18 A.D.2d 339 | N.Y. App. Div. | 1963
Lead Opinion
The Administrative Code of the City of New York makes it unlawful to operate a cabaret except in premises licensed for the purpose (§ B32-297.0). Respondent, proposing to open a cabaret at 5 East 59th Street in the Borough of Manhattan, applied to the Commissioner of Licenses of the City of New York for a license. After taking testimony upon such application, as authorized in the Commissioner’s discretion by section 773a-7.0 of the code, the Deputy Commissioner submitted an adverse report, and the Commissioner, agreeing with it, denied the application. Special Term has granted an order under article 78 of the Civil Practice Act setting aside and annulling the Commissioner’s determination and directing the issuance of a license; and from this order the Commissioner appeals.
Respondent, a New York stock corporation, is a wholly owned subsidiary of Playboy Clubs International, Inc. (International). Hugh M. Hefner and HMH Publishing Co., Inc. (HMH) together own 50%, and Victor A. Lownes III 25%, of International’s stock. Approximately 80% of the stock of HMH, which is the publisher of the magazine Playboy, is owned by Hefner. Hefner and Lownes are respectively the president of International and the president of respondent. Both testified before the Hearing Commissioner. The remaining witness was a Mrs. Kerster, supervisor of respondent’s female personnel.
Respondent’s establishment was planned as one of a chain of cabarets, called Playboy Clubs, operated in substantially the same fashion in a number of large cities and directly or indirectly owned by International or franchised by it. The clubs, as represented by respondent, "feature the sale of alcoholic beverages and food and the furnishing of entertainment in a distinctive atmosphere." Admission to the clubs is obtained by purchase of a Playboy key for the sum of $25 or payment of an equivalent charge. One of the attractions of the clubs is that the price of a meal is the same as a drink, $1.50, although in respondent’s club a room has also been set aside for the service of a more
The essential basis of the Commissioner’s adverse determination was apprehension that the waitresses in respondent’s club would mingle with the patrons in violation of the following regulation of the Department of Licenses: “ Rule 6(i). Mingling. Female entertainers and female employees of a cabaret shall not be permitted to mingle with patrons or guests. ’ ’ Power to adopt the regulation is not questioned (see Administrative Code, § B32-305.0), nor is its wisdom assailed. It has the force and effect of statute and we are required to take judicial notice of it (Administrative Code, § 982.8.0; Matter of Bethlehem Steel Co. v. Joseph, 284 App. Div. 5, 8).
Respondent stresses that the Commissioner’s regulations govern licensees, not applicants. As I understand respondent’s argument, the Commissioner may not invoke the regulations to anticipate infractions which may never eventuate (Matter of Beck v. Wallander, 189 Misc. 509). Logically, the reasoning runs, the restraining regulations may therefore be applied only to licensees, since valid and trustworthy findings of violations can be based only upon actual experience in the operation of a cabaret.
Under the applicable statutes the Commissioner must be satisfied, among other things, that the applicant is a “ fit and proper person ”, and that the premises are a “ safe and proper place ” to be used as a cabaret (Administrative Code, § B32-297.0, subd. d). It seems to us clear that in considering an application
Nor, in the present case, do we deem of moment the Commissioner’s failure to specify whether he was applying the “ fit and proper person "standard or the “ safe and proper place ” standard or both. If an applicant intends to permit mingling, he cannot be a proper person, for he intends to encourage illegality. If his intentions are otherwise (and disregarding the point that objective facts may belie professed intentions), the Commissioner may still reasonably find that a proposed method of cabaret operation carries with it an undue risk of mingling. In such event, he indulges in no unwarranted interpretative stretch, if any, should he conclude the premises are not a safe and proper place, The purpose of the legislation is undermined if the place is to be judged without a sensible regard to its activities. In Matter of Agoglia v. Mulrooney (259 N. Y. 462), one of the circumstances influencing denial of a cabaret license was the propinquity of the premises to a school. We question that the case would have been decided differently had the school been distant but the premises already provided an amusement haven for children. Again, we do not agree that in exercising his discretion the Commissioner invoked neither of the two standards, but rather an unauthorized and nebulous one of “ public interest ”. His statement that"this innovation would not be in the public interest" plainly related to his conclusion about the prospective breach of his regulations; he was in effect making the funda
Whether the finding of prospective breach is sustained by the weight of the evidence is of course beyond our province to determine (Matter of Doherty v. McElligott, 258 App. Div. 257, 259). Our inquiry into the Commissioner’s exercise of discretion "is limited to a determination whether the record discloses circumstances which leave no possible scope for the reasonable exercise of that discretion ” (Matter of Wager v. State Liq. Auth., 4 N Y 2d 465, 468). Accordingly, we must consider whether the Commissioner’s action, following a hearing he granted in his discretion, was based "upon a ground which is not supported by any evidence ” (Matter of Small v. Moss, 277 N. Y. 501, 507).
That respondent solicited patronage in New York is not disputed. Placed in evidence were copies of three 1962 issues of a leaflet entitled “ Playboy Club News ”, which contain information concerning the clubs and invite purchase of club keys. The Summer issue was distributed to New Yorkers generally, the later issues to New Yorkers who had purchased keys; all three referred to the planned opening of respondent’s club. A photograph in the November issue shows three Bunnies engaged in dance with three men, evidently patrons, since the caption reads: "Swinging twist parties are also available; a topsy-turvy time for all.” Another photograph showing a man with his arms around two Bunnies bears the caption: "Club private parties are fancy-free fun as evidenced above.” The issue also includes two other photographs, each of which shows a patron in like physical contact with a Bunny. The December issue, which suggests a key as a Christmas gift, includes a photograph — between the headline: "Give your holiday party at the club" and the caption: "An end-of-the-year Playboy Club private party is always the living end"—which again shows three Bunnies and three males dancing. Pertinent to consideration of these photographs, which obviously depict mingling, is the following interrogation of Lownes: "Q. When photographs are taken, may a bunny pose in the photograph with the guest? A. Yes, she can have her picture taken with the guest but she is not permitted to have the guest touch her during the picture-taking."
That mingling is permitted in the clubs in other States does not necessarily mean that respondent intended to permit it in New York (cf. Matter of Beck v. Wallander, 189 Misc. 509, supra). But here we think the Commissioner could reasonably infer that the Playboy Club News induced and was designed to induce its recipients to believe that mingling would be permitted
the clubs are essentially operating in the same manner.” Moreover, all three issues of the Playboy Club News indicated that the clubs were available for private parties, where patently the possibility of mingling is less remote, and Lownes confirmed that such parties could be arranged to be held at respondent’s premises with Bunnies present as waitresses, entertainers and camera girls. We are unable to say it would be arbitrary for a licensing officer to conclude that mingling was to be allowed intentionally in respondent’s premises or in any event that there was undue risk of its occurrence.
Again, of course, it does not follow that this evidence establishes, or in order to sustain the Commissioner’s determination need establish, with impregnable certainty that respondent actually intended to permit mingling in the New York club. Perhaps the alluring representations about mingling of patrons and Bunnies were false. If so, then respondent is truly pinioned on the horns of a dilemma. If it did not intend to perform the enticing promises of mingling held forth in advertising material and articles, such deception would supply devastating proof of respondent’s lack of fitness to secure a cabaret license.
Nor are we able to say, notwithstanding the absence of any issue of lewdness or obscenity, that in pondering the foregoing evidence the Commissioner, head of a department familiar with the bibulously gay night club milieu, was required to bar from consideration the elements of costume and decor above mentioned ; and that it was irrelevant for him to note that the waitresses, wore, instead of the conventional dress of their occupation, the skirtless and decollete attire described by Mrs. Kerster. Significant was the endeavor of respondent’s counsel, not wholly successful, to show through Hefner that on the opening night of respondent’s club (which commenced business as a restaurant only during the period of the hearing) the number of male diners unaccompanied by women was small. “ Q. Would you say that over 95% of the people who came to the Club on Saturday night were couples? A. There were a great many couples. Q. Have you any kind of figure for the benefit of the Commissioner? A. There were a great many; well over 50% were couples.”
Respondent brought out at the hearing that the clubs in other cities had received no complaints about misconduct on their premises. But if mingling took place there, as the Playboy Club News indicates, the absence of complaints tends to prove at
It is evident that the Commissioner regarded the Bunny Manual with skepticism, as something less than a finishing school code for young ladies. His deputy’s report referred particularly to a section entitled: “That ‘Extra’ Service”, which gives suggestions for promoting a greater consumption of liquor and states that “ The key to selling more drinks is Customer Contact ” and that “ our keyholders expect ‘ the personal touch ’ in their every dealing with Club personnel ”. That this section, standing alone, was designedly equivocal seems to us an unreasonable conclusion. Yet on the entire record we cannot say that such an inference would lack rational support. The manual explains to the waitress that every detail of the club is designed ‘ ‘ to suggest the warmth, the intimacy and the fun of a private cocktail party ”, and she is instructed to stop to chat with a key-holder and his party if time and trade permit. The manual informs her that patrons will treat her with more deference and respect than is generally accorded a waitress, “ For you are far more than a waitress. You are very much involved in an activity that comes closer to being ‘ show business ’ than anything else.” It tells her about the Playboy Magazine, which, it explains, is aimed “ at the young urban man who appreciates the pleasures of an apartment, the sound of hi-fi, the taste of a dry martini ’ ’, and it states that “we depend on our Bunnies to express the personality of the magazine in a most positive way.”
The issue of that magazine in evidence, which advertised the opening of the New York club, contains stories, articles, service features, reviews and other prose pieces, a number by well-known writers; it also includes a page of “ party jokes ” (e.g., “ The
As Hefner correctly wrote in the magazine, nudity and obscenity are not synonymous. But the issue here relates to mingling, not obscenity, The question for the Commissioner was whether young waitresses, relying on tips for the bulk of their earnings, would understand or were really expected to understand that mingling was forbidden. The answer, either way, might be of some assistance to him in exercising his discretion, and we cannot say that his negative answer lacks any reasonable basis. Pertinent here, too, is the interrogation of Lownes above quoted.
“ That an unsupervised cabaret offers a tempting field for abuses and crimes is almost axiomatic” (Matter of Friedman v. Valentine, 177 Misc. 437, 439, affd. 266 App. Div. 561), Supervision is entrusted to a licensing officer by code provisions so stringent as to require or authorize the taking of fingerprints of applicants and their employees (§§ B32-297.0, B32-3Q4.0). Within the range of the powers granted and the standards set for him, he has latitude for the exercise of discretion, subject to the limitation that he may not act arbitrarily or out of caprice. His is the task of measuring probabilities and risks; and while cabaret operation may not be one of the great regulatory areas it would be reckless indeed to assert that it affords no room for the acquisition and play of administrative expertise and embraces no features obscure to judicial sight. As the Court of Appeals has admonished more than once: “ In the government of the affairs of a great municipality many powers must necessarily be confided to the discretion of its administrative officers, and it can be productive only of mischief in the treatment of such questions to substitute the discretion of strangers to the power in place of that of the officers best acquainted with the necessities of the case and to whom the Legislature has specially confided their exercise ” (People ex rel. Schwab v. Grant, 126 N. Y. 473, 482; Matter of Barton Trucking Corp. v. O’Connell, 7 N Y 2d 299, 314, supra). We cannot discover caprice or arbitrariness in appellant’s determination.
A secondary reason for denial of the application appears to have been false advertising concerning admission to respond
The order appealed from should be reversed, on the law, and the appellant’s determination reinstated, with costs.
Dissenting Opinion
Petitioner, the operator of a restaurant and club at premises 5-7 East 59th Street, Borough of Manhattan, sought a cabaret license for the premises. The application was denied and petitioner-respondent (herein petitioner) instituted an article 78 proceeding which resulted in an order annulling the determination. The majority are now reversing the order appealed from and reinstating the determination of respondent-appellant, Commissioner (herein appellant).
The majority say the essential basis for denial of the license is the appellant’s apprehension that there would be mingling of waitresses (called Bunnies) and entertainment personnel with the customers. They hold that appellant may properly consider the possibility of such infraction of regulations, and the resulting apprehension on appellant’s part constituted a reasonable basis for denial of the application for a cabaret license.
After the application for a license was filed, a hearing was held. At the conclusion of the hearing the Deputy Commissioner before whom the hearing was held made a report to appellant in which he referred to the contents of various issues of "The Playboy Club News ” (a publication of Playboy Clubs International, a corporation separate from applicant though some personnel are common to both), the proposed costume of the waitresses, or Bunnies, the possibility of mingling, and concluded ‘ * it would not be in the public interest to grant a license. ’ ’ He recommended to appellant that the license be denied.
Appellant in his determination, which is the basis of this proceeding, refers to the policy against mingling, asserts that peti
Before examination of the grounds upon which the refusal was based, it is well to look to the source of appellant’s power. The appellant has jurisdiction to issue licenses for cabarets (Administrative Code of City of New York, § B32-296.0 et seq.). Certain conditions precedent must be met before the license is issued. “ A license shall be issued only after the commissioner (1) is satisfied that the applicant is a fit and proper person, (2) shall have caused an inspection to be made of the premises to be licensed and is satisfied that such premises comply with all laws and rules and regulations of the department of buildings, the fire department, the health department, and the department of water supply, gas and electricity, insofar as the same are applicable thereto, and (3) is satisfied that the premises to be licensed are a safe and proper place to be used as a public dance hall, cabaret or catering establishment. For the purpose of facilitating the inspections prescribed by this section, the commissioner is authorized to call upon the head of any city agency and such agency and its employees shall make such inspections as may be required.” (Administrative Code, § B32-297.0, subd. d.)
No question is raised under paragraph (2) of subdivision d of section B32-297.0, so no further discussion need be devoted to it.
Under the section and subdivision quoted two items remain for resolution by the appellant prior to the issuance of a license. The appellant must be satisfied the petitioner is a fit and proper person, and the premises must be a safe and proper place for a cabaret.
The issue thus presented on this appeal is a narrow one. In the absence of a determination that petitioner is not a fit and proper person, or that the premises are not safe and proper for the use intended, does a denial of the application, for the reasons stated, on the expressed ground that to grant same would not be in the public interest, constitute a reasonable basis for refusal within the meaning of the law.
‘ ‘ Mingling ’ ’, to which appellant referred, may be construed to mean fraternizing with the customers or patrons. It is forbidden by the Rules and Regulations of the State Liquor Authority, and may constitute grounds for revocation of the license. Petitioner has a liquor license which, from the record, has neither been revoked, nor proceedings taken toward that end. It is persuasive, therefore, that mingling between patrons
The appeal of the “ scantily-clad waitresses ” to the patron doubtless does exist. Every place of entertainment, and even some without, which employs females may have levelled against it the charge of feminine appeal as an added inducement to patronize the establishment. The garb, or lack of it, is an undeniable factor. It is reasonable to suppose, and one might say it is common knowledge, that at least a part of any cabaret’s attraction lies in the costume of its chorus line or entertainers, including the somewhat abbreviated costumes occasionally worn.
The difference in the ease before us, however, is that these costumes remind the observer of or seek to identify the wearer with an animal, especially one noted for reproductive prolificness, to wit, a bunny. One might even view this as an affront to the human personality, and for that reason objectionable. Whatever one’s views are on the matter, a personal antipathy is not a sound basis upon which to rest an administrative determination. Petitioner can claim no right to preferential treatment, but it is entitled to have its application evaluated on such objective criteria as are applied to other applications of a similar nature.
Possibly the hearing produced information which would refute any contention of unequal treatment, and upon which the relevant and necessary factual findings could properly have been made. This, however, was not done. The determination was premised upon the nebulous phrase “ the public interest ” with appellant as the sole arbiter of the meaning of the language. When a determination is so based it should be related to the customs, usages, mores, laws and moral tone of the times. Before conclusive action is taken assertedly in the public interest, specific and concrete findings with respect to the aforementioned factors should be made. This is especially important in matters of this nature, where the scope of judicial review is so limited. A more precise and readily definable standard, based upon findings which permit of objective review, is desirable. Unless that is done we may find that a subjective determination of evidentiary matter has been confused with an objective finding in order to reach a predetermined result.
The record discloses that in places where Playboy Clubs are in operation they have operated within the laws of the respective
The club and restaurants, sans cabaret entertainment, are presently in operation, presumably with Bunnies as waitresses, and apparently without disorder. This might be illustrative of the fact that what to one observer may be sensually provocative (i.e., the bunny costume), may be to another an attempted juvenescent compensation. Of course the converse is true. Much depends upon the mind of the beholder and the setting in which the revelation occurs.
Any rule or regulation of appellant adopted in accordance with the powers conferred (Administrative Code, § B32-305.0) has the force and effect of law. Appellant is given the power to revoke or suspend a license ‘ ‘ for any violation of law, or upon the ground that disorderly, obscene or immoral conduct is permitted on the licensed premises, or for other good cause” (Administrative Code, § B32-306.0). Such language imports a condition that the premises be in operation prior to application of the rule and the finding of violation.
Appellant may refuse to issue a license, but such refusal must be in accord with the law as declared or reasonably implied. Appellant should not create or establish a new standard independent of those enumerated. In the absence of a finding that petitioner is not a fit or proper person, or that the premises are not a safe and proper place, to conclude that petitioner’s conduct would be violative of law is to prejudge the matter without a reasonable basis therefor.
The use of the words ‘ ‘ fit and proper ’ ’ and ‘ ‘ safe and proper ” is intended, legislatively, to establish standards, the application of which must depend upon precedent factual findings, not upon eventualities. The record is inadequate to support the determination made because of the absence of such factual findings. Such deficiency does not permit effective judicial review.
It is not the court’s function to make findings for the appellant even if it could do so, and since appellant’s action may be overturned only if it is arbitrary, the matter should be remanded to him for reconsideration and the making of appropriate findings if in his opinion the present state of the record so permits, or he may deem it advisable to hold further hearings. It is no solution to the problem to substitute our judgment for the supposed
I therefore dissent and vote to reverse and remand.
McNally and Eager, JJ,, concur with Botein, P. J.; Stevens, J., dissents and votes to reverse and remand in opinion, in which Breitel, J., concurs.
Order entered on or about January 18, 1963 reversed, on the law, with $20 costs and disbursements to the respondent-appellant, and the determination of the respondent-appellant, Commissioner of Licenses of the City of New York, reinstated.