La Trieste Restaurant & Cabaret, Inc. v. New York State Liquor Authority

Appellate Division of the Supreme Court of New York

La Trieste Restaurant & Cabaret, Inc. v. New York State Liquor Authority

228 A.D.2d 172, 644 N.Y.2d 7, 644 N.Y.S.2d 7, 1996 N.Y. App. Div. LEXIS 6295

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 4, 1996

StatusPublished

Cited by4 cases

This text of 228 A.D.2d 172 (La Trieste Restaurant & Cabaret, Inc. v. New York State Liquor Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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La Trieste Restaurant & Cabaret, Inc. v. New York State Liquor Authority, 228 A.D.2d 172, 644 N.Y.2d 7, 644 N.Y.S.2d 7, 1996 N.Y. App. Div. LEXIS 6295 (N.Y. Ct. App. 1996).

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Opinion

[173]*173Although petitioner’s premises are physically located within the Second Department, which has declared valid State Liquor Authority rule 36.1 (s) (9 NYCRR 53.1 [s]) prohibiting licensees from suffering or permitting female entertainers to expose a portion of the breast below the top of the areola, or a simulation thereof, within six feet of patrons, the "six-foot rule” (see, Matter of Vanda Hodge Pub v New York State Liq. Auth., 215 AD2d 35), this proceeding was properly commenced in this Department, which has declared the six-foot rule null and void for want of statutory authority to promulgate it (Jay-Jay Cabaret v State of New York, 215 AD2d 172, lv denied 87 NY2d 802). We adhere to that precedent, and decline to apply choice-of-law rules where the conflict is between Departments rather than States. Therefore, that part of respondent’s determination as found a violation of the six-foot rule is annulled.

However, substantial evidence supports respondent’s determination that petitioner had substantially altered the premises without its permission in violation of Alcoholic Beverage Control Law § 99-d (1), had effectuated a corporate change in its stockholders without first obtaining respondent’s permission in violation of Alcoholic Beverage Control Law § 99-d (2), had used a trade name without respondent’s permission in violation of State Liquor Authority rule 36.1 (p) (9 NYCRR 53.1 [p]), had failed to keep and maintain its books and records on the premises in violation of Alcoholic Beverage Control Law § 106 (12), and had permitted the premises to become disorderly by suffering or permitting lewd and indecent conduct thereon in violation of Alcoholic Beverage Control Law § 106 (6).

The 60-day suspension and $1,000 bond forfeiture is appropriate for these five different violations and we see no need to remand the action for reconsideration of the penalty, notwithstanding our annulment as to a sixth violation. Concur—Sullivan, J. P., Ellerin, Ross, Nardelli and Tom, JJ.

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[173]*173Although petitioner’s premises are physically located within the Second Department, which has declared valid State Liquor Authority rule 36.1 (s) (9 NYCRR 53.1 [s]) prohibiting licensees from suffering or permitting female entertainers to expose a portion of the breast below the top of the areola, or a simulation thereof, within six feet of patrons, the "six-foot rule” (see, Matter of Vanda Hodge Pub v New York State Liq. Auth., 215 AD2d 35), this proceeding was properly commenced in this Department, which has declared the six-foot rule null and void for want of statutory authority to promulgate it (Jay-Jay Cabaret v State of New York, 215 AD2d 172, lv denied 87 NY2d 802). We adhere to that precedent, and decline to apply choice-of-law rules where the conflict is between Departments rather than States. Therefore, that part of respondent’s determination as found a violation of the six-foot rule is annulled.

However, substantial evidence supports respondent’s determination that petitioner had substantially altered the premises without its permission in violation of Alcoholic Beverage Control Law § 99-d (1), had effectuated a corporate change in its stockholders without first obtaining respondent’s permission in violation of Alcoholic Beverage Control Law § 99-d (2), had used a trade name without respondent’s permission in violation of State Liquor Authority rule 36.1 (p) (9 NYCRR 53.1 [p]), had failed to keep and maintain its books and records on the premises in violation of Alcoholic Beverage Control Law § 106 (12), and had permitted the premises to become disorderly by suffering or permitting lewd and indecent conduct thereon in violation of Alcoholic Beverage Control Law § 106 (6).

The 60-day suspension and $1,000 bond forfeiture is appropriate for these five different violations and we see no need to remand the action for reconsideration of the penalty, notwithstanding our annulment as to a sixth violation. Concur—Sullivan, J. P., Ellerin, Ross, Nardelli and Tom, JJ.

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228 A.D.2d 172, 644 N.Y.2d 7, 644 N.Y.S.2d 7, 1996 N.Y. App. Div. LEXIS 6295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/la-trieste-restaurant-cabaret-inc-v-new-york-state-liquor-authority-nyappdiv-1996.

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