Petitioner, the operator of a restaurant and club at premises 5-7 East 59th Street, Borough of Manhattan, sought a cabaret license for the premises. The application was denied and petitioner-respondent (herein petitioner) instituted an article 78 proceeding which resulted in an order annulling the determination. The majority are now reversing the order appealed from and reinstating the determination of respondent-appellant, Commissioner (herein appellant).
The majority say the essential basis for denial of the license is the appellant’s apprehension that there would be mingling of waitresses (called Bunnies) and entertainment personnel with the customers. They hold that appellant may properly consider the possibility of such infraction of regulations, and the resulting apprehension on appellant’s part constituted a reasonable basis for denial of the application for a cabaret license.
After the application for a license was filed, a hearing was held. At the conclusion of the hearing the Deputy Commissioner before whom the hearing was held made a report to appellant in which he referred to the contents of various issues of "The Playboy Club News ” (a publication of Playboy Clubs International, a corporation separate from applicant though some personnel are common to both), the proposed costume of the waitresses, or Bunnies, the possibility of mingling, and concluded ‘ * it would not be in the public interest to grant a license. ’ ’ He recommended to appellant that the license be denied.
Appellant in his determination, which is the basis of this proceeding, refers to the policy against mingling, asserts that peti*348tioner’s “ main appeal to its prospective customers is the lure of its scantly-clad waitresses ”, and similarly concludes that to grant a license would not be in the public interest.
Before examination of the grounds upon which the refusal was based, it is well to look to the source of appellant’s power. The appellant has jurisdiction to issue licenses for cabarets (Administrative Code of City of New York, § B32-296.0 et seq.). Certain conditions precedent must be met before the license is issued. “ A license shall be issued only after the commissioner (1) is satisfied that the applicant is a fit and proper person, (2) shall have caused an inspection to be made of the premises to be licensed and is satisfied that such premises comply with all laws and rules and regulations of the department of buildings, the fire department, the health department, and the department of water supply, gas and electricity, insofar as the same are applicable thereto, and (3) is satisfied that the premises to be licensed are a safe and proper place to be used as a public dance hall, cabaret or catering establishment. For the purpose of facilitating the inspections prescribed by this section, the commissioner is authorized to call upon the head of any city agency and such agency and its employees shall make such inspections as may be required.” (Administrative Code, § B32-297.0, subd. d.)
No question is raised under paragraph (2) of subdivision d of section B32-297.0, so no further discussion need be devoted to it.
Under the section and subdivision quoted two items remain for resolution by the appellant prior to the issuance of a license. The appellant must be satisfied the petitioner is a fit and proper person, and the premises must be a safe and proper place for a cabaret.
The issue thus presented on this appeal is a narrow one. In the absence of a determination that petitioner is not a fit and proper person, or that the premises are not safe and proper for the use intended, does a denial of the application, for the reasons stated, on the expressed ground that to grant same would not be in the public interest, constitute a reasonable basis for refusal within the meaning of the law.
‘ ‘ Mingling ’ ’, to which appellant referred, may be construed to mean fraternizing with the customers or patrons. It is forbidden by the Rules and Regulations of the State Liquor Authority, and may constitute grounds for revocation of the license. Petitioner has a liquor license which, from the record, has neither been revoked, nor proceedings taken toward that end. It is persuasive, therefore, that mingling between patrons *349and Bunnies, who are now actively employed in the premises, has not occurred. There remains the prospect of mingling between patrons and entertainers, prospective employees, should the cabaret license be granted. It is doubtful that the mere existence of the prospect is reasonable grounds for the action taken by appellant.
The appeal of the “ scantily-clad waitresses ” to the patron doubtless does exist. Every place of entertainment, and even some without, which employs females may have levelled against it the charge of feminine appeal as an added inducement to patronize the establishment. The garb, or lack of it, is an undeniable factor. It is reasonable to suppose, and one might say it is common knowledge, that at least a part of any cabaret’s attraction lies in the costume of its chorus line or entertainers, including the somewhat abbreviated costumes occasionally worn.
The difference in the ease before us, however, is that these costumes remind the observer of or seek to identify the wearer with an animal, especially one noted for reproductive prolificness, to wit, a bunny. One might even view this as an affront to the human personality, and for that reason objectionable. Whatever one’s views are on the matter, a personal antipathy is not a sound basis upon which to rest an administrative determination. Petitioner can claim no right to preferential treatment, but it is entitled to have its application evaluated on such objective criteria as are applied to other applications of a similar nature.
Possibly the hearing produced information which would refute any contention of unequal treatment, and upon which the relevant and necessary factual findings could properly have been made. This, however, was not done. The determination was premised upon the nebulous phrase “ the public interest ” with appellant as the sole arbiter of the meaning of the language. When a determination is so based it should be related to the customs, usages, mores, laws and moral tone of the times. Before conclusive action is taken assertedly in the public interest, specific and concrete findings with respect to the aforementioned factors should be made. This is especially important in matters of this nature, where the scope of judicial review is so limited. A more precise and readily definable standard, based upon findings which permit of objective review, is desirable. Unless that is done we may find that a subjective determination of evidentiary matter has been confused with an objective finding in order to reach a predetermined result.
The record discloses that in places where Playboy Clubs are in operation they have operated within the laws of the respective *350jurisdictions. While that is not determinative of the issue here, it is a factor which should he considered in light of petitioner’s asserted willingness to comply with all applicable laws, rules and regulations of this jurisdiction. Indeed, albeit under protest, it has modified its rule in reference to admissions because of the ruling of the State Liquor Authority.
The club and restaurants, sans cabaret entertainment, are presently in operation, presumably with Bunnies as waitresses, and apparently without disorder. This might be illustrative of the fact that what to one observer may be sensually provocative (i.e., the bunny costume), may be to another an attempted juvenescent compensation. Of course the converse is true. Much depends upon the mind of the beholder and the setting in which the revelation occurs.
Any rule or regulation of appellant adopted in accordance with the powers conferred (Administrative Code, § B32-305.0) has the force and effect of law. Appellant is given the power to revoke or suspend a license ‘ ‘ for any violation of law, or upon the ground that disorderly, obscene or immoral conduct is permitted on the licensed premises, or for other good cause” (Administrative Code, § B32-306.0). Such language imports a condition that the premises be in operation prior to application of the rule and the finding of violation.
Appellant may refuse to issue a license, but such refusal must be in accord with the law as declared or reasonably implied. Appellant should not create or establish a new standard independent of those enumerated. In the absence of a finding that petitioner is not a fit or proper person, or that the premises are not a safe and proper place, to conclude that petitioner’s conduct would be violative of law is to prejudge the matter without a reasonable basis therefor.
The use of the words ‘ ‘ fit and proper ’ ’ and ‘ ‘ safe and proper ” is intended, legislatively, to establish standards, the application of which must depend upon precedent factual findings, not upon eventualities. The record is inadequate to support the determination made because of the absence of such factual findings. Such deficiency does not permit effective judicial review.
It is not the court’s function to make findings for the appellant even if it could do so, and since appellant’s action may be overturned only if it is arbitrary, the matter should be remanded to him for reconsideration and the making of appropriate findings if in his opinion the present state of the record so permits, or he may deem it advisable to hold further hearings. It is no solution to the problem to substitute our judgment for the supposed *351standards applied by the appellant, and indeed it might be highly improper to do so. The real difficulty is that the appellant has not on the one hand stated valid grounds supported by the record or on the other hand stated grounds permitted by the statute. Since there may be statutory grounds supportable by the record the matter should be available for him to review.
I therefore dissent and vote to reverse and remand.
McNally and Eager, JJ,, concur with Botein, P. J.; Stevens, J., dissents and votes to reverse and remand in opinion, in which Breitel, J., concurs.
Order entered on or about January 18, 1963 reversed, on the law, with $20 costs and disbursements to the respondent-appellant, and the determination of the respondent-appellant, Commissioner of Licenses of the City of New York, reinstated.