Du Barry Caterers, Inc. v. Berkery

Per Curiam. Petitioner has, for eleven years, operated a catering business for weddings, dances, and organization functions. In connection with such activities, it leases meeting rooms to social, civic, fraternal and religious groups. A subordinate lodge of a responsible national fraternity organization had contracted with petitioner to lease the upper floor of petitioner’s premises on the first and third Mondays of each month. On March 19, 1951, one of its regular meeting nights, the lodge held a meeting in the course of which immoral and indecent entertainment was presented. After due notice and hearing, the police department revoked petitioner’s two cabaret licenses on the ground that it had permitted its premises to be used for unlawful purposes. The record affirmatively shows that no representative of petitioner was present during the obscene performance. More [378] over, the record fails to disclose evidence that petitioner was ever apprised of the type of performance that was to be conducted by the fraternal lodge, its lessee. While petitioner’s general manager was present at the start of the meeting, he left the room before any indication was given of the impropriety of the performance that was to follow. Respondent relies chiefly on two facts to support an inference of knowledge by petitioner. The chairman of the entertainment committee of the fraternal organization, who gave a short talk prior to the performance, concluded by cautioning the audience against applause or loud talking and instructed them to signify their approval only by snapping their fingers. If petitioner’s manager had heard this statement, petitioner might be chargeable with knowledge of the type of performance that was to follow. The record demonstrates, however, that he did not. On direct examination by Lieutenant Deutsch of the division of licenses, the police officer testified: “ [The Chairman of the Entertainment Committee] told them about the kind of affairs they would have to" entertain members and that they would have a good time and would have a drive to get new members. As he was talking, I noticed Mr. Albanese [petitioner’s manager] start for the door and with him was an unknown man and I saw them leave by the door at the main entrance. After the Chairman of the Entertainment Committee said, ‘ by the way fellows, you can’t applaud, you have to snap your fingers. ’ “ Q. Who said that? A. The Chairman of the Entertainment Committee. He said ‘ you must only snap your fingers ’, and with that he introduced Mr. Siegel.” While this testimony indicates that Albanese left before the statement was made, any ambiguity was removed on cross-examination where the witness testified: ‘ ‘ Q. Mr. Albanese as you say, walked out before the Chairman of the Entertainment Committee introduced the Master of Ceremonies? A. He did. “ Q. Before the Chairman of the Entertainment Committee was through with his talk? A. That’s right.” There is, therefore, no basis for any finding that Albanese was present when the chairman of the entertainment committee requested those present not to applaud but to snap their fingers. It is true that Albanese himself was not called as a witness at the hearing. It is clear, however, that based upon the police department’s affirmative case no knowledge tending in any way [379] to show the character of the performance about to be given was ever brought home to the petitioner. Petitioner’s attorney stated on the record that he did not plan to call Albanese as a witness because he did not think it necessary. Lieutenant Deutsch stated to Chief Berkery, the deputy chief inspector who conducted the hearing, that: “ If the licensee doesn’t wish to call Joseph Albanese as a witness, we will not do so. I will hold a separate hearing on him in connection with his cabaret employee’s identification card and I think we shouldn’t prejudice the licensee in this hearing by bringing that issue in. ’ ’ On the record as a whole, it cannot be said that the failure to call Albanese should operate in any way to the prejudice of the petitioner. The second element relied upon to attribute knowledge to petitioner was the fact that nonmembers were required to pay an admission charge at this meeting. While such charge would indicate that there was to be special entertainment, it would in no way put petitioner on notice that such entertainment was to consist of indecent and immoral acts. Particularly is this true where the entertainment was being given by a constituent lodge of one of a well-known national fraternal order. The learned dissenting opinion states that this is not the first breach of moral decency by this petitioner. This statement apparently is based upon the following language in the affidavit of the Fourth Deputy Police Commissioner George Mitchell: “ The records of the Police Department indicate that the licensee under its present management has been guilty of a similar violation occurring on April 19, 1944, at which time the license was suspended for two days for obscene language'during the conduct of a performance.” At the hearing, however, the only reference to this alleged prior violation was made by the president of the petitioner who testified that in 1944, when petitioner was operating the premises as a night club, the following had occurred: “ I happened to book a show the way we would through agents and there was some complaint. I don’t know what happened and I was summonsed here. They used obscene or improper expressions or words in the show. I was questioned by Commissioner 0 ’Leary and I told him how I engaged shows, taking them from night clubs for a week or two weeks and also how I was engaged in the kitchen as well as the office. I did my part to supervise the place and I can say very proudly that I had one of the nicest night clubs in Brooklyn.” [380] Petitioner’s president further testified on cross-examination that its license had been suspended for two days, but that execution of the sentence had been suspended; this fact was conceded by the police department in its answer. It is to be noted that execution was suspended “ pending the future conduct of the cabaret.” Apparently, in the seven years between that violation and the present one, petitioner’s conduct was unexceptionable. We do not believe that the occurrence of these two incidents during eleven years of petitioner’s operation raises any inference that petitioner impliedly consented to the use of its premises for an indecent performance or that it failed to exercise proper supervision over its lessees. There is no substantial basis in fact or in law for the action taken by the police commissioner. The revocation of petitioner’s cabaret licenses should be annulled and the police commissioner directed to reinstate such licenses. Settle order.