TJPC Restaurant Corp. v. State Liquor Authority

OPINION OF THE COURT Simons, J. Petitioner challenges a determination of respondent which found that petitioner had permitted licensed premises to become disorderly because female entertainers were allowed to dance in the nude (see Alcoholic Beverage Control Law, § 106, subd 6). In Matter of Beal Props, v State Liq. Auth. (37 NY2d 861, revg 45 AD2d 906), the Court of Appeals held that in the absence of a regulation by the agency giving notice that conduct not lewd or indecent per se was proscribed, the agency could not impose sanctions for such conduct on licensees. The challenged conduct on petitioner’s premises was not found by the respondent to be lewd or indecent per se (indeed on this record it could not be). It occurred on January 3, 1975, prior to the adoption of 9 NYCRR 53.1 (r), (s) or subdivision 6-a of section 106 of the Alcoholic Beverage Control Law which now specify various types of prohibited performances. Accordingly, the determination of the authority must be annulled. The dissent asserts that respondent’s determination may [443] be sustained because petitioner violated subdivision B of section 44-8 of the Municipal Code of the City of Rochester which prohibits nudity in a "public place”. That ordinance is patently unconstitutional for overbreadth and may not be relied upon as giving notice of prohibited conduct (see Salem Inn v Frank, 501 F2d 18, 20-21, affd on this issue sub nom. Doran v Salem Inn, 422 US 922, 933-934; Lucifer’s Gate v Town of Van Buren, 83 Misc 2d 790). Several other points in the dissent should also be considered. First, it is stated that Matter of Beal Props. v State Liq. Auth. (supra) is not authority for our decision because in Beal there was not a specific finding that the licensee violated subdivision 6 of section 106 of the Alcoholic Beverage Control Law. On the contrary, the authority made precisely that finding in Beal (supra, 45 AD2d at p 906). Second, it is said that unlike Beal, the licensee in this case had notice of the proscribed conduct. The ordinance, inasmuch as it is unconstitutional, may not be relied upon to provide notice, whether or not it was challenged. If the equities are to be considered, the petitioner claims reliance upon public statements by various public officials that in their opinion performances similar to those in petitioner’s premises did not violate the ordinance. While these statements do not provide any defense to violation of a valid law, they reasonably permit petitioner to argue that he did not have notice of the prohibited conduct in law or in fact. Third, it is not clear what significance we are asked to attribute to the arrest of petitioner’s dancers for violating the ordinance, but the facts are that they were arrested and given an adjournment in contemplation of dismissal in exchange for their promise not to test the constitutionality of the ordinance. Fourth, in the absence of a finding that the performances were lewd or indecent per se, the credibility of the witnesses or the subject of substantial evidence have no relevance on this appeal. Finally, to answer the statement posed at the outset of the dissent, the City of Rochester may not regulate the performance in the licensee’s premises, for the State has preempted the field and given the State Liquor Authority exclusive jurisdiction to regulate such premises (Alcoholic Beverage Control Law, § 2; Tad’s Franchises v Incorporated Vil. of [444] Pelham Manor, 42 AD2d 616, affd 35 NY2d 672; Matter of Town of Fenton v Tedino, 78 Misc 2d 319; Grundman v Town of Brighton, 5 Misc 2d 1006, 1009). If there was any doubt on the point, the State now has specifically enacted legislation regulating entertainment on licensed premises (see Alcoholic Beverage Control Law, § 106, subd 6-a). The determination should be annulled.