
    Dennis Bellanca, Doing Business as The Main Event, et al., Respondents, v New York State Liquor Authority et al., Appellants.
    Argued April 30, 1980;
    decided June 10, 1980
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General (Peter J. Dooley and Shirley Adelson Siegel of counsel), for appellants.
    The topless dancing ban here involved is within the State’s broad power under the Twenty-first Amendment to regulate the dispensation of alcoholic beverages and is not an unconstitutional infringement of First Amendment rights of free speech. (California v La Rue, 409 US 109; Matter of Zorach v Clauson, 303 NY 161; Salem Inn v Frank, 501 F2d 18, affd sub nom. Doran v Salem Inn, 422 US 922; Salem Inn v Frank, 522 F2d 1045; Inturri v Healy, 426 F Supp 543; Matter of Beal Props. v State Liq. Auth., 37 NY2d 861; Defiance Milk Prods. Co. v Du Mond, 309 NY 537; I. F. L. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263; People v Broadie, 37 NY2d 100.)
    
      George P. Doyle for respondents.
    The Supreme Court, Erie County (Doerr, J.), was correct in declaring subdivision 6-a of section 106 of the Alcoholic Beverage Control Law unconstitutional under the First and Fourteenth Amendments to the United States Constitution and section 8 of article I of the New York State Constitution. (Salem Inn v Frank, 522 F2d 1045; California v La Rue, 409 US 109; Salem Inn v Frank, 501 F2d 18, affd sub nom. Doran v Salem Inn, 422 US 922; Lucifer’s Gate v Town of Van Buren, 83 Misc 2d 790; Erznoznik v City of Jacksonville, 422 US 205; Southeastern Promotions v Conrad, 420 US 546; Matter of TJPC Rest. Corp. v State Liq. Auth., 61 AD2d 441; Chapin v Town of Southampton, 457 F Supp 1170; Schneider v State, 308 US 147.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether a provision of the Alcoholic Beverage Control Law (§ 106, subd 6-a) is unconstitutional insofar as it prohibits topless dancing at premises licensed by the State Liquor Authority. The Supreme Court, Erie County, held this portion of the statute unconstitutional. The State has appealed directly to this court pursuant to CPLR 5601 (subd [b], par 2).

The plaintiffs are the owners of nightclubs, bars and restaurants which, for several years, have featured topless dancing. The plaintiffs also sell alcoholic beverages to their patrons for consumption on the premises, pursuant to licenses issued by the State Liquor Authority. That agency has adopted rules prohibiting nudity and "lewd or indecent conduct” on premises licensed to sell alcohol. The rules also specifically prohibit the licensee from permitting "any female” to appear with breasts "expose[d] to view” but, as originally adopted, contained an exception for topless dancing which, although not prohibited, was subject to strict regulation.

In 1977 the Legislature added nearly identical provisions to the Alcoholic Beverage Control Law (L 1977, ch 321, § 1). However, this statute (Alcoholic Beverage Control Law, § 106, subd 6-a) did not carry forward the exception permitting topless dancing. No criminal penalty is provided for violating this statute (see Alcoholic Beverage Control Law, § 130, subds 3, 5). But a violation of this law may result in a loss of the liquor license (9 NYCRR 53.1 [s]).

The plaintiffs commenced this declaratory judgment action claiming that subdivision 6-a is unconstitutional to the extent it prohibits all topless dancing at premises licensed by the State Liquor Authority. The plaintiffs stated that they had always complied with the Liquor Authority’s rules and restrictions with respect to topless dancing. In addition it was alleged that this activity is not observable from the public streets and the fact that it is featured is clearly noted on signs posted outside the plaintiffs’ premises. "Consequently”, the complaint states, "no person has been exposed to topless dancing performances at Plaintiffs’ premises except by choice.” In their first cause of action they argued that the topless dancing featured at their establishments "is not lewd or obscene within the meaning of the United States Constitution, and is a form of protected expression under the First Amendment.” In the remaining three causes of action the plaintiffs claimed that subdivision 6-a is also overbroad, violates the equal protection clause and infringes on their freedom of expression guaranteed by section 8 of article I of the State Constitution. They therefore asked the court to declare subdivision 6-a unconstitutional to the extent that it prohibits topless dancing in licensed premises and also sought an injunction barring the State from enforcing this law in the future.

In response the State contended that "notwithstanding the Constitutional provisions which guarantee freedom of expression” it may, pursuant to the Twenty-first Amendment of the United States Constitution, "regulate the type of entertainment in establishments licensed in this State to sell alcoholic beverages.”

The trial court recognized the State’s broad power to control and regulate the sale of liquor in order to protect the public from its effects (California v La Rue, 409 US 109). It found, however, that topless dancing is "a type of expression protected by the First Amendment” and that the State had failed to "show some serious and compelling reason to limit it. Bland reliance on the Twenty-first Amendment is insufficient”. Thus the court declared subdivision 6-a unconstitutional as applied to topless dancing in licensed premises, and to that extent, enjoined its enforcement.

On this appeal the State contends that this judgment is inconsistent with the United States Supreme Court’s holding in California v La Rue (supra).

In La Rue the court held facially valid certain administrative rules regulating the type of entertainment that might be presented in bars and nightclubs licensed by the State. The rules prohibited what the court described as acts of "gross sexuality” including display of the genitals and live or filmed performances of sexual acts. They noted that before the rules were promulgated, hearings were held and it was shown that at premises where these acts were performed, "numerous incidents of legitimate concern to the Department had occurred” (California v La Rue, supra, at p 111). These incidents included "bacchanalian revelries” involving public sexual acts between customers and entertainers, as well as assaults, rape and indecent exposure committed at or near such premises.

In upholding the regulations the court observed that the Twenty-first Amendment, granting the States power over the sale and distribution of liquor within their borders, has been recognized as conferring on the States something more than the normal authority inherent in the police power. Although that amendment did not nullify the other provisions of the Constitution whenever the State seeks to regulate the sale of liquor, it did serve to "strengthen” the State’s authority in that particular area. The court conceded that some of the performances prohibited by the regulations would be entitled to constitutional protection but noted that the regulations claimed to be invalid on their face, in "substance” prohibited performances "that partake more of gross sexuality than of communication” (California v La Rue, supra, at p 118). The State’s conclusion that these acts should not be permitted at places authorized to sell liquor was held not to be "an irrational one” in light of "the evidence from the hearings” (California v La Rue, supra, at pp 115, 116). "Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution” (California v La Rue, supra, at pp 118-119).

In the case now before us the plaintiffs do not claim a right to offer performances of explicit sexual acts, live or filmed, real or simulated. Nor are we concerned with nude dancing. There is no contention that the plaintiffs should have a right to present their dancers entirely unclothed, and thus they do not challenge that portion of the statute which prohibits nudity. Nor do they contest the statute insofar as it would prohibit women other than dancers from appearing bare-breasted on their premises. Similarly the plaintiffs do not contest the State’s right to place some restrictions on topless dancing performances as the Liquor Authority’s regulations have done in the past. Finally, of course, the plaintiffs do not claim that they are exempted from the obscenity laws or that topless dancing should always be allowed no matter how, or where performed. The only question before us is whether the statute is constitutional to the extent that it absolutely prohibits liquor licensees from presenting nonobscene topless dancing performances to willing customers under all circumstances.

Thus unlike the court in La Rue, we are not confronted with a broad attack on the facial validity of a statute which in "substance” prohibits acts of "gross sexuality”, most of which are probably criminally obscene as well. Here the challenge narrowly focuses on a rule prohibiting a single activity, topless dancing, which is not inherently obscene. On the contrary it has been legally recognized as a form of expression (Doran v Salem Inn, 422 US 922) like nudity in art and sculpture. Of course involving conduct, as it does, it is undoubtedly subject to more restrictions than the more static arts. But although offensive to some, as all nudity or partial nudity is, it is nevertheless entitled to at least minimal protection under the First Amendment. Certainly the State could not prohibit topless dancing under all circumstances (Doran v Salem Inn, supra). Neither, in our view, may the State arbitrarily prohibit it at all places licensed to sell alcohol.

Here there is nothing in the record to show that the State’s conclusion, that this activity should not take place at licensed premises, was rationally based on evidence demonstrating a need for the rule. Indeed it appears that the law was not prompted by hearings or any legislative awareness of deficiencies in the prior regulation permitting topless dancing subject to restrictions and the continued supervision of the State Liquor Authority.

The State urges however that we indulge an additional presumption and assume that the Legislature did investigate and find sufficient facts to support the legislation (see, e.g., I. L. F. Y. Co. v Temporary State Housing Rent Comm., 10 NY2d 263, 269; Defiance Milk Prods. Co. v Du Mond, 309 NY 537). But even if the presumption could be held to be equivalent to the actual findings made in La Rue — a question we need not decide — it would be inappropriate in this case to presume that topless dancing posed a problem in premises licensed by the State Liquor Authority. It is, in fact, hard to imagine that the agency, which is so vigilant in enforcing the liquor laws and its own regulations would have continued to permit topless dancing at premises authorized to sell liquor if the audiences degenerated into "bacchanalian revelries” or became involved in "incidents of legitimate concern” to the State. Notably, even in California where such incidents occurred in bars permitting gross sexuality, the State found no need to prohibit topless dancing. It simply imposed restrictions similar to those previously found acceptable by the State Liquor Authority in this State (see La Rue v California, 326 F Supp 348, 359).

The State’s power to control and regulate the sale of alcoholic beverages is designed to protect the public from abuses related to alcohol consumption. It is not a license to censor whatever occurs at premises authorized to sell alcohol. Thus when the State employs this power in such a way as to infringe on activities entitled to some constitutional protection, it must at least demonstrate that there is a rational connection between the activity sought to be prohibited and the State’s legitimate concern in controlling liquor consumption. On the record before us there is nothing which would rationally support a conclusion that in this State it is dangerous to mix alcohol and topless dancing.

Accordingly the judgment of the Supreme Court, Erie County, should be affirmed.

Gabrielli, J.

(dissenting). I am impelled to dissent, for the holding of the majority is based upon what I perceive to be a misstatement of the law as enunciated by the United States Supreme Court in Doran v Salem Inn (422 US 922) and California v La Rue (409 US 109).

At issue on this appeal is the power of a State to prohibit topless dancing in an establishment which sells liquor for on-premises consumption. The majority finds this prohibition to be unconstitutional, apparently premising this conclusion upon the belief that the State bears the burden of justifying the rationality of its ban upon topless dancing in drinking establishments, because topless dancing is entitled to some First Amendment protections. The most recent pronouncements of the Supreme Court upon this subject, however, are expressly to the contrary (see California v La Rue, supra, at pp 118-119; Doran v Salem Inn, supra, at pp 932-933).

When a State acts to regulate the sale of liquor within its boundaries, its authority stems not merely from the normal police power of the State, but also directly from the Twenty-first Amendment to the United States Constitution. This grant of power by the Constitution serves to increase that authority which a State normally enjoys and to place a significantly greater burden upon a party seeking to challenge a State regulation of liquor as violative of some other provision of the United States Constitution. This is not to suggest that a State acting under the authority of the Twenty-first Amendment is free to ignore all other parts of the Federal Constitution (see, e.g., Wisconsin v Constantineau, 400 US 433; Craig v Boren, 429 US 190). Rather, the effect of the Twenty-first Amendment is to require those who would challenge a State regulation of liquor on the ground that it is violative of some other constitutional provision or of supreme Federal law, to prove that the particular interplay of provisions and purposes in each case mandates a disregard of the State’s otherwise legitimate powers (compare Hostetter v Idlewild Liq. Corp., 377 US 324, Seagram & Sons v Hostetter, 384 US 35, and State Bd. v Young's Market Co., 299 US 59, with California Liq. Dealers v Midcal Aluminum, 445 US 97).

In the instant case, plaintiffs claim that the ban on topless dancing in establishments which sell liquor for on-premises consumption is violative of the First Amendment. It is, of course, far too late in the day to suggest that dancing, even topless or nude dancing, is entitled to absolutely no First Amendment protections. Indeed, in both California v La Rue (409 US 109, 118, supra) and Doran v Salem Inn (422 US 922, 932, supra) the Supreme Court specifically recognized that such "entertainment” is not bereft of all protection because it does have some communicative aspects. At the same time, however, the court noted, with care, that such "art” forms "involve only the barest minimum of protected expression” (Doran v Salem Inn, supra, at p 932; accord California v La Rue, supra, at pp 117-118).

Because topless barroom dancing has so little communicative content and is accordingly entitled to only a minimum of First Amendment protection, whereas the State has the responsibility and, under the Twenty-first Amendment, the power to regulate the sale and use of liquor, the Supreme Court has declared not only that a statute prohibiting or limiting such dancing must be upheld unless it is clearly irrational, but also that the burden is on the challenger of such a law to overcome a presumption of constitutionality and prove that the law is irrational (California v La Rue, supra, at pp 118-119). Indeed, in Doran v Salem Inn, the court expressly stated that "[i]n La Rue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program” (422 US, supra, at pp 932-933). Moreover, and of great significance, in that same opinion the court intimated that the ban on topless dancing there involved would clearly have been constitutional had it been enacted pursuant to the State’s powers under the Twenty-first Amendment and accordingly limited to establishments selling liquor (Doran v Salem Inn, supra, at p 933).

Applying these principles to the instant case, it is painfully obvious that the challenged statute is indeed valid and constitutional. Clearly, plaintiffs have not met their burden of proving this particular exercise of the State’s power to regulate the sale of liquors to be irrational. Indeed, even the majority of this court appears to have impliedly conceded that plaintiffs have failed to meet this burden since, in order to declare the statute unconstitutional, the majority is forced to place the burden of proving the statute’s reasonableness upon the State, in direct contradiction to the doctrine enunciated in La Rue. Moreover, this statute does contain the very limitations which the Supreme Court indicated would have sufficed to place the ordinance at issue in Doran beyond challenge. Hence I find it impossible to concur in the result reached by a majority of this court today.

In conclusion, I must emphasize that Judges called upon to determine the constitutionality of a challenged statute are required to set aside their personal opinions of what is best and strive "to resolve the issue by constitutional measurement, free of emotion and of predilection” (Roe v Wade, 410 US 113, 116). This is so for the very basic reason that "the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution” (Lochner v New York, 198 US 45, 76 [Holmes, J., dissenting]). In his official capacity, a Judge may serve neither as a moralist nor as a libertine, but simply must endeavor to decide each case on the basis of the applicable law. Whatever artistic or communicative value may attach to topless dancing is here overcome by the State’s exercise of its broad powers arising under the Twenty-first Amendment. No reasonable person, moralist or not, could deny that the admixture of alcohol and topless dancing presents a very real possibility of disturbances of the public peace in licensed premises, a problem which may be addressed in advance by the Legislature. The elected representatives of the people of this State have now chosen to avoid such disturbances by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Although some may believe this solution to be unwise or unnecessary, there exists no justification for disturbing the legislative judgment in this case.

Accordingly, I dissent and vote to reverse the judgment appealed from and to declare the statute to be constitutional.

Judges Jones, Fuchsberg and Meyer concur with Judge Wachtler; Judge Gabrielli dissents and votes to reverse in a separate opinion in which Chief Judge Cooke and Judge Jasen concur.

Judgment affirmed, with costs. 
      
      . The rules provide that a license or permit may be revoked, canceled or suspended "For suffering or permitting on licensed premises (1) any lewd or indecent conduct or (2) any person to appear unclothed or in such manner or attire as to expose to view any portion of the pubic hair, anus, vulva or genitals, or any simulation thereof’ (9 NYCRR 53.1 [r]).
     
      
      . This rule (former subd [s] of 9 NYCRR 53.1) provided that the licensee should not suffer or permit "any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof. The provisions of this subdivision shall not apply to any female entertainer performing on a stage or platform which is at least 18 inches above the immediate floor level and which is removed by at least six feet from the nearest patron.”
     
      
      . The statute reads as follows: "No retail licensee for on-premises consumption shall suffer or permit any person to appear on licensed premises in such manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, nor shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola” (Alcoholic Beverage Control Law, § 106, subd 6-a).
     
      
      . The Twenty-first Amendment, which repealed national prohibition, also provides in the second section: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
     
      
      . The court expressly relied on the First Amendment. Although it also concluded, summarily, that subdivision 6-a violated section 8 of article I of the State Constitution, we find it unnecessary to consider that question or the additional points raised in the complaint, since in our view, the First Amendment argument presented in the first cause of action is dispositive.
     
      
      . We recognize, as the dissent does, that in Doran the Supreme Court observed, in dictum (at pp 932-933), that they had concluded in La Rue that "the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program”. We also note, however, that more recently the Supreme Court has taken a narrower view of its holding in La Rue, indicating, again by way of dictum, that in that case they had simply "relied upon the Twenty-first Amendment to 'strengthen’ the State’s authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances 'partake more of gross sexuality than of communication’ ” (Craig v Boren, 429 US 190, 207). We, of course, do not consider this dictum any more controlling than the contrary dictum in Doran. What we do consider dispositive are the factors which the Supreme Court discussed so extensively and actually relied upon in La Rue as noted above.
     
      
      . Of course when the State seeks to prohibit more traditional forms of expression, it must make a more compelling showing of need for the restriction. For instance, it would be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that political discussions in bars often lead to disorderly behavior, assaults and even homicide.
     