(dissenting). I dissent. The matter of immediate concern here is not whether petitioner should be granted a liquor license, but whether the Authority’s action with respect to his application was within or beyond the scope of a lawful exercise of the discretion vested in it by the Alcoholic Beverage Control Law. It is unquestionable that the discretion is broad and carries with it an onerous responsibility to see that such licenses are not improvidently granted. Nor is it here suggested that the issuance of the certificate of good conduct in any manner diminishes the discretionary power of the Authority to refuse the issuance of any license. Without such a certificate, the refusal of a license is mandatory. After the certificate of good conduct, the action of the Authority then becomes a matter of discretion, which calls for consideration of something beyond the certificate of conviction and the implications limited thereto. In this ease, the Authority’s notice of disapproval is, in terms, tied to the certificate of conviction. That there was consideration of other matters is, perforce, a matter of assumption only. Nor do the self-serving conclusions of the Authority’s answer herein nor the arguments of its brief supply the lack.
If a ruling were to be made that the board, in passing on the delicate subject of issuing a license to a person who had previously been convicted of a felony, is justified in acting solely on the existence of the certificate of conviction, such a ruling would warp the clearly expressed intent of the law. Section 126 (subd. 1) thereof bars from the sale of alcoholic beverages “ A person who has been convicted of a felony * * *, unless subsequent to such conviction such person shall have received an executive pardon therefor removing this disability or a certificate of good conduct granted by the board of parole pursuant to the provisions of the executive law to remove the disability under this section because of such conviction.”
*127That section does not mandate the issuance of a license to one whose disability has been so removed, but seems to me instinct with the concept that consideration may be given to circumstances of the conviction as well as the extent to which rehabilitation of character has occurred.
Perhaps it would have been more salutary, certainly simpler, if no provision had been made for the removal of the prescribed disability. Clearly there was reason in the framing’ of this particular legislation. We cannot assume that the certificate of good conduct required from the board of parole was inserted as a mere automatic or mechanical device to permit a person receiving it to make a futile application for a license. It is somewhat cynical to suggest that the use, in the certificate of good conduct, of the words, “ for the following purpose only: To end disability under Section one hundred twenty-six (126) of the Alcoholic Beverage Control Law”, implies that the Parole Board does not thereby vouch for the good conduct of the person so certified.
In the light of the extensive showing of the circumstances of the conviction and of the lifetime record of petitioner, I agree with the court at Special Term that the action of the Authority in this case was arbitrary and unreasonable.
Foster, P. J., Bergan, Coon and Halpern, JJ., concur in Per Curiam opinion; Imrie, J., dissents, in an opinion.
Order reversed, and the petition dismissed, and the determination of the State Liquor Authority confirmed, without costs.