No Dancing Allowed/Cabaret Laws

Consumer Affairs Guide/Cabarets and nightclubs

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Cabaret Law--Cite to Administrative Code of the City of New York

*** THIS DOCUMENT IS CURRENT THROUGH SUPPLEMENT 3, 2001 ***

ADMINISTRATIVE CODE OF THE CITY OF NEW YORK

TITLE 20: CONSUMER AFFAIRS

CHAPTER 2: LICENSES
SUBCHAPTER 20: PUBLIC DANCE HALLS, CABARETS AND CATERING ESTABLISHMENTS
NYC Administrative Code @ )
@ 20-359 Definitions.

Whenever used in this subchapter the following terms shall mean:

1. "Public dance hall." Any room, place or space in the city in which dancing is carried on and to which the public may gain admission, either with or without the payment of a fee.

2. "Public dance or ball." Any dance or ball of any nature or description to which the public may gain admission.

3. "Cabaret." Any room, place or space in the city in which any musical entertainment, singing, dancing or other form of amusement is permitted in connection with the restaurant business or the business of directly or indirectly selling to the public food or drink, except eating or drinking places, which provide incidental musical entertainment, without dancing, either by mechanical devices, or by not more than three persons.

4. "Catering establishment." Any room, place or space in the city, which is used, leased or hired out in the business of serving food or beverages for a particular function, occasion or event, to which the public is not invited or admitted and wherein music or entertainment is permitted.

5. "Person." An individual, corporation, club, partnership, association, society or any other organized group of persons, and shall include officers, directors and trustees of a corporation, club, association or society.

6. "Employee." A person employed in any capacity or title in connection with a cabaret or public dance hall, including the licensee and any and allpersons responsible for the control or management thereof. It shall also include a concessionaire and each person employed by such concessionaire.

HISTORICAL NOTES:
20-359 amd by LL 1986 No 34, @1, eff Jul 9, 1986.

CONSTITUTIONAL
The Court held that while 0, which defines "cabaret" for the purpose of licensing under 0, may result in a citizen who runs an establishment which provides amusement not specifically prohibited by the statute unaware of whether he has violated the statute, it is not unconstitutional. Likewise, that portion of 0 which creates an exception to the licensing requirement could conceivably mandate a result not intended by the legislature. Consideration, however, is suggested for legislative revision for the purposes of clarity. People v Walter, 106 Misc 2d ).

DEFINED
The court held that an establishment which permits musical entertainment by not more than three persons playing specified instruments, or by not more than one singer accompanied by one specified instrumentalist, is not a "cabaret" as defined by 0(3). Waverly & Waverly v City of New York Department of Consumer Affairs, 121 AD2d 969 (4) (First Dept., 7-31-86).

EXCEPTION
The Court held that incidental entertainment by not more than three persons playing certain instruments or one person accompanied by himself or one other is an exception to the 0 requirement that a cabaret be licensed, and to 0, which defines cabaret as a room in which musical entertainment is provided in connection with the restaurant business. Where three persons entertain as an ensemble, and one puts the instrument aside and sings solo, the statutes are complied with. People v Byrne, 84 Misc 2d ).

ORDINANCE LIMITING MUSICAL INSTRUMENTS-UNCONSTITUTIONAL
The Court held that there is no substantial governmental interest furthered by the 0 ordinance which limits the types of musical instruments which can provide "incidental musical entertainment" in unlicensed eating and drinking establishments. The restrictions are an unconstitutional infringement upon the freedom of musical expression especially since noise control problems are adequately addressed by the Noise Audible Law, Chiasson v New York City Department of Consumer Affairs, 132 Misc 2d ).

PRIOR NON-CONFORMING USE
The Court held that a determination regarding the issuance of a cabaret license to a restaurant and bar business in which a certificate of occupancy was issued in 1956 permitting the use of the cellar for a cabaret, including dancing, may not utilize the definition of "cabaret" in the 1961 zoning resolution, 0(3), which excludes dancing to deny the licensing. The petitioner has a right to continue that use which was permitted by the certificate of occupancy, even though rendered non-conforming by the zoning resolution. Moon Luck Corp. v Guggenheimer, 65 AD2d 745, 12 (First Dept., 11-30-78).

THREE MUSICIAN LIMITATION-UNCONSTITUTIONAL
The three musician limitation contained in the incidental music exception to @20-359(3) is unconstitutional. The City provides no evidence to demonstrate that the limitation advances a compelling state interest. Chiasson v New York City Department of Consumer Affairs, 524 NYS2d ), 138 Misc 2d 394.

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DO I NEED A CABARET LICENSE?

A Consumer Affairs Guide to Doing Business in New York City Legally and Responsibly

Cabarets and nightclubs have helped to give New York City its reputation as "the City that never sleeps." However, operating a nightclub comes with the enormous responsibility of protecting your patrons, as well as the quality of life of neighborhood residents.

For this reason, cabaret license applicants must strictly adhere to all safety and zoning regulations when operating a cabaret. To give you‹the cabaret owner‹the information you need to run a safe and lawful business, the Department of Consumer Affairs has put together the information below. It also contains comprehensive instructions that will facilitate the license application and renewal process.

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What is a Cabaret?

According to Title 20, Subchapter 20 of the New York City Administrative Code, a "cabaret" is any room, place or space in the City in which dancing is permitted in connection with the restaurant business or the business of directly or indirectly selling food or drink to the public.

Any location that is the site of cabaret activity must obtain a cabaret license from the New York City Department of Consumer Affairs (DCA).

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Exceptions
There are three exceptions to the licensing requirement:

1. Premises owned, occupied and used exclusively by a membership corporation, club, society, or association provided such membership corporation, club, society, or association was in actual existence before January 1, 1926.

2. Premises owned, occupied and used exclusively by a religious, charitable, eleemosynary or educational corporation or institution.

3. Premises that have an amusement arcade license.

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How Do I Get A License?

You can get a cabaret license application by calling Consumer Affairs at . You can also visit or write the Consumer Affairs Licensing Center at 42 Broadway, 5th Floor, New York, NY 10004. ItąsMonday through Friday, 8:30 am to 5 pm. The agency also has a TTY phone number‹‹for the hearing and/or speech impaired.

Before an application can be filed with Consumer Affairs, several requirements must be met. First, and foremost, an establishment must have the proper Certificate of Occupancy, which is issued by the Department of Buildings. In most circumstances, premises that wish to allow patrons to dance must have "Use Group 12" on their "Certificate of Occupancy."

Even if the location is properly zoned for cabaret use, certain inspections and clearances must be completed before an application for a cabaret license will be accepted for filing. Both the Bureau of Electrical Control and the Fire Department must inspect your premises. The application information package you will receive from DCA includes instructions pertaining to this process.

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The following is a checklist of things you will need to apply for your cabaret license:

1. The basic application.

2. Official Photo ID of person submitting the application.

3. Notarized affidavit, if the application is filed by someone other than owner, partner or corporate officer.

4. The former ownerąs license document‹if the premises were licensed by a former owner‹or an affidavit stating that the document is not in your possession.

5. The license fee. Depending upon when you apply for your license and the number of seats in the cabaret, the fee can range from $150 to $1,000. Find out from Consumer Affairs what your application will cost before you come down.

6. An affidavit swearing you will not operate your cabaret before the license has been issued.

7. A Certificate of Incorporation, if incorporated, stamped by the New York Secretary of State.

8. If you are a sole proprietor or partnership, a notarized copy of your business certificate or partnership certificate, which has been certified by the County Clerk where the cabaret is/will be located. Make sure that the address on the certificates match the address of the cabaret you areng.

9. Sales Tax ID Number. The 9-digit number is on your "Certificate of Authority." Record the number on question #5 of your application. If you donąt have this certificate, you may get it at the Consumer Affairs Licensing Center.

10. If the total capacity of your business is greater than 74: You need one copy of current "Place of Assembly" permit. If the capacity is less than 75: Submit one original "Certificate of Occupancy" for proper usage, stamped by the Department of Buildings. It must approve "Use Group 12," "Cabaret," or "Eating and drinking without restriction or entertainment."

11. Food Establishment Permit. Available from the DCA Licensing Center.

12. Environmental Control Board Clearance. Also available at the Consumer Affairs Licensing Center.

13. One original affidavit saying that all the drapes are flameproofed or that no drapes at all will be used on the premises.

14. Notarized Affidavit of Security Personnel Background Check.

15. Affidavit of Compliance with Zoning Resolution Sections 12-10; 32-01; 32-66; 42-01; and 42-55 prohibiting the creation of a new or enlarged adult establishment.

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What Are My Responsibilities As A Cabaret Licensee? Among the responsibilities of a cabaret owner are the following:

1. A cabaret shall make a good faith effort to ensure that the crowd awaiting admission to or leaving the premises does not cause excessive noise or litter or behave in a manner that would disturb the public peace or safety.

2. Cabarets that are required to have an indoor waiting area as a condition of their "Certificate of Occupancy" shall utilize that area to its maximum capacity at all times when crowds are awaiting admission.

3. A cabaret shall designate at least one individual who will be responsible for receiving complaints concerning the operation of the cabaret. This individual must be accessible during the hours the premises arefor business and shall respond to any complaints in a timely and reasonable manner.

4. All entrances and exits of a cabaret shall remain unlocked while there are patrons on the premises.

5. During hours of operation, every part of a cabaret shall be accessible to Department of Consumer Affairs inspectors and authorized members of the Police Department.

6. A cabaret shall not employ as security personnel any individual who has in the previous five years been convicted of a criminal offense where the granting of the employment would involve an unreasonable risk to the public.

7. A cabaret must be closed to the public between 4 am and 8 am if it does not have a liquor license.

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What If I Violate the Law?

Establishments that allow dancing without a license can be cited by Consumer Affairs and subject to fines and stringent sanctions, including the possibility of being padlocked. Licensees who fail to comply with applicable DCA laws and rules may be subject to an administrative hearing where fines and license suspension or revocation can be imposed.

Furthermore, places that have music and dancing are subject to other laws, such as the commercial music provisions of the noise code enforced by NYC Department of Environmental Protection that can result in additional sanctions.

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Will I Need Any Other Licenses?

Depending on the nature of your business, you may need other licenses from authorities other than the Department of Consumer Affairs.

For example, places interested in serving liquor must obtain a license from the State Liquor Authority. Those places planning to serve food must obtain a Food Establishment Permit and take the course required by the Department of Health. And any establishment interested in setting up a sidewalk café must obtain a separate license from the Department of Consumer Affairs.

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Good Neighbor Policy

As a final note, please remember that cabarets frequently operate when many of their neighbors in the surrounding community are trying to get a good nightąs sleep. To help ensure that everyoneąs quality of life is preserved, please make every effort to control your patrons so that they wonąt disrupt the neighborhood.

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