Opinion
October 10, 1967
Determination of respondent State Liquor Authority in the matter of petitioner's restaurant liquor license modified, on the law and on the facts, and in the exercise or discretion, to eliminate the provision for a bond claim in the sum of $1,000, and otherwise confirmed, without costs and disbursements. Substantial evidence supports the Authority's finding that the petitioner's agent, in charge of the premises, "did allow homosexuals and degenerates to be and remain on the licensed premises and conduct themselves in an indecent manner to wit, males dancing with males, males embracing males, males kissing males and so forth." The finding is supported by the testimony of a police officer that, in the course of dancing, the males were embracing and that occasionally they kissed one another on the neck and were "feeling each other's private parts and posteriors"; that the indecent conduct of the patrons of petitioner's premises continued at intervals for 30 minutes or more; and that the bartender in charge permitted the same and did not make any effort to stop the disorderly activities. The question of the credibility of the officer's testimony was for the Authority (see Matter of Avon Bar Grill v. O'Connell, 301 N.Y. 150) and under the circumstances, there was reasonable basis for the taking of action by the Authority against the petitioner (see Matter of Gilmer v. Hostetter, 20 A.D.2d 586; Matter of Ekim Broadway Restaurant v. State Liq. Auth., 18 A.D.2d 619; Matter of Loubor Restaurant v. Rohan, 10 A.D.2d 627). The "single incident" cases do not apply where, as here, the disorderly and offensive conduct is permitted to continue openly on the premises for a substantial period of time with the apparent acquiescence of the person in charge. "Whatever reasonable supervision by oneself or one's agents would discover and prevent, that, if continued, will be taken as suffered." ( People ex rel. Price v. Sheffield Farms Co., 225 N.Y. 25, 30-31; see, also, Matter of Stanwood United v. O'Connell, 283 App. Div. 79, affd. 306 N.Y. 749.) In view of the fact, however, that the petitioner has been duly licensed for over 25 years without any prior complaints of a serious nature and since there is no contention that there were previous violations of a similar type upon the premises, we conclude that the suspension of 60 days fixed by the determination of the Authority, with 30 days of the suspension being deferred, is adequate punishment. The provision for the bond claim in the sum of $1,000 as an additional penalty tends to render the punishment so excessive as to be shocking to one's sense of fairness.
I dissent and would annul the determination of the Authority. I am unable to discern any material difference between the instant case and the facts set forth in the Matter of Stanwood United v. O'Connell, ( 283 App. Div. 79, affd. 306 N.Y. 749). The pattern is the same. A single visit in the night, of fleeting duration; only one officer testifies. And he describes the pirouette and the posturings of alleged homosexuals as occasionally they capered about to the mad music of a bizarre dance known as the "Bugaloo" and the "Shing-a-ling". And it was said that persons were touched physically. Yet there is no solicitation. The proceeding in the Criminal Court was dismissed. Contrary to the sole testimony of the officer, there were five witnesses telling a different story, not incredible. From the presentation before the Authority, I cannot find that "substantial basis" which the cases exact for the action taken. The statement of this court in the Stanwood case (p. 82) is particularly pertinent: "Suffering premises to become disorderly means something more than a mere happening on one occasion. A finding that the management knowingly allowed such things to occur and to continue would have to be bottomed upon a showing either of more than a single event or the showing of a demonstrated attitude toward that happening which indicated acquiescence ( Tenement House Dept. v. McDevitt, 215 N.Y. 160, 164; Matter of Abrams v. Bruckman, 263 App. Div. 593, 594; Matter of Giovatto v. O'Connell, 278 App. Div. 371, 372). There is no such showing here." Nor can I overlook the past good record of the proprietor: more than a quarter of a century in business; without a serious blemish on his record; his investment; no similar complaints; his apparently good relations with the police, who were the immediate surveillants of his operations the long years through, without murmur. The record in my view, fails to disclose a substantial basis for the charge that the licensee suffered and permitted his premises to become disorderly because of the alleged conduct of patrons whom he could not reject. (See, Civil Rights Law, §§ 40, 41.)