(concurring). In this article 78 proceeding, the petitioner appeals from a Special Term order dismissing his petition for an order annulling the determination of the State Liquor Authority which denied his application for the removal of his package store from its present location to another on the same street and about two blocks away.
The petitioner, now in his late fifties, has held a license at his present location for 23 years. It is asserted without denial that throughout these many years he has never been charged with a single violation. A steady patronage and neighborhood good will have enabled him to provide his children with extensive education, as well as to meet expenses for an invalid wife who has three times been operated upon for cancer. The petitioner, himself, suffers from an incurable ailment which affects the mobility of his limbs.
Several years ago, a large housing project was erected across the street from the petitioner’s store. Thereafter a plan for an additional project was announced which will result in the demolition of the building where the petitioner’s business is located. Anticipating this change, the petitioner purchased a small building two blocks to the east, into which he desires to move.
Jane Addams Vocational High School for Girls, in the vicinity, is situated south of 163rd Street and has frontage on both Union and Tinton Avenues. The nearest point of the school building to 163rd Street is 115 feet distant. The petitioner’s present location is on the south side of 163rd Street at the corner of Forest Avenue, which is one block west of Tinton Avenue. The store to which he proposes to move is on the southerly side of 163rd Street, 17 feet east of the easterly side of Union Avenue on whose westerly side stands the easterly wall of the school. It should be noted that the main entrance to the school is on Tinton Avenue and is closer to the petitioner’s present location than it would be to the proposed new one. The distance *1012of the new location here sought is 242 feet from the main entrance of the school, but within a radial area of 200 feet. Nevertheless the proposed package store will not be on the same street as either frontage of the school. Thus the 200-foot rule does not apply. (Alcoholic Beverage Control Law, § 105, subd. 3. Matter of Jacob Oberson, Inc. v. Seyopp Corp., 251 App. Div. 170; Matter of Pinkowitz v. O’Connell, 271 App. Div. 919; Matter of Pierse v. Zimmerman, 255 App. Div. 708.)
On June 6, 1956, the New York City Alcoholic Beverage Control Board recommended approval of the application for removal. At a meeting on June 14-15, 1956, the State Liquor Authority deferred action on the application and directed one of its employees to ascertain the views of the Board of Education. Thereafter the Authority received a letter from the board which stated in part that, “ it is contrary to the best interests of the children * * “ to have this liquor license transferred * * * in such close proximity to that school.” The record indicates that this communication was predicated upon an expression of views by the school principal. On July 16, 1956, the Authority disapproved the transfer specifically upon the recommendation of the Board of Education and the application of the 200-foot rule. As already indicated, that rule does not apply here. No hearing was held, as indeed none is required, by the State Liquor Authority to enable the petitioner to meet the objection, if he could. It is significant that the affidavit of the chairman of the Authority, submitted in opposition, does not recite a single fact in addition to the recital of the Board of Education letter upon which the determination was predicated.
The petitioner alleges, without denial, that after he was advised of the board protest, he consulted the principal of the school. That official told the petitioner that had he been aware of all the circumstances he would have had no objection to the transfer.
It is now beyond cavil that the record upon which an administrative agency predicates its determination should be sufficiently complete so that a reviewing court may be in possession of all the facts (Matter of Barry v. O’Connell, 303 N. Y. 46, 52; Matter of Scudder v. O’Connell, 272 App. Div. 251). The court should not be required to speculate as to the reason for the administrative ruling (Matter of McCall Corp. v. Gerosa, 2 A D 2d 358, 361; Matter of Socony Vacuum Oil Co. v. Murdock, 165 Misc. 713, 719).
There is not a scintilla of proof in the record to justify the conclusion that the new location sought by the petitioner would adversely affect the discipline, morale or conduct of the girls attending the school. Not a single complaint in that regard has ever been leveled against the petitioner. Moreover, the establishment woulá not be a bar and grill, where adolescents might congregate or habitues annoy or molest young women, but a package store for off-the-premises consumption.
Here we have a determination of the Authority based upon a letter which in turn is predicated upon views expressed by one apparently not in possession of all the facts. On the argument of this appeal, counsel for the respondent was closely questioned upon what additional facts the determination was bottomed, other than the letter from the Board of Education. None were suggested.
The Authority is vested with wide powers and broad discretion. But the powers and discretion thus reposed must be exercised by it alone. It may not abdicate its functions, surrender them to another agency, or rely wholly upon hearsay (Lloyd Sabaudo Societa v. Elting, 287 U. S. 329, 339; Matter of Dillon v. Schapp Beef Co., 254 App. Div. 790; see, also, Matter of Greenebaum *1013v. Bingham, 201 N. Y. 343, 347-348; Matter of New York Water Service Corp. v. Water Power & Control Comm., 283 N. Y. 23, 31). While it may seek the views of others in reaching a determination, it should not as a pro forma act predicate its decision solely upon the recommendation of others, no matter how well-intentioned that may be.
The petitioner, after almost a quarter century in his business, is in the unenviable position of suffering its complete loss because of circumstances entirely beyond his control. The loss of his license is not of the petitioner’s making. He could do nothing to prevent the condemnation for a paramount public use of the property where he is located. His plight merits fair and sympathetic treatment. Within the limits of the authority granted to any arm of government, be it judicial or administrative, the exercise of discretionary power vested in a governmental agency includes the application of equitable considerations, fairness and a nice balancing of all of the factors involved in the impact of the determination upon those concerned. Anything less defeats the essential purpose of the grant of discretionary power. Therein lies the great division between it and the performance of a mere ministerial act. The exercise of discretionary power perfunctorily, superficially, by rote, or as a ministerial act, does not fulfill the legislative intent in the grant of such power.
We are not prepared to say that the determination of the Authority was arbitrary, capricious, or illegal. Upon this record, however, it does appear that there is an insufficiency of facts upon which to base any final determination (Matter of Drew v. State Liq. Auth., 2 A D 2d 75, affd. 2 N Y 2d 624).
The order of Special Term should be reversed and the matter remanded to the Authority for reconsideration in accordance with the views herein expressed.