Opinion
May 18, 1967
Determination of the New York State Liquor Authority, canceling petitioner's restaurant licence for premises 316 East 54th Street, confirmed, without costs or disbursements. Petitioner employed waitresses who, in a state of disattire, served patrons, thereby creating conditions which tended and suffered the licensed premises to become disorderly, within the meaning of subdivision 6 of section 106 Alco. Bev. Cont. of the Alcoholic Beverage Control Law. (Cf. Matter of Playboy Club of N.Y. v. O'Connell, 18 A.D.2d 339, affd. 14 N.Y.2d 503.) Petitioner's reliance on the constitutional privilege of free expression (U.S. Const., First Amendment; N.Y. Const., art. I, § 8) is without substance. Involved here is a bald attempt to profit on indecent exposure and drink. At the times of the occurrences herein there was no statute or regulation relative to the attire of employees of a licensee. (See, however, Administrative Code of City of New York, § 435.18.1; Local Laws, 1967, No. 23 of the City of New York, approved by the Mayor April 6, 1967.) This is a case of first impression in this jurisdiction. It would seem to us to be appropriate, in the circumstances, for the Authority to consider the feasibility of suspending the execution of the order of revocation so long as the petitioner discontinues the conduct on which the charges are based.
I concur to the extent that I would confirm the action of the State Liquor Authority, and otherwise dissent. I deem it axiomatic that women, stripped to the buff, bearing trays of alcoholic beverages, are apt to incite disorder. And I mean "disorder" well within any accepted definition of the word. (Cf. Webster's New International Dictionary 2d ed., 1940); Black's Law Dictionary (4th ed., p. 556). The proprietors of this establishment were aware of the risks they assumed when they adopted and defiantly continued the condemned practice. As the majority said: "Involved herein is a bald attempt to profit on indecent exposure and drink". As such, the owners were calculating malefactors. They played "Russian roulette" with the law — and they lost. I would therefore impose costs and disbursements. And I would not transmit any suggestion of mitigation to the State Liquor Authority. The action taken by the Authority was completely correct, and in accord with the moral sense of the community as currently reflected by chapter 367 of the Laws of 1967, wherein the practice now under consideration has been interdicted by the Legislature of the State of New York (approved by the Governor, April 18, 1967).