Jay-Jay Cabaret, Inc. v. State
| Decision Date | 04 April 1994 |
| Docket Number | JAY-JAY |
| Citation | 629 N.Y.S.2d 937,164 Misc.2d 673 |
| Parties | CABARET, INC., Plaintiff, v. STATE of New York, Thomas A. Duffy, Jr. as Chairman of New York State Liquor Authority and The New York State Liquor Authority, Defendants. .A.S. Part 55 |
| Court | New York Supreme Court |
Zane & Rudofsky, New York City (Edward S. Rudofsky and Arlene H. Schechter, of counsel), Mehler & Buscemi, New York City (Martin H. Mehler, of counsel), Charles F. Axelrod, New York City, for plaintiff.
Adrian C. Hunte and Scott Weiner, New York City, for defendants.
Plaintiff, Jay-Jay Cabaret, Inc., moves for an order, pursuant to CPLR 3025(b), granting leave to amend its complaint. Defendants, the State of New York, Thomas A Duffy, Jr. as Chairman of the New York State Liquor Authority and the New York State Liquor Authority (referred to collectively as the "SLA"), seek denial of the motion-in-chief and cross-move for an order, pursuant to CPLR 3212, granting summary judgment; or, in the alternative, pursuant to CPLR 3101, granting a protective order against pre-trial discovery sought by plaintiff.
This is an action by plaintiff, the operator of a cabaret known as "Flashdancers" (the "club") located at 1674 Broadway, New York, New York, for a declaratory judgment as to the validity of the SLA's rules governing "table dancing", its Six-Foot Rule 1 and whether female dancers whose upper torsos are covered by a "liquid applied latex bra" 2, violates SLA Rule 36.1(s).
In its original complaint, plaintiff sought a declaratory judgment declaring Alcoholic Beverage Control ("ABC") Law § 106 subd. 6 3 unconstitutional on its face and/or as applied to plaintiff; declaring SLA Rule 36.1 unconstitutional on its face and/or as applied to plaintiff; in the alternative, declaring that "table dancing" does not constitute a "disorderly" condition on the licensed premises for purposes of ABC Law § 106 subd. [6]; and that "liquid latex bras," as used at plaintiff's premises, does not violate SLA Rule 36.1(s); and permanently enjoining defendants from enforcing ABC Law § 106 subd. [6] and/or SLA Rule 36.1(s); or, in the alternative, from enforcing said statute and rule on the basis of "table dancing" by performers wearing "liquid applied latex bras" within six feet of patrons. In its proposed amended and supplemental complaint, plaintiff repeats and reiterates the allegations of the original complaint, but seeks to add two additional theories of recovery based upon the same facts: that Rule 36.1(s) was promulgated by the SLA without power or in excess of its authorized powers; and that Rule 36.1(s) violates Article 3, § 1 of the New York Constitution and the separation of powers doctrine.
CPLR 3025(b) provides that leave to amend pleadings shall be freely granted absent a showing of prejudice (Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146). The merits of a proposed amendment will not be examined on the motion for leave to amend--unless the insufficiency or lack of merit is clear and free from doubt (Norman v. Ferrara, 107 A.D.2d 739, 484 N.Y.S.2d 600). Only where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit should leave to amend be denied (Ibid; East Asiatic Co. v. Corash, 34 A.D.2d 432, 312 N.Y.S.2d 311).
In the case at bar, defendants have failed to demonstrate that the proposed amended and supplemental complaint is palpably insufficient as a matter of law or is totally devoid of merit. Nor have they demonstrated any prejudice to them arising from the proposed amendment. The amended and supplemental complaint merely sets forth additional theories of recovery based upon the same set of facts as originally pleaded (Trusthouse Forte [Garden City] Mgmt., Inc. v. Garden City Hotel, Inc., 106 A.D.2d 271, 272, 483 N.Y.S.2d 216). Accordingly, the motion-in-chief seeking leave to serve an amended and supplemental complaint is granted. The amended and supplemental complaint in the proposed form annexed to the moving papers shall be deemed served nunc pro tunc upon service of a copy of this order with notice of entry.
The Court will next address the merits of defendants' cross-motion for summary judgment.
The purpose of an action for a declaratory judgment is to serve some practical purpose, and in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations (James v. Alderton Dock Yards, 256 N.Y. 298, 305, 176 N.E. 401). An action for a declaratory judgment is not subject to dismissal merely because the plaintiff is not entitled to the declaration which it seeks (Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, app. dismd. 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. den. 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164). In such a case, rather than dismiss the complaint, the Court should make an appropriate declaration of the rights and obligations of the parties with respect to the subject matter of the litigation (Sweeney v. Cannon, 30 N.Y.2d 633, 331 N.Y.S.2d 444, 282 N.E.2d 332). Accordingly, to the extent that defendants seek dismissal of the complaint, the cross-motion is denied.
"Topless" dancing is a constitutionally protected form of expression (Doran v. Salem Inn, 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648) and is not per se lewd or indecent. (Matter of Beal Properties v. N.Y.S. Liquor Authority, 37 N.Y.2d 861, 862, 378 N.Y.S.2d 43, 340 N.E.2d 476). New York courts have ruled, as a matter of New York State constitutional law, that neither the Legislature nor the SLA may "categorically" ban "topless" dancing in the absence of evidence that such a ban is "sufficiently functionally related to the exercise of the State's police power" so as to overcome the State constitutional guarantee of freedom of expression. (Bellanca v. N.Y.S. Liquor Authority, 54 N.Y.2d 228, 236, 445 N.Y.S.2d 87, 429 N.E.2d 765 ["Bellanca II "]; 92-07 Restaurant, Inc. v. N.Y.S. Liquor Authority, 80 A.D.2d 603, 435 N.Y.S.2d 989). In the case at bar, defendants have failed to meet the "functional relationship" test.
The Court of Appeals explained its decision in Beal Properties in the later case of Bellanca II as follows:
In Matter of Beal Props. v. State Liq. Auth. (37 NY2d 861, 862 [378 N.Y.S.2d 43, 340 N.E.2d 476] ) we held that the State Liquor Authority did not have authority to impose a sanction against nude dancing "absent a regulation by the agency giving notice that conduct not lewd or indecent per se was proscribed." That decision may not properly be read as implying that just any regulation, regardless of its constitutional validity, would serve to confer such authority. What the agency adopted following our decision in that case was the presently unchallenged 6-foot 18-inch regulation referred to (supra 54 N.Y.2d at p. 232, 445 N.Y.S.2d 87, 429 N.E.2d 765).
We do not now undertake to define the standard to be applied under our State Constitution to determine whether a particular regulation of speech or conduct in connection with the sale or consumption of alcoholic beverages violates the guarantee of freedom of expression declared in section 8 of article I. It would seem that the test would be higher than that of mere rational relationship, the standard required for the justification of any exercise of the police power quite independent of the provision of section 8 of article I. Presumably, too, the standard would be significantly different depending on the nature of the speech or conduct to be regulated, e.g., as between topless dancing, on the one hand, and political activity, on the other, assuming indeed that the latter would be subject to any such regulation. (Bellanca II, 54 N.Y.2d at 236 n. 8, 445 N.Y.S.2d 87, 429 N.E.2d 765 [emphasis added].
In the most recent seminal administrative law case on the subject (decided after the commencement of this action), (Beer Garden v. State Liquor Authority, 79 N.Y.2d 266, 582 N.Y.S.2d 65, 590 N.E.2d 1193), the Court of Appeals struck down SLA rule 36.1(q) on the ground that the SLA acted without statutory authority in promulgating said rule and because it was a "no-fault" rule (i.e., that a violation could be established even absent proof of the licensee's awareness of the alleged "disorderly" conduct in or about the license premises). As the Court of Appeals held in Beer Garden case:
Before a court can determine whether an agency acted reasonably in taking a particular action it must find that the agency had authority to act in the first instance (Mancini v. McLaughlin, 54 NY2d 860, 862 [444 N.Y.S.2d 901, 429 N.E.2d 408]. Under the Alcoholic Beverage Control Law, the Legislature has granted the SLA specific and particular, rather than general, rule making authority: the power to make rules with respect to particular subject is specifically granted to the SLA throughout the body of the Alcoholic Beverage Control Law * * * We agree with petitioners that the SLA cannot take refuge in general rule-making authority as a means of circumventing the specific legislative requirement in Alcoholic Beverage Control Law § 106(6) of the licensee's awareness of the disorderly conduct. (79 N.Y.2d at 275, 582 N.Y.S.2d 65, 590 N.E.2d 1193 [emphasis added] [citations omitted].
Similarly, in the case at bar, plaintiff argues that there is no "specific particular" statutory basis for Rule 36.1(s). Plaintiff has gone to exquisite lengths to trace the history of the rule. Plaintiff asserts that "[t]he New York State Legislature has never authorized the SLA to promulgate a categorical, "no fault" proximity rule (in effect "banning" topless dancing within 6 feet of patrons regardless how "orderly" the licensed premises may otherwise be"). Nor has the SLA ever asserted that Rule 36.1(s) was based upon any statutory authority other than "ABC Law §§ 2, 17, 114 and 118". (Rudofsky Reply Affirmation p 22).
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