Opinion
Argued October 13, 1977
Decided November 17, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Martin P. Mehler and Warren B. Pesetsky for appellant.
Herbert S. Kassner for respondent.
MEMORANDUM.
Order reversed and determination of State Liquor Authority reinstated, with costs.
The hearing officer specifically found that on two occasions during the course of nude dancing by performers at the licensee's premises the licensee suffered or permitted disorderly conduct by reason of the dancer's engagement in lewd and indecent acts. In adopting the hearing officer's findings, the authority found that the performances were lewd and indecent per se and therefore in violation of section 106 of the Alcoholic Beverages Control Law (compare Matter of Beale Props. v State Liq. Auth., 37 N.Y.2d 861, with Matter of Inside Straight v State Liq. Auth., 56 A.D.2d 720, mot for lv to app den 41 N.Y.2d 806; Matter of Rubinoff v State Liq. Auth., 53 A.D.2d 943, mot for lv to app den 40 N.Y.2d 802).
An examination of the record discloses that there was substantial evidence to support the authority's findings. The temporal duration of the lewd and indecent acts and the lack of direct contact between performers and patrons were but circumstances for consideration by the fact finders in making their determination (cf. Matter of Streber v State of New York Liq. Auth., 47 A.D.2d 808, 809).
It is not necessary to reach appellant's constitutional arguments because the basis for the authority's determination and this court's reinstatement of the determination is the substantial evidence of lewd conduct suffered, conduct unprotected by constitutional limitations.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.