Yi Ho Garden, Inc. v. New York State Liquor Authority

25 A.D.2d 515, 267 N.Y.S.2d 71, 1966 N.Y. App. Div. LEXIS 4948

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1966
• Status: Published

Opinion

Determination denying petitioner’s application for a restaurant liquor license unanimously annulled, on the law, and the matter remanded to the State Liquor Authority for the purpose of processing the application, with $50 eosts to petitioner-appellant. Denial by the Authority of a restaurant liquor license to petitioner was premised on the proximity of a church. The record, however, establishes beyond reasonable argument that the building in question, for the proximity of which the application was denied, was not used exclusively or predominantly as a church with only incidental uses being devoted to nonchureh purposes (Alcoholic Beverage Control Law, § 64, subd. [7]; cf. Matter of China City v. New York State Liq. Auth., 19 A D 2d 832). On the contrary, the evidence of use, the testimony of neighbors, and especially the testimony of the director of the building enterprise, negatived exclusiveness as well as claim of exclusiveness (as distinguished from any waiver of any restriction) for church purposes. Consequently, the finding of exclusiveness was arbitrary and without substantial evidence. The added make-weight finding by the Authority that there would be a hazard to law enforcement by licensing an additional liquor-dispensing restaurant in this busy “Chinatown” area in proximity to the church is no more strongly based. Beside the eonelnsory statement there is nothing to support this finding, and all the testimony of affected persons is to the contrary.

Concur Breitel, J. P., McNally, Stevens Eager and Steuer, JJ.