Blau-Par Corp. v. New York State Liquor Authority

• Decision Date: 17 December 1984
• Docket Number: BLAU-PAR
• Citation: 482 N.Y.S.2d 841,106 A.D.2d 503
• Parties: In the Matter ofCORP., d/b/a Bubbles, Petitioner, v. The NEW YORK STATE LIQUOR AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 841

482 N.Y.S.2d 841

106 A.D.2d 503

In the Matter of BLAU-PAR CORP., d/b/a Bubbles, Petitioner, v. The NEW YORK STATE LIQUOR AUTHORITY, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 17, 1984.

Aaron Windheim, South Nyack, for petitioner.

Gloria M. Dabiri, New York City (Stephen D. Kalinsky, New York City, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, THOMPSON and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Proceeding pursuant to CPLR article 78 to review a determination of the New York State Liquor Authority, dated February 2, 1983, which suspended petitioner's liquor license for a total of 60 days, 30 days to be served forthwith and 30 days to be deferred, and ordered the forfeiture of its bond in the sum of $1,000.

Determination confirmed, without costs or disbursements, and proceeding dismissed on the merits insofar as it is to review said determination. Insofar as petitioner seeks to challenge the constitutionality of section 106 (subd. 6) of the Alcoholic Beverage Control Law and 9 NYCRR 53.1(r) on their face, the proceeding is converted into an action for a declaratory judgment and it is declared that section 106 (subd. 6) of the Alcoholic Beverage Control Law and 9 NYCRR 53.1(r) are constitutional.

Following a hearing before a State Liquor Authority hearing officer, it was determined that petitioner had suffered its licensed premises to become disorderly in violation of section 106 (subd. 6) of the Alcoholic Beverage Control Law by permitting a topless dancer to lick her nipple twice during the course of a performance, an action which was deemed to be lewd and indecent per se and thus violative of 9 NYCRR 53.1(r)(1), which was promulgated under the authority of section 106 (subd. 6) of the Alcoholic Beverage Control Law. Additionally, petitioner was found to have also violated the prohibition against nude dancing contained in 9 NCYRR 53.1(r)(2).

Petitioner contends that these determinations were not based on substantial evidence and that, in any event, the applicable statute and regulations are constitutionally infirm.

Initially, we conclude that the factual determinations made by the hearing officer and subsequently adopted by the State Liquor Authority are based upon substantial evidence and thus cannot be set aside by this court (Matter of Salem Inn v. New York State Liq. Auth., 43 N.Y.2d 713, 401 N.Y.S.2d 205, 372 N.E.2d 40). As to petitioner's constitutional arguments, we note that those arguments that are premised upon the contention that State regulation of nude, topless or lewd and indecent dancing in establishments that serve alcoholic beverages is severely circumscribed by the First Amendment to the United States Constitution are without merit. The Supreme Court has held that in light of the powers to regulate alcoholic beverages provided the States by the Twenty-First Amendment, an outright prohibition of all topless dancing in establishments that sell alcoholic beverages does not violate the First Amendment (New York State Liq. Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357). A fortiori, prohibition or regulation of nude, lewd or indecent dancing patently cannot violate the First Amendment.

As to petitioner's arguments that the prohibition against nude dancing is violative of the State Constitution, we note that although the Court of Appeals has held that an outright prohibition of nonobscene topless dancing violates the guarantee of free expression set forth in section 8 of Article I of the New York State Constitution (Bellanca v. New York State Liq. Auth., 54 N.Y.2d 228, 445 N.Y.S.2d 87, 429 N.E.2d 765, cert. den. 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300), that decision did not extend to nude dancing. Moreover, this court has specifically held that the prohibition against nude dancing set forth in 9 NYCRR 53.1(r)(2) remains valid despite the initial Court of Appeals decision in Bellanca v. New York State Liq. Auth., (50 N.Y.2d 524, 429 N.Y.S.2d 616, 407 N.E.2d 460, revd. 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357, supra, on remand 54 N.Y.2d 228, 445 N.Y.S.2d 87, 429 N.E.2d 765, supra ) which had held the outright ban on topless dancing to be violative of the First Amendment to the United States Constitution (Matter of Highway Tavern Corp. v. McLaughlin, 105...