(dissenting). Petitioner, in this article 78 proceeding, seeks to have annulled the refusal of the State Liquor Authority to grant him a permit to remove his licensed package store premises from one site to another. Involved are many personal considerations affecting petitioner, a licensee for several decades and with an unblemished record, motivating consideration in his favor, if it were proper and if there were power to do so. The difficulty is that the State Liquor Authority exclusively has the administrative discretion to grant or refuse the issuance of such a permit, in the same maimer that it has an administrative discretion to grant or refuse a license to a new applicant. Here is not involved a quasi-judicial discretion requiring for its support substantial evidence to sustain the conclusion reached. On the contrary, if the action is warranted in reason, that is, is not capricious or arbitrary, it may not be reviewed or disturbed. (Matter of Fiore v. O’Connell, 297 N. Y. 260 and the cases cited therein; see, also, Matter of Barry v. O’Connell, 303 N. Y. 46, 50-51.) Quite irrelevant are eases involving discretionary determinations after hearings based upon findings, as in license revocation proceedings.
Petitioner’s original premises, which he still occupies, is some 350 feet from a girl’s vocational school. Unfortunately, these premises are part of a larger area being condemned to provide a new housing project. He would remove his licensed premises to another place, which is only 115 feet from the side entrance to the school, although it is some 242 feet from the school’s main entrance. Petitioner’s application for removal was rejected, not because of any statutory rule excluding licensed premises from within 200 feet on the same street or avenue from a school, but simply on the ground, based on administrative discretion, that it was within the area measured by a radius of 200 feet from the school. This determination was made following the recommendation of the New York City Board of Education that it was contrary to the best interests of the children attending the school to have the licensed premises in such close proximity to the school and that such location would *1014adversely affect the maintenance of the discipline of the students. After the refusal to grant the permit, petitioner asked for reconsideration, and, thereafter, the Authority advised him that the matter had been submitted to the members of the Authority at their regular meeting., but the request for reconsideration had been denied.
It seems that, following the denial of the application, the principal of the school, upon being advised about the personal factors affecting the licensee, had said that if he had known what he now knew he would not have been adverse to the relocation of the licensed premises. Unfortunately, it is neither the function of the Authority nor that of the Board of Education, in determining how school children would be affected by the location of licensed premises to base their conclusion, primarily, upon personal factors affecting the applicant, no matter how poignant those circumstances may be. More particularly, the views of the school principal did not necessarily reflect the views of the Board of Education. Consequently, the Authority was not bound to change its position as a result of this change of view by the school principal.
Each application, and especially the situation affecting each school, is very definitely one that must be considered on a case-to-case basis. Although it is not necessary to note this to justify the conclusion reached by the Authority, it is easy to see that a girl’s vocational school might very well require stricter precautions than would a school of another type. And, so too, when a church is involved the considerations would be substantially different, with possibly different result.
There is no suggestion in this record, nor does petitioner urge that there was any departure from proper procedure in this matter, or that he was subjected to any unfairness in the determination of his application.
Nor does it follow that because the Authority relied heavily on the Board of Education that it failed to exercise its own judgment. The issue turning on what was good for school children, the Authority was entitled to give considerable weight to the views of a substantially responsible agency having expertness and disinterestedness as its mark. In this situation, it could weigh the harshness of the result on the fortunes of the petitioner as against the weight to be assigned to the interests of school children. On this view there is no deficiency in the record. And, of course, there is no showing of unreasonableness in the result.
While the particular circumstances of this case stir the conscience, a greater evil would be perpetrated if the courts should overturn the discretion exclusively lodged in the regulating authority, or in the alternative, utilize the suggestive device of remanding matters to the Authority, because the court has no power to act in the premises by itself, in order to bring its heavy power of persuasion to bear on the Authority.
Accordingly, the order dismissing the petition and denying the application should be affirmed, with costs to respondent.
Valente and McNally, JJ., concur in Memorandum by the Court; Frank, J., concurs in the result in opinion; Breitel, J. P., dissents and votes to affirm in opinion, in which Rabin J., concurs.
Order reversed and the matter remanded to the Authority for further consideration.