Opinion
Filed June 18, 1999
Appeal from the Judgment of Supreme Court, Genesee County, Dillon, J. — CPLR art 78.)
PRESENT: DENMAN, P. J., GREEN, PINE, SCUDDER AND BALIO, JJ.
Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Respondent disapproved petitioner's restaurant-wine license application for several reasons. Supreme Court granted the petition, annulled respondent's determination and ordered respondent to reconsider the application without considering the "6-foot rule" set forth in 9 NYCRR 53.1 (5). One of the other factors relied on by respondent, however, is that petitioner's establishment does not meet the statutory definition of a restaurant ( see, Alcoholic Beverage Control Law § 3; § 81 [2]). Petitioner concedes on appeal that it does not qualify for an on-premises restaurant-wine license and has indicated that it intends to submit an application for an on-premises liquor license. Respondent's disapproval of the instant application thus was proper, and the judgment must be reversed and the petition dismissed.