Jurisdictional Statement — Bell v. New York State Liquor Authority

Supreme Court, U. S

FILED

SEP 16 1978

MIGHAEL RODAK, JR., CLERK

IN THE SUPREME COURT OF

UNITED STATES

TERM

vo, 78-816

DAVID BELL APPELLANT

vs.

NEW YORK STATE LIQUOR

AUTHORITY APPELLEES

APPEAL FROM NEW YORK STATE COURT OF

APPEALS

David Bell, appellant pro se

P.O. Box 130

Monticello N.Y. 12701

Tel. 914 - 794-5300

Louis Lefkowitz, for appellees

Attorney General, State of New York

Two World Trade Center

New York N.Y.

TABLE OF CONTENTS

Jurisdictional Statement

Statement of the Case

Substantiality of

Federal Question

Conclusion

Appendix

Opinion of Court

Order of Court

Notice of Appeal

Statute in Question

page

1-3

3-5

6-10

10

Al-A2

A-3

A-B

af

INDEX OF AUTHORITIES

Cases

Gragnia ve City of Rockford

( 408 US 109)

California vs La Rue

( 409 US 109)

Cootes vs. Cincinnati

( 406 US 611)

Gregory vs Chicago

394 US 111 )

vies" WF"

Beal Prope~ties vs State Liquor Authorit

( 37 NY 24 861; 45 Ad 24 908 ) ‘

STATUTES

Section 106 subd. 6 of the New York State

Alcoholic Beverage Control Law

JURISDICTIONAL STATEMENT

1. a. On April 6, 1978, the Appellate

Division, Third Department of the Sup-

reme Court of the State of New York, dis-

missed appellant's petition appealing the

decision of the State Liquor Authority,

which revoked appellant's license to dis-

pense alcohdlic beverages, in an order of

respondent, dated January 8, 1976.

( Appendix pages 1,2. )

db. This is an appeal from an order

of the New York State Court of Appeals,

dated June 8, 1978 ( entered in the office

of the Sullivan County Clerk, June 14, 1978)

which denied his motion for leave to app-

eal the judgement of the Appellate Divis

ion, Third Department; which upheld the

order of the New York State Liquor Auth-

ority revoking appellant's to sell alcoh-

olic beverages in the restaurant he leas-

ed and operated in 1975. ( App. Pe. 3)

Page 1

The Notice of Appeal was served on resp-

ondent on June 22, 1978 and filed on that

day in the Appellate Division, Third

Department of the New York State Supreme

Court in the office of the clerk of that

court. ( Appendix page 4.)

The statutory provision believed

to confer jurisdiction on this court is

provided by Title 28, section 1257 subd.

2 of the United States Code of Judicial

Procedure; by which appellant draws into

question the validity of section 106 subd.

6 of the New York State Alcoholic Berer-

age Control Law, on the grounds of it's

being repugnant to the Constitution and

laws of United States, and the decision

of the State Court is in favor of it's

validity. ( Appendix pg. 5 )

Appellant believes that the

following cases sustain the jurisdiction:

Gragnia vs City of Rockford

( 408 U.S. 109)

Page 2

California vs La Rue

409 U.S. 109

Cootes vs Cincinnnati

406 U.S. 611

Gregory vs Chicago

394 U.S. 111

Rose vs. Locke

423 us 48

STATEMENT OF THE CASE

Appellant, David Bell, was licen-

sed by New York State Liquor Authority in

1973, 1974 and 1975 to operate a restaur-

ant dispensing alcoholic beverages. Licen-

see provided entertainment in the lounge

in the form of female entertainers who

danced with little or no clothes.

In August 1974, the authority

brought charges against appellant- licen-

see, under section 106 subd 6 of the New

York State Alcoholic Beverage Control Law.

It was alleged he suffered or permitted

the premises to become disorderly by per-

mitting alleged lewd entertainment.

Page 3

At the same time, six other lic-

ensees situated in the same county, who

featured the same kind of entertainment,

were also cited under the same statute.

In the administrative hearings held by

the Authority, subsequently, appellant

and the six other licemsees raised the

point that no local ordinance, state stat-

ute or rule or eegulation of the Auth-

ority, prohibited nude dancing or defined

disorder or lewdness. At these hearings

in 1974, appellant first raised the quest-

ion of the constitutionality of sect. 106

subd. 6 of the ABC Law. The question was

ignordd by the presiding administrative

judge.

No further action was taken by the

Authority after these hearings in 1974

and no warnings were directed to appellant

to discontinue this form of entertainment;

and his license was renewed.

Page 4

In August , 1975, new charges were

made against the appellant under the same

statute, and new hearings were held by

the Authority on these new charges, in

August and October of 1975. In January,

1976, the Authority revoked petitioner's

license and fined him $ 2,000.

In appeilant's appeal to the Appelate

Court of the aforementioned order by

Authority, the question was again raised

that sect. 106 subd. 6 of the ABC Law was

unconstitutionally vague. The appellate

court upheld the administrative order

and fine and summarily dismissed the

constitutional question ( Opinion of

court, App. Page 1,2 )

The Court of Appeals of the State

of New York denied appellant's petition

for leave to appeal. ( Appendix Page 3 )

Page 5

SUBSTANTIALITY OF FEDERAL

QUESTION

Appellant believes that the

Federal question is substantial, and bec-

ause the relevant pleadings and testimony

of the hearings are voluminous, a plenary

session of the Court with briefs on the

merits would be necessary for a full

understanding by the Court of the question

presented by this appeal. Appellant bases

this belief on the following grounds:

l- The Supreme Court, in the past,

has consistently struck down state statutes

which are vague and fails to clearly define

prohibited conduct ( of the kind which

appellees allege violated sect. 106 subd 6

of the New York State ABC Law.

"A statute is void for vagueness

if it fails to give a person of

ordinary intelligence notice that

his contemplated conduct is for-

bidden by statute".

( 423 US 48 )

page 6

The record clearly shows that

no local ordinance, state statute or rule

or regulation of the State Authority pro-

hibited the type of entertainment provided

by appellant - in 1974 and 1975- which app-

ellees alleged was prohibited by the afor-

mentioned 106-6 of the ABC law, and

constituted disorder,

"A vague law impermissibly del-

egates basis matters to police-

men, judges and juries for res-

olution on an Ad Hoc basis".

( Gragnia v City of Rockford;

408 US 109)

2- A collateral issue relevant

to the instant proceedings by the Authority

against appellant, concerns 6 other lice-

nsees situated in the same county as

appellant ( Sullivan), who also provided

the same kind of entertainment and were

prosecuted wunasr the same statute.

page 7

Of the aforementioned six,

one - namely Beal Properties- had been

previously prosecuted in 1972 under the

same statute, for providing the same enter-

tainment, and had their license suspended.

In this case, ( Beal Properties vs. State

Liquor Authority, 37 NY 2d 861, 45 AD 24

908, 1975) on appeal to the New York State

Court of Appeals. the court reversed the

order of suspension; on the grounds that

"no regulations proscribing nude entertaim-

ent had been promulgated at that time"

( in 1972 or 1975). ( see California vs.

La Rue, 409 US 109)

In response to this ruling, the

Authority set up guide lines and ex post

facto regulations proscribing this kind

of entertat&nment - late in 1975 - and

only after the prosecution of the appellant

and six other licensees in Sullivan County.

( see footnote 1)

fl- of the six other licensee

page 8

3- Af’ the administrative hearings

held by Authority in 1974 - of appellant

and six other licensees- offers of proof

of discriminatory and selective enforcement

by Authority, and made by all licensees,

was denied by presiding admin&atrative

judge. In appellant's later appeal, the

appellate court upheld the Authority ( on

the grounds that proof was lacking, while

at the same time denying appellant's

motion for appointment ofa referee to

consider the proofs offered. ( An excellent

example of the proverbial catch 22 of army

fame )

"If arbitrary and discriminatory

enforcement is to be prevented,

f-1 cont. - charged in 1974, the Authority

assessed suspensions and fines against all

six. Three of the suspension were later

reversed in the appellate court, and 3 oth-

ers were sustained by the appellate court,

including the appellant.

page 9

laws must provide explicit standards

to those who apply them."

(Cootes v. Cincinnati, 406 US 611;

Gregory v. Chicago, 394 U.S. 111;

Interstate Circuit v. Dallas, 390 U8 676)

CONCLUSION

The record is clear, that in 1974,

the rules and regulations of the Liquor

Authority lacked a clear definition of

what constituted disorderly conduct and

lacked a proscription of the entertaib-

ment provided by appellant licensee;

and which permitted the Authority to

selectively prosecute appellant and six

other licensees in Sullivan County, on

an ad hoc basis, clearly prohibited by

the constitution and laws of United States.

( California v. La Rue, supra)

The appeal should be considered

by the Court after a plenary session,

and the statute declared unconstitutionaly

vague, and null and void.

page 10

Appendix 1

Supreme court

Appellate Division

April 6, 1978 29941

In the Matter of David Bell, Petitioner

Vv.

State Liquor Autnority, Respondent.

Proceeding pursuant to CPLR article

78( transferred to this court by order

of the Supreme Court at special Tern,

entered in Sullivan County)to review the

dtermination of the State Liquor Author-

ity which (1) suspended petitioner's

liquor license for a period of 30 cays

and directed forfeiture of his bond in

the sum of $ 1,000; (2) revoxed petit-

ioner's license, together with forfeit-

ure of his bond in the sum of $ 1,000;

and (3) directed nonrenewal ofpetition-

er's license for a period of two years.

In this proceeding, petitioner

seeks review of two dterminations made

by respondent following statutory hear-

ings. The first, rendered October 16,

1975, found petitioner in vidlation of

subd. 6 of section 106 of the Alcohol-

ic Beverage Control Law when he had

pwrmitted his licensed premises to .

become disorderly on July 13 and 14 of

1974 in that he permitted lewd and

indecent performances thereon. The

second, rendered January 8, 1976,

found petitioner in violation of subd.

6 of section 106 of the ABC Lewby

permitting his licensed premises to

become disorderly on July 3 and 4th

of 1975 in that he (1) permitted

Appendix l-a

patrons and/or employees to bring upon the

licensed premises narcotics and/or dang-

erous drugs; (3) he permitted solicitat-

ion for immoral purposes on the licensed

premises; and (u} he permitted thelicens-

ed premises to be used for the purposes

of promoting prostitution thereon. Resp-

ondent further found that the conduct

of the *** ( petitioner) lea ding to his

arrest on July 4, 1975 for violations of

Sect. 120.25 of the Tenal Law of State

of New York ( Reckless Endangerment-

first degree) Section 110.00 of the

Penal Law of N.Y. ( Attempy to commit

a crime- Murder first degree); section

195.05 of the Penal Law of N.Y State

( Obstructing Governmental Administrat-

ion) and Sect. 205.30 of the Tenal Law

of N.Y.S.( Resisting Arrest) was of

suchimproper nature as to warrant revocat-

cancellation or suspension of his license

pursuant to Rule 36, Paragraph N of the

Rules of the State Liquor Authority .

The evidence adduced at the hearing

revealed that the female entertainers

danced completely naked while moving

their hips and pelvic areas. They then

laid down on the stage on their backs and

spread their legs toward various patrons

and placed their pelvic areas in close

proximity to the faces ofthe patrons. The

investigators testified that they were

able to observetheir vaginal areas surr-

eunded by pubic hair. Unlike the situat-

jon in the Matter of Beal Props v. State

Liquor Auth.( 45 A.D. 2d 906, revd. 37

NY 2d 861 ) the actiwity here found to

be indecent or lewd " per se’ by the

Authority and it is obvious that the act-

ivity engaged in was more than nude dane

ing.

Appendix l-b

Under identicsl circumstances, the Fourth

Dept. upheld the State Liquor Authority's

detrrmination that such conduct was a vio

lation of sect. 106 of the ABC Law ( Matt-

er of Inside Straight v. State Liquor Aut

hority 56 AD 2d 720), and the Court of

Appealsrefused to grant leave to appeal

( 37 NY 24 861).

In regard to the findings pertaining

to the narcotics charges, permitting the

solicitation for the purposes of prostit

ution upen the licnsed premises and the

conduct of the licensee leading to his

arrest for reckless endangerment, attem-

pting to commit murder,obstruction gover-

mental adminsitration and resisting arr-

est, these presented questions of cred-

ibility which were for the respondent to

resolve. In connection with the the crim-

inal charges, we note thatthe petitioner

was convicted on April 20, 1976 in Sull-

ivan County of the crimes of reckless en-

dangerment in the second degree, a class

A misdemeanor, in violation of. sect. 120.

20 of the Penal Law of N.Y. State, and the

charge of resisting arrest, a class A

misdemeanor, in violation of sect. 205.30

of the Penal Law of N.Y. State. these

convictions were affirmed by this court

People v Bell, Ad 2d Dec.

9 1977). re ae tr

We conclude that respondent's determin-

ations of lewdness andindecency of the

dance performances, as well as the rema-

inder of the charges are supported by

substantial evidence in the record and

Appendix lev

the dterminations of the respondent must

therefore be uphled.

Petitioner argues that his rights are

being violated in that the laws are being

selctively enforced to his detriment. This

hardly seems likely in view of the freq-

uency which these cases have reached the

courts. But in any case, petitioner has

presented no evidence of selctive enfor-

cement.

We have exambned the remainder of

petitioners contentions and find them

without merit. Under all circumstances,

we feel the penalty was appropriate.

Dterminations confirmed, and

petition dismissed without costs.

Mahoney, P.J., Greenblott, Main,

Mikoll and Herlihy, J.J. concur

Appendix 2

STATE OF NEW YORK

COURT OF APPEALS

At a session of the Court

held at the Court of Ap-

peals Hall, in the City

of Albany, on the 8th

day of June, 1978

PRESENT, Hon. Charles E. Bretel

Chief Judge, presiding

Mo. No. 467

In the matter of the application of

David Bell, Appellant,

For Judgement &c

vs.

State Liquor Authority, Respondent.

A motion for leave to appeal to the

Court of Appeals in the above cause hav-

ing heretofore been made upon the part

ofthe appellant herein and papers having

been submitted thereonand d@e deliberat-

ion having been thereupon had,it is

ORDERED, that the said motion be

and the same hereby is denied.

Joseph W. Bellacosa

Clerk of the Court

Appendix 3

Court ef Appeals

State of New York

In the matter of the Application

of David Bell, Petitioner

For Judgement, &c

vs.

State Liquor Authority, Respondent.

NOTICE OF APPEAL TO THE SUPREME COURT

OF UNITED STATES

Please take notice, that the above

named petitioner hereby appeals as of

right as ptovided in Title 25 sect. 1257

subd. 2 ef the U.S Code; to the Supreme

Court of the United States, tne deci#én

ef the New York State Court of Appeals,

entered on June 14, 1978. which denied

his metion for leave to appeal, the

decisien of the Appellate Division, Third

Dept. , which affirmed the judgement of

the State eo yee Authority, which revoxed

and suspended the license to disperse

alcehelic beverages, issued to hia.

Dated; June 22, 8

avid Bell

Petitioner, pro se

P.O. Box 130

‘ Menticelle N.Y. 12701

@:

Lewis Lefkewitz, Atternes

General, State ef New York

State wer Autherity

Clerk ef the Appellate Ceurt

Clerk ef the Court ef Appsals

A- F

Section 106 subd. 6 of the New York State

Alcoholic Beverage Control Law states:

"No person licensed to seal

alcoholic beverages shall suffer or permit

gambling on the licensed premises, or

suffer or permit such premises to become

disorderly".