Opinion
Argued November 21, 1966
Decided December 30, 1966
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Anthony F. Correri for appellant.
Milton Koerner and Hyman Amsel for respondent.
MEMORANDUM. The charge that the petitioner suffered or permitted the premises to become disorderly (charge number 1) is not sustained by substantial evidence. There is no proof that the prostitute who testified in the proceeding solicited men or committed any act in the premises by which they tended to be disorderly. There is proof that one employee of the petitioner called the witness to meet some persons there and that she did not appear; and there is proof of by her that another employee called her to appear for the purpose of "committing an act of sex"; but there is no proof of any fact showing an act of prostitution or otherwise either resulting from any meeting in the premises or outside of it. Thus substantial evidence of permitting or suffering the premises to become disorderly within subdivision 6 of section 106 of the Alcoholic Beverage Control Law is not shown. Charge number 2, that an officer of the petitioner "knowingly" allowed "a prostitute to use the * * * premises for furthering prostitution", has no factual support in the record. There is no proof that this officer knew the witness to be a prostitute. Although the prostitute testified she had a single act of intercourse with this officer off the premises she said she did not tell him she was a prostitute or take or ask any money from him and the finding that his knowledge of her use of the premises had a relation to potential disorder therein is without substantial support. Charge number 4, involving changes in corporate officers without notice to the Authority, is factually sustained, but the penalty appropriate to this charge should be re-examined.
Order modified by reversing so much thereof as sustains charges 1 and 2, as found by the respondent against petitioner; and by remitting the proceeding to the respondent to determine the appropriate penalty on charge 4, the confirmation of which by the Appellate Division is affirmed.
Judges FULD, VAN VOORHIS, SCILEPPI and BERGAN concur in Memorandum; Chief Judge DESMOND and Judges BURKE and KEATING dissent from so much of the decision as directs a dismissal of charge 1.
Order modified and matter remitted to respondent for further proceedings in accordance with the opinion herein and, as so modified, affirmed, without costs.