245 A.D. 176 | N.Y. App. Div. | 1935
The local board disapproved respondent Amigone’s application for an on-premises consumption license to sell liquor, wine and beer, upon the ground that the premises were on
The case comes to us in certiorari, on the petition of the church, pursuant to section 121 of the Alcoholic Beverage Control Law, which authorizes the proceeding, and under sections 1290 and 1304 of the Civil Practice Act, which prescribe the method for starting it, set up the questions to be determined, and the tests to be applied in their determination. The provisions of the Alcoholic Beverage Control Law which must be applied are as follows:
“ § 64. License to sell liquor at retail for consumption on the premises.
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“ 7. No retail license for on-premises consumption shall be granted for any premises which shall be on the same street or avenue and within two hundred feet of a building occupied exclusively as a school, church, synagogue or other place of worship; the measurements to be taken in a straight line from the center of the nearest entrance of such school, church, synagogue or other place of worship to the center of the nearest entrance of the premises to be licensed.”
The sole question to be decided is, is petitioner’s building occupied exclusively as a church or place of worship?
The church edifice is a substantial structure of stone and brick. It is assessed at upwards of $200,000 and the trustees carry fire insurance of $108,000 upon it. It is adequately equipped and furnished for church service purposes as generally understood. It has a pastor, who is an ordained minister of the gospel. It is a regularly organized Presbyterian church; is a member and constituent unit of the Presbytery of Buffalo-Niagara, as appears by the records of the General Assembly of the Presbyterian Church for the year 1934. It has a communicant membership of fifty-four. The usual services of worship are according to the Presbyterian faith, consisting of a preaching service, and sessions of the Sunday School on each Sabbath have been continuously conducted since its organization in 1861 to the present. It administers the communion at stated intervals. It is available and is used for funeral and wedding services. It is supported by voluntary contributions; has a budget and does not receive assistance from sources other than its own membership. The congregation being small, the
It appears that the sexton’s apartment, which is in a part of the building located just over the chapel at the rear of the church, was occupied by a person not the sexton of the church, for a period of time which expired before the license was granted, at a nominal rental. The apartment was not needed for a residence for the sexton during this time. From the nature and use of the apartment, it is at once apparent that this occupancy in no wise changed or modified the character of the premises as a building exclusively used as a church. It was incidental, and not inconsistent with the primary and paramount use of the building for the holding of religious services, and was not of a nature to detract from the predominant character of the building as a place of worship. (People ex rel. Clausen v. Murray, 5 App. Div. 441.)
Because of the many evils -attendant upon traffic in liquor, it is subject to regulation by the State in the exercise of its police power. It is fundamental that regulations by way of exceptions in respect to churches and schools must be liberally construed in their favor, and strictly against applicants for licenses to sell liquor, wine and
The strength or weakness of this organization, the number of its members, the effectiveness of its ministry, its benefit to the community, the likelihood of its continued existence; these and similar questions are not pertinent to the decision we must make. If this is a church in the sense that its building is used exclusively for a place of worship, the statute, as well as public policy, forbids the maintenance of a retail liquor business within two hundred feet of it. We have come to the opinion that petitioner’s building is used exclusively for church and worship purposes, and that the determination of the Liquor Authority that it is not, is, contrary to and against the weight of the evidence.
It follows that the determination should be annulled, with fifty dollars costs and disbursements.
All concur. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.
Determination annulled, with fifty dollars costs and disbursements.