244 East 53rd Street Restaurant, Inc. v. New York State Liquor Authority

Kupferman, J.,

concurs in a memorandum as follows: I concur in the result. While there was substantial evidence that the petitioner’s management should have known of the homosexual solicitations, the penalty imposed under the circumstances of this case was excessive. The petitioner, of his own volition, closed his premises for two months (the equivalent of a suspension of license) and renovated and converted the premises to provide a new atmosphere which would not have the former problems. The City of New York, having commenced a civil nuisance abatement action against the premises under the Administrative Code of the City of New York, on the ground that two or more convictions for acts of prostitution constitute a “public nuisance,” stipulated with the petitioner that the nuisance abatement action would be discontinued if the premises were to be found to be orderly until September 30, 1981. The original acts of prostitution occurred in December, 1980. The voluntary closure for renovation was in January and February, 1981. The nuisance abatement action was in February and the stipulation in July. On October 1, 1981, pursuant to the stipulation, the nuisance abatement action was discontinued. Under all of the circumstances, the revocation of license in January, 1982 based on the December, 1980 offenses, did not have a rational basis.