PEOPLE v. SERRO (1998)

Defendant is charged with violating Alcoholic Beverage Control (“ABC”) Law § 106, subd. 6.   The accusatory instrument, a universal summons, alleges that on August 30, 1998, defendant “fail[ed] to maintain adequate security resulting in a dispute where two participants received injuries.”   Defendant moves to dismiss the charges against him on the ground that the accusatory instrument is facially insufficient.

ABC Law § 106(6) mandates that no licensee “suffer or permit [the licensed] premises to become disorderly.”   Defendant argues that in order for the accusatory instrument to be facially sufficient under this section, it must allege facts showing more than a single act or incident in which the premises were disorderly.   For the reasons stated below, defendant's motion to dismiss the summons is denied.

 In order to be facially sufficient an accusatory instrument must allege facts of an evidentiary character supporting or tending to support the offenses charged, CPL § 100.15(3);  provide reasonable cause to believe that the defendant committed the offense charged, CPL § 100.40(1)(b);  and must contain non-hearsay allegations which establish, if true, every element of the offense charged and defendant's commission thereof.   CPL § 100.40(1)(c).  See also People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986);  People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987);  People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977).

 Subdivision 6 of ABC Law § 106 provides, “No person licensed to sell alcoholic beverages shall․ suffer or permit such premises to become disorderly.”   A licensed premises is “disorderly” when it violates public order or morality, or constitutes a nuisance.  People v. Bart's Restaurant Corp., 42 Misc.2d 1093, 249 N.Y.S.2d 344 (Crim.Ct., N.Y. County 1964);  People v. Arenella, 139 N.Y.S.2d 186, 189 (N.Y.C.Magis.Ct.1954).

 Case law has interpreted ABC Law § 106(6) as requiring evidence that the licensee knew or should have known of the disorderly condition on the premises and tolerated its existence.  Beer Garden, Inc. v. State Liquor Auth., 79 N.Y.2d 266, 275, 582 N.Y.S.2d 65, 590 N.E.2d 1193 (1992);  In re Playboy Club of N.Y. v. State Liquor Auth., 23 N.Y.2d 544, 550, 297 N.Y.S.2d 926, 245 N.E.2d 697 (1969).   Thus, the courts have held that there was no violation where the events leading to the disorderly condition were unexpected and of such brief duration that the licensee could not have prevented them through reasonable supervision.  Moon Walkers Restaurant Corp. v. New York State Liquor Auth., 250 A.D.2d 428, 673 N.Y.S.2d 16 (1st Dep't 1998).   Where, however, conduct occurred on a single night but was ongoing for several hours, a violation of ABC Law § 106(6) has been found.  P.M. Entertainment Indus. v. State Liquor Auth., 114 A.D.2d 457, 459, 494 N.Y.S.2d 368 (2d Dep't 1985), aff'd, 67 N.Y.2d 834, 501 N.Y.S.2d 659, 492 N.E.2d 787 (1986).   Ultimately, the question of whether licensed premises have been disorderly is factual.  92-07 Restaurant, Inc. v. New York State Liquor Auth., 80 A.D.2d 603, 435 N.Y.S.2d 989 (2nd Dep't 1981);  In re Peanutbutter Jam, Inc. v. New York State Liquor Auth., 58 A.D.2d 703, 396 N.Y.S.2d 104 (3rd Dep't 1977).

 Here the accusatory instrument alleges facts (a dispute resulting in injury) which indicate that the premises violated, at minimum, public order and therefore were “disorderly.”   Moreover, the accusatory instrument informs the defendant specifically of the manner in which he is alleged to have suffered or permitted the disorderliness, i.e., the failure to maintain adequate security.   Thus, the factual allegations, although minimal, satisfy the requirements of the statute.   While the summons does not set forth the duration of the incident, this is a factual issue to be resolved at trial.   Accordingly, the motion to dismiss the accusatory instrument is denied.

ELLEN M. COIN, J.