. State Liq. Auth., 16 N.Y.2d 155). Neither is there merit to the claim that Meyer's store faces the parking lot of the shopping center rather than the street itself and that subdivision 2 of section 105 Alco. Bev. Cont. of the Alcoholic Beverage Control Law is, therefore, violated. If appellant's contention were sustained, there could then be no package store license issued in any shopping center. A contrary determination was made in Matter of Swalbach v. State Liq. Auth. ( 7 N.Y.2d 518). Subdivision 2 of section 105 Alco. Bev. Cont. of the Alcoholic Beverage Control Law provides that the "principal entrance" of a package store "shall be from the street level and located on a public thoroughfare". Meyer's store, facing the parking lot which adjoins Cornelia Street, actually provides free access to the street and satisfies the intent and requirements of the section (105, subd. 2) under the practical construction the statute deserves. Judgment affirmed, with one bill of costs to respondents filing briefs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.