Becker v. New York State Liquor Authority — 21 N.Y.2d 289

Majority

p. 289

In the Matter of Otto Becker, Appellant-Respondent, v. New York State Liquor Authority, Respondent-Appellant.

Argued December 6, 1967;

decided December 29, 1967.

William I. Cohen, Gerard Zwirn and Benjamin Cohen for appellant-respondent.

I. The courts will annul an administrative determination which does not, on the entire case, measure up to the express legislative standards set forth in CPLR 7803 (subds. 3, 4). (Matter of Stork Rest. v. Boland, 282 N. Y. 256 .) II. The evidence adduced before the Authority was insufficient to sustain the charge and the finding that homosexuals, degenerates and/or undesirables were suffered or permitted to he

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and remain on the licensed premises and conduct themselves in an offensive manner contrary to good morals on November 2, 1966. (Wisser Oil Co. v. Ganfrank Holding Corp., 163 Misc. 357 ; Matter of Farley v. Wurz, 217 N. Y. 105 ; Matter of Stanwood United v. O’Connell, 282 App. Div. 1045 , 283 App. Div. 79 , 306 N. Y. 749 ; Matter of Flo Inn v. O’Connell, 305 N. Y. 602 ; Matter of Coney-O-Tavern v. State Liq. Auth., 25 A D 2d 549 ; Matter of Migliaccio v. O’Connell, 283 App. Div. 1112 , 307 N. Y. 566 ; Matter of Konopka v. Bruckman, 265 App. Div. 1068 , 290 N. Y. 777 ; Matter of Mihale v. O’Connell, 279 App. Div. 651 , 303 N. Y. 874 ; Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150 ; Matter of Loubor Rest. v. Rohan, 10 A D 2d 627 ; Matter of Ekim Broadway Rest. Corp. v. State Liq. Auth., 18 A D 2d 619 .) III. To destroy this business and petitioner’s investment upon such vague and incompetent proof constitutes an arbitrary act, which the courts will not hesitate to reverse. (Matter of Stolz v. Board of Regents, 4 A D 2d 361 ; Matter of El Caribe Rest. v. New York State Liq. Auth., 19 A D 2d 786 ; Matter of Village Rathskeller v. State Liq. Auth., 26 A D 2d 543 .)

Joseph S. Ryan and Hyman Amsel for respondent-appellant.

I. The testimony of the police officer, credited by the Authority, constituted substantial evidence that petitioner violated subdivision 6 and section 106 of the Alcoholic Beverage Control Law in that he suffered or permitted the licensed premises to become disorderly by allowing homosexuals, degenerates and/or undesirables to be and remain on the licensed premises and conduct themselves in an offensive and indecent manner contrary to good morals. Hence, that portion of the order of the Appellate Division, appealed from by petitioner, which confirmed the determination of the Authority, should be affirmed. (Shonfeld v. Shonfeld, 260 N. Y. 477 ; Matter of Katz’s Delicatessen v. O’Connell, 277 App. Div. 363 , 302 N. Y. 286 ; Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327 ; Matter of Miller v. Kling, 291 N. Y. 65 ; Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150 ; Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65 ; Matter of Gilmer v. Hostetter, 20 A D 2d 586 ; Matter of Ekim Broadway Rest. Corp. v. State Liq. Auth., 18 A D 2d 619 ; Matter of Loubor Rest. v. Rohan, 10 A D 2d 627 ; Labor Bd. v. Nevada Copper Co., 316 U. S. 105 ; Labor Bd. v. Grey

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hound Lines, 303 U. S. 261 .) II. The penalty imposed by the Authority (60 days suspension, 30 days forthwith and 30 days deferred, with a $1,000 bond claim) was a reasonable exercise of discretion by the Authority. The court below was in error, as a matter of law, when it ruled, in effect, that the full measure of penalty so imposed was excessive and an abuse of discretion by modifying such penalty to eliminate the provision for the $1,000 bond claim. So much of the order of the Appellate Division, appealed from by the Authority, as modified the measure of penalty, should be reversed, and the full measure of penalty assessed by the Authority should be reinstated and confirmed. (Matter of Lynch’s Bldrs. Rest. v. O’Connell, 303 N. Y. 408 ; Matter of Vickery v. Rohan, 14 A D 2d 492 ; Matter of Desimone v. New York State Liq. Auth., 14 A D 2d 608 ; Matter of Fulton Bar & Grill v. State Liq. Auth., 11 A D 2d 771 ; Matter of Char Sol Seafood House v. New York State Liq. Auth., 13 A D 2d 924 ; Matter of Mitthauer v. Patter son, 8 N Y 2d 37 ; Matter of McGinnis’ Broadway Rest. v. Rohan, 6 A D 2d 115 , 6 N Y 2d 770 ; Matter of Stolz v. Board of Regents, 4 A D 2d 361 .)

We are faced here with the two-fold problem of what behavior on the part of homosexuals constitutes disorder in a public place and when disorderly behavior is such that the licensee should reasonably have known of it. (Alcoholic Beverage Control Law, § 106, subd. 6.)

The police officer in this case testified that he was in the subject bar and grill for about 35 minutes.

‘ ‘ During the time that I was seated at the table I observed approximately 14 males dancing in the rear portion of the premises. They were dancing to a slow record, and they were embracing one another and gyrating and moving * * *

“In the course of dancing they were feeling each other’s private parts and posteriors.”

In resolving the first issue regarding what constitutes disorderly behavior in licensed premises, there is no sound reason to distinguish between the actions of homosexuals and that of heterosexuals with respect to the dancing of slow dances under circumstances such as this. We have in the past reversed orders annulling liquor licenses where there has been conduct suscep

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tible to varying assessments of propriety. (See, e.g., Matter of Kerma Rest. Corp. v. State Liq. Auth., 21 N Y 2d 111 , involving some instances of kissing between males.)

Nevertheless, a line must be drawn somewhere between which sexual acts are to be permitted in public places and which are not. In our view, the line must be drawn at public feeling of private parts. In this regard, we would not distinguish between the activities of homosexuals and that of heterosexuals. Fondling of the primary sexual organs in licensed premises on a public dance floor clearly constitutes disorder whether between heterosexuals or homosexuals under subdivision 6 of section 106 of the Alcoholic Beverage Control Law.

There remains the question of whether the disorder involved was such that the licensee knew or reasonably should have known of it. (Matter of Migliaccio v. O’Connell, 307 N. Y. 566 ; Matter of Avon Bar & Grill v. O’Connell, 301 N. Y. 150 .)

Recently we considered this issue in Matter of Kerma Rest. v. State Liq. Auth. (supra). In this case we determined that proof of a single solicitation on licensed premises was not sufficient by itself to serve as a basis for finding a violation of subdivision 6 of section 106. While this constituted disorder, there was no proof tending to show notice of the disorder on the part of the licensee under Matter of Stanwood United v. O’Connell ( 283 App. Div. 79 , affd. 306 N. Y. 749 ).

The police officer’s testimony, in this case, however, would support a finding that the licensee had actual knowledge of the disorder. He stated with respect to the bartender: ‘ ‘ All the time that I was in there he was behind the bar, but there were times that he was not serving drinks and no one was ordering drinks, and he was just standing behind the bar.”

The sexual fondling observed by the officer from the bar could as well have been observed by the bartender from the bar if he had glanced at the dance floor while the men were dancing slow dances together. Failure to do so is failure to exercise reasonable supervision. Whether the bartender did look and thus saw or failed to look and did not see, in any event the circumstances were such that the licensee could be found to have suffered or permitted the disorderly behavior. (Matter of Migliaccio v. O’Connell, supra.)

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The Appellate Division provision for the elimination of the $1,000 bond claim constituted-an exercise of discretion which should not be disturbed in the absence of abuse.

The order appealed from should be affirmed, without costs.

Chief Judge Fuld and Judges Van Voorhis, Burke, Scileppi, Bergan and Breitel concur.

Order affirmed.

Cases cited

Stork Restaurant, Inc. v. Boland 282 N. Y. 256 N.Y. 1940-03-05 p. 289
Wisser Oil Co. v. Ganfrank Holding Corp. 163 Misc. 357 N.Y. Sup. Ct. 1937-06-01 p. 290
In re Farley 217 N. Y. 105 N.Y. 1916-01-25 p. 290
Stanwood United, Inc. v. O'Connell 306 N. Y. 749 N.Y. 1954-01-22 p. 290, p. 292
Flo Inn, Inc. v. O'Connell 305 N. Y. 602 N.Y. 1953-03-06 p. 290
Coney-O-Tavern, Inc. v. New York State Liquor Authority 25 A D 2d 549 N.Y. App. Div. 1966-02-21 p. 290
Migliaccio v. O'Connell 307 N. Y. 566 N.Y. 1954-11-18 p. 290, p. 292
Konopka, v. Bruckman 290 N. Y. 777 N.Y. 1943-05-27 p. 290
Mihale v. O'Connell 303 N. Y. 874 N.Y. 1952-03-13 p. 290
Avon Bar & Grill, Inc. v. O'Connell 301 N. Y. 150 N.Y. 1950-07-11 p. 290, p. 292
Stolz v. Board of Regents of the University 4 A D 2d 361 N.Y. App. Div. 1957-07-24 p. 290, p. 291
Shonfeld v. Shonfeld 260 N. Y. 477 N.Y. 1933-01-10 p. 290
Katz's Delicatessen, Inc. v. O'Connell 302 N. Y. 286 N.Y. 1951-03-08 p. 290
Humphrey v. State Insurance Fund 298 N. Y. 327 N.Y. 1949-01-13 p. 290
Miller v. Kling 291 N. Y. 65 N.Y. 1943-07-20 p. 290
Claim of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works 304 N. Y. 65 N.Y. 1952-04-17 p. 290
Gilmer v. Hostetter 20 A D 2d 586 N.Y. App. Div. 1963-12-19 p. 290
National Labor Relations Board v. Nevada Consolidated Copper Corp. 316 U. S. 105 SCOTUS 1942-04-27 p. 290
National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc. 303 U. S. 261 SCOTUS 1938-02-28 p. 291
Lynch's Builders Restaurant, Inc. v. O'Connell 303 N. Y. 408 N.Y. 1952-01-24 p. 291
People v. Carter 14 A D 2d 492 N.Y. App. Div. 1961-06-30 p. 291
Trowbridge v. Katzen 14 A D 2d 608 N.Y. App. Div. 1961-08-01 p. 291
Mitthauer v. Patterson 8 N Y 2d 37 N.Y. 1960-05-19 p. 291
McGinnis' Broadway Rest., Inc. v. Rohan 6 A D 2d 115 N.Y. App. Div. 1958-07-01 p. 291
McGinnis' Broadway Rest., Inc. v. Rohan 6 N Y 2d 770 N.Y. 1959-04-17 p. 291
Kerma Restaurant Corp. v. State Liquor Authority 21 N Y 2d 111 N.Y. 1967-12-07 p. 292

Statutes and regulations cited

Alcoholic Beverage Control Law p. 290, p. 291, p. 292