
    In the Matter of Lansdown Entertainment Corporation, Doing Business as The Limelight, Respondent, v New York City Department of Consumer Affairs et al., Appellants.
    Argued June 6, 1989;
    decided July 11, 1989
    
      APPEARANCES OF COUNSEL
    
      Peter L. Zimroth, Corporation Counsel (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for appellants.
    
      James M. Felix and Stephen E. Powers for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioner operates the Limelight, a popular discotheque, which is licensed as a "cabaret” by respondent New York City Department of Consumer Affairs pursuant to subchapter 20 of chapter 2 of title 20 of the Administrative Code of the City of New York (the Cabaret Law). The Limelight is also licensed to sell liquor for consumption on its premises pursuant to the New York State Alcoholic Beverage Control Law (Alcoholic Beverage Control Law § 106). The Cabaret Law requires licensed cabarets to close between the hours of 4:00 a.m. and 8:00 a.m. (Administrative Code of City of New York § B32303.0 [renum § 20-367]). The applicable State law prohibits the sale of alcohol after 4:00 A.M., but permits patrons to continue to consume alcoholic beverages upon the premises until 4:30 a.m. (Alcoholic Beverage Control Law § 106 [5] [b]). Although both laws prohibit the sale of alcohol past 4:00 A.M., the State law thus permits patrons to remain on the premises consuming alcohol until 4:30 A.M., while the Cabaret Law does not. Relying on this conflict, petitioner maintains that this provision of the Cabaret Law is preempted by the State law. We agree.

In People v De Jesus (54 NY2d 465) this court held that the Alcoholic Beverage Control Law is preemptive of local law because the regulatory system is both "comprehensive and detailed” (id., at 469). Consequently, we held that a Rochester City ordinance prohibiting persons from patronizing an establishment selling alcoholic beverages after 2:00 a.m. was preempted by the State law because "by prohibiting persons from patronizing such establishments at times when State law would permit them to do so, the local law, in direct opposition to the pre-emptive scheme, would render illegal what is specifically allowed by State law” (id., at 472).

In De Jesus, however, we noted that establishments selling alcoholic beverages are not exempt from local laws of general application. Such laws are principally aimed at legitimate concerns of local government and do not directly affect the field preempted by the State law. For example, laws "requiring smoke alarms in all business premises, or * * * forbidding dumping of refuse on city sidewalks, or * * * prohibiting disorderliness at any 'place of public resort’ ” (People v De Jesus, 54 NY2d 465, 471, supra, citing People v Hardy, 47 NY2d 500), would not be preempted if their enforcement incidentally infringed on the State Alcoholic Beverage Control Law.

Relying on this exception to the preemption rule, respondent argues that section B32-303.0 of the Administrative Code is a statute of general application because it is founded upon a legitimate exercise of local police power in that it seeks to maintain the peace, comfort and decency of residential neighborhoods by controlling noise and traffic. Additionally, respondent maintains that this ordinance is not preempted because it does not explicitly regulate the sale of alcohol as did the regulation in De Jesus. These contentions are without merit.

As Supreme Court concluded, the legislative history of the City ordinance does not "indicate a specific intent * * * to exercise a legitimate local function such as maintaining the peace and quiet of residential neighborhoods.” Rather, "historical analysis indicates that for most of its life, the local law merely mirrored the State law.” (133 Misc 2d 206, 210.) In fact, there is a dearth of legislative history to support respondent’s claim.

Nevertheless, even assuming that this local ordinance was adopted for the claimed purpose, this conclusion would not alone be sufficient to surmount the preemption hurdle. Even where the local goal does not conflict with State legislative objectives, the locality must still tailor its ordinance to ensure that its impact upon the preempted field is merely incidental. Compelling a business licensed by the State Liquor Authority to close at a time at which customers are otherwise permitted to remain on the premises and consume alcoholic beverages directly regulates subject matter within the exclusive jurisdiction of the State (see, People v De Jesus, 54 NY2d 465, 470, n 3, supra). In this regard, there is a head-on collision between the City ordinance as it is applied to establishments also licensed by the State. Since the State has preempted any local regulation concerning the subject matter of hours of operation, distribution, or consumption, local laws which concern the same subject matter must give way to the State law (see, Dougal v County of Suffolk, 102 AD2d 531, 532-533, affd 65 NY2d 668; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351).

That the City ordinance is not explicitly directed at the sale or consumption of alcoholic beverages is of no consequence since application of the preemption doctrine does not turn on semantics. Rather, the direct consequences of a local ordinance should be examined to ensure that it does not "render illegal what is specifically allowed by State law” (People v De Jesus, 54 NY2d 465, 472, supra; see, e.g., Wholesale Laundry Bd. of Trade v City of New York, 12 NY2d 998, affg 17 AD2d 327).

The suggestion raised in the dissenting opinion that the State Alcoholic Beverage Control Law preempts only those local laws which pertain to the sale and distribution of alcohol, as opposed to the consumption of alcohol, ignores both the plain wording of the State law at issue (Alcoholic Beverage Control Law § 106 [5] [b] ["Nor shall any person be permitted to consume any alcoholic beverages upon any such premises”; emphasis supplied]), as well as this court’s decision in De Jesus (see, People v De Jesus, supra, at 470, n 3; see also, id., at 472 [Gabrielli, J., dissenting] [the State has preempted the field " 'for the purpose of fostering and promoting temperance in (the public’s) consumption and respect for and obedience to law’ emphasis supplied]). In addition, the argument that the local law is not inconsistent with the State statute (dissenting opn, at 766) is founded on the view that the local law does not prohibit "an act which has been specifically permitted by State law.” (Id., at 767 [emphasis supplied].) To the contrary, the State law specifically allows patrons to remain on the premises consuming alcohol until 4:30 a.m., while the local law does not. This is not a tiny overlap (see, id.), but a direct conflict. Where a State law indicates a purpose to occupy an entire field of regulation, as exists under the Alcoholic Beverage Control Law, local regulations are preempted regardless of whether their terms conflict with provisions of the State statute or only duplicate them (see, Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 106-107; People v De Jesus, 54 NY2d 465, 468-469, supra; Dougal v County of Suffolk, 102 AD2d 531, 532-533, affd 65 NY2d 668, supra). If a local ordinance which merely duplicates a State law is preempted, assuredly a local law which conflicts with the State law must also be preempted.

Bellacosa, J.

(dissenting). I disagree that the City of New York’s local legislative effort to close all cabarets, dance halls and catering establishments for four hours, between 4:00 a.m. and 8:00 a.m., is preempted by the State Alcoholic Beverage Control Law.

No one challenges the New York State Alcoholic Beverage Control Board’s comprehensive authority to regulate the sale and distribution of alcoholic beverages. That State law overrides any local legislation which would purport to regulate the sale and distribution of alcohol. Thus, if the purpose or effect of Administrative Code of the City of New York § B32-303.0 were to regulate the hours of sale of alcoholic beverages, it would be invalid and unenforceable (People v De Jesus, 54 NY2d 465, 472). But that is not what this local law does in the context of local governments’ prerogatives to enact local laws of general application which are aimed at other legitimate concerns of local government so long as they do not intrude essentially on the State’s exclusive control over the sale or distribution of alcohol (People v De Jesus, supra, at 471).

Administrative Code § B32-303.0 (renum § 20-367) provides, without any reference whatsoever to the sale or distribution of alcoholic beverages, that all cabarets, catering establishments and public dance halls in the City of New York must be closed to the public between the hours of 4:00 a.m. and 8:00 a.m. The local law is generally applicable in the City of New York to every establishment, whether it is licensed to sell alcoholic beverages or not. Alcoholic Beverage Control Law § 106 (5) affects only those establishments licensed to sell alcoholic beverages for on-premises consumption and prohibits sale or distribution of alcoholic beverages between 4:00 a.m. and 8:00 a.m. (to noon on Sundays). It further forbids such establishments from permitting customers to continue to consume alcoholic beverages on premises any later than 4:30 a.m.

In a not unrelated development with respect to a similarly directed New York City statute, the United States Supreme Court, on June 22, 1989, said: "It can no longer be doubted that government 'ha[s] a substantial interest in protecting its citizens from unwelcome noise.’ This interest is perhaps at its greatest when government seeks to protect 'the well-being, tranquility, and privacy of the home,’ but it is by no means limited to that context, for the government may act to protect even such traditional public forums as city streets * * * from excessive noise.” (Ward v Rock Against Racism, 491 US —, 109 S Ct 2746, — [citations omitted].) If that New York City quality-of-life noise control law could pass constitutional muster measured against the First Amendment of the United States Constitution, surely the similarly targeted local law under challenge here ought not fall before that hardly comparable paragon, the State Alcoholic Beverage Control Law.

The local law serves the legitimate local government concern of maintaining the peace and quiet of its municipal neighborhoods for a brief and relevant portion of each day. It makes no effort to control the sale of and distribution of alcoholic beverages. To be sure, the local law may incidentally affect the consumption of alcohol for one overlapping half hour in the wee hours when most people are turning over for the last time before getting up to go to work. It is that one-half hour during which the Alcoholic Beverage Control Law itself forbids sale and merely tolerates patrons taking their final gulps to finish "last call” drinks purchased prior to 4:00 a.m. The local law therefore does not clash with the State sale regulation and affects consumption only in the most de minimis fashion and in a manner no greater than is needed to further the general and broader local interest in maintaining tranquility in its neighborhoods for the good of all its citizens and residents. It can legitimately be characterized as not a direct regulatory proposition in the strict legal sense of that word. In any event, the mere fact "that the State and local laws touch upon the same area is insufficient to support a determination that the State has preempted the entire field of regulation in a given area” (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 99 [citations omitted]; see also, Frew Run Gravel Prods. v Town of v Carroll, 71 NY2d 126, 131).

As noted, Administrative Code § B32-303.0 is not inconsistent with the Alcoholic Beverage Control Law. A local law will be deemed inconsistent with a State statute if thé local law permits an act which has been specifically prohibited by State law or, conversely, if the local law prohibits an act which has been specifically permitted by State law (New York State Club Assn. v City of New York, 69 NY2d 211, affd 487 US 1, 108 S Ct 2225). Administrative Code § B32-303.0 clearly does not permit an act which has been prohibited by State law because the local law does not authorize anything between the hours of 4:00 a.m. and 8:00 a.m. — except some peace and quiet. Nor does the local law prohibit an act which has been specifically permitted by State law. Alcoholic Beverage Control Law § 106 (5) prohibits establishments with State liquor licenses from selling or distributing alcoholic beverages between 4:00 a.m. and 8:00 a.m. — that part is four-square consistent with the closing hours mandated by the local law. It is only the failure to forbid the customers from finishing their earlier purchased alcoholic beverages until 4:30 a.m. that creates the tiniest overlap (see, Jancyn Mfg. Corp. v County of Suffolk, supra, at 99). That, however, does not qualify as a legal preemption collision. The State law does not specifically authorize any conduct during that period; it rather forebears regulation, tolerates a transition instead of an abrupt ending, and it expressly prescribes the kind of conduct that is unlawful. The State law is actually silent on the precise subject of alleged controversy here and that silence should not be elevated, transformed or implied into a superseding interest (People v Judiz, 38 NY2d 529, 532; People v Cook, 34 NY2d 100).

The majority’s invalidation of this local law creates the anomaly that the City can order nonalcoholic-dispensing establishments to close and be quiet, but it is powerless as to those in which patrons are allowed to down their drinks for an extra half hour. It also strikes me as a bit incongruous to have the regulated licensees defending the honor and power of their regulatory protagonist, the State Liquor Authority— which appears to have little or no interest in defeating this small effort by the City of New York to improve ever so incrementally the quality of life of all its residents.

I dissent and would reverse and declare the local law valid.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur; Judge Bellacosa dissents and votes to reverse in an opinion.

Order affirmed, with costs, in a memorandum.  