Gold v. Lomenzo
| Decision Date | 18 September 1969 |
| Docket Number | No. 69 Civ. 3720.,69 Civ. 3720. |
| Citation | 304 F. Supp. 3 |
| Parties | David C. GOLD, Plaintiff, v. John P. LOMENZO, individually and as Secretary of State of the Department of the State of New York, the Department of State of the State of New York and Howard R. Leary, individually and as Police Commissioner of the Police Department of the City of New York, Defendants. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Norman J. Mordkofsky, New York City, for plaintiff.
Louis J. Lefkowitz, Atty. Gen. of New York, by Charles A. LaTorella, Jr., Asst. Atty. Gen., for defendants Lomenzo and Department of State.
The plaintiff has moved to enjoin the New York Department of State from enforcing an order dated July 24, 1969 suspending the plaintiff's real estate brokerage license for "demonstrated untrustworthiness" and fining him the sum of $250. The suspension ordered is to continue until plaintiff returns monies obtained from certain customers; deletes a certain clause in his Apartment Rental Agreement and agrees that his charge for renting apartments will not exceed one month's rent. The plaintiff's license was suspended following a departmental hearing duly held at which the plaintiff was represented by counsel. The hearing officer found among other things, that the defendant had charged unconscionably excessive fees to prospective apartment tenants. The findings were concurred in by the Secretary of State and the recommendations of the hearing officer were adopted and constituted the order referred to herein.
Contending that the licensing statute is unconstitutional the plaintiff invokes the jurisdiction of this Court under the Civil Rights Act, 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and (4) and the Declaratory Judgment Act, 28 U.S.C. § 2201, and in his affidavit in support of the motion for an injunction, plaintiff's counsel requests the convening of a three-judge court pursuant to 28 U.S.C. § 2281.
Section 441-c of Article 12-A of the Real Property Law of the State of New York, McKinney's Consol. Laws, c. 50, empowers the Department of State to revoke or suspend the license of a real estate broker on various grounds set forth in the statute including "demonstrated untrustworthiness or incompetency to act as a real estate broker or salesman." The constitutionality of this portion of the statute is questioned on the grounds that (i), no standards for determining "untrustworthiness" are set out; (ii), the section is overbroad; (iii), the section is unconstitutionally vague and deprives the plaintiff of due process; (iv), the plaintiff's liberty to contract has been infringed by the order since he must agree henceforth to charge only one month's brokerage commission and to return fees and monies heretofore collected under contracts with various clients.
Plaintiff further alleges that "by virtue of the unlawful and unbridled activity and conduct of * * * LOMENZO, Secretary of State minority groups have been incited unlawfully and improperly against the plaintiff and frenzied demonstrations and of a disorderly and violent nature have been taking place repeatedly in front of and in the area and even inside the plaintiff's place of business with the participants bearing placards branding the plaintiff with every conceivable sort of misdeed, all instigated by the said defendant LOMENZO, thus effectively destroying the plaintiff's business and property rights, precluding customers and patrons from entering plaintiff's premises and even instilling fear in landlords to deal any further with the plaintiff * * * and these participant members of minority races are now engaging in a warfare against the plaintiff as if the matter were one of racial hatred and violence is imminent, thus, the defendant Police Commissioner of the City of New York has been joined as a defendant in the instant cause of action for the reason that the Police Department of the City of New York and its officers are agreeable to stand by and merely to prevent a racial riot when the underlying cause is the unlawful raging of an irresponsible administrative officer".
The motion for a Three-Judge Court
The task of the district judge before whom an application for a three-judge court has been made is "* * * limited to determining whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute". Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 1296, 8 L.Ed.2d 794 (1962).
Section 441-c of the Real Property Law has been administered by the New York courts in a number of instances but so far as can be ascertained has not been tested on the grounds of unconstitutionality raised herein.
Plaintiff attacks § 441-c as an unconstitutional delegation by the state legislature of its powers to a state agency, there being no legislative standards to guide the Secretary of State in his determination of a broker's "untrustworthiness".
The doctrine of unconstitutional delegation of legislative authority stems from the provisions in the Constitution mandating a separation of powers as between the legislative and executive branches of government. U.S.Const. art. I, § 1 and art. I, § 8 ¶ 18. This doctrine is only applicable to delegation of federal power. There is no federal constitutional principle which prohibits a state legislature from delegating its powers to a state agency.
Whether the standard of "untrustworthiness" violates the Constitution of the State of New York is a question properly to be litigated in the state courts and raises no federal constitutional question.
Plaintiff has also attacked § 441-c as overbroad, and therefore unconstitutional under the due process clause of the fourteenth amendment.
Plaintiff does not explain the nature of this specific challenge to § 441-c. A contention that a statute is overbroad is ordinarily made where a statute proscribes certain conduct and imposes penalties on anyone who engages in this conduct. When the statute can be fairly read to proscribe legitimate conduct, that is, conduct protected by the Constitution (e. g., free speech) the statute is said to be overbroad. See, e. g., Zwickler v. Koota, 389 U.S. 241, 249-250, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). Plaintiff's attack on the statute in the case at bar as "overbroad" is not of this nature. No conduct is proscribed by § 441-c, but, rather, standards are set up under which an administrative agency is to judge the fitness of real estate brokers. Upon analysis the gravamen of plaintiff's charge of "overbreadth" is that under the broad sweep of the phrase "demonstrated untrustworthiness" the conduct of a real estate broker which may be wholly unrelated to his fitness to operate as a broker may be considered by the Secretary of State and result in the unwarranted suspension or revocation of his license. This contention is upon analysis intertwined with plaintiff's claim that the statute is an unconstitutional delegation of legislative authority, — a claim which the Court has already rejected — and the claim which will be discussed below, viz., that § 441-c is unconstitutionally vague and hence deprives plaintiff of his property without due process of law in violation of the fourteenth amendment to the Constitution.
Plaintiff's charge of vagueness lacks substantial merit. Initially, it should be noted, that plaintiff does not attack the New York Real Property Law for failing to accord procedural due process. The statutory scheme provides that before the Department of State may revoke or suspend a license, the licensee shall be notified in writing of the charges against him, and shall be given an opportunity to be heard in person or by counsel. Art. 12-A N.Y. Real Property Law § 441-e. Judicial review by an Article 78 proceeding (CPLR 7801 et seq.) of the determination of the Department of State is provided for in § 441-f. In addition, plaintiff does not claim that the standard of "untrustworthiness" is arbitrary and capricious in that it is unrelated to the ends sought to be accomplished by the legislation.
The gist of plaintiff's attack on the statute is that the standard of "untrustworthiness" is so vague that the Department of State is given free rein to suspend the licenses of real estate brokers.
The void for vagueness doctrine is one usually associated with criminal statutes, and the rubric is that a criminal statute is held to be so vague that it denies due process where it "* * * either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *". Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).
Another formulation is that the Court must determine whether the statute's "* * * words and phrases are so vague and indefinite that any penalty prescribed for their violation constitutes a denial of due process of law." Champlin Ref. Co. v. Corporation Comm'n, 286 U.S. 210, 243, 52 S.Ct. 559, 568, 76 L.Ed. 1062 (1932).
The Supreme Court seemingly has held only one state statute in the non-criminal area void for vagueness. See, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 70 & n. 16 (1960).
There is no doubt that it is within the state's police powers to enforce standards of conduct within its borders relating to...
To continue reading
Request your trial
-
Iron Workers Local No. 67 v. Hart, 54741
...federal power. A state legislature is not prohibited by federal constitution from delegating its power to a state agency. Gold v. Lomenzo, 304 F.Supp. 3 (S.D.N.Y.1969); 1 Davis, Administrative Law § 214, p. 146 n. 41 On the question of power delegation we recently held the important conside......
-
Gold v. Lomenzo
...the unconstitutionality of a statute, 28 U.S.C. § 2281,1 the district judge declined to request the convening of a three-judge court. 304 F.Supp. 3, 9. With respect to the claims which he regarded as within his jurisdiction as a single judge, he thought that plaintiff's probability of succe......
-
Gold v. Lomenzo
...a statutory court to consider the constitutionality of section 441--c of the Real Property Law. The application was denied (Gold v. Lomenzo, D.C., 304 F.Supp. 3), but on appeal, the United States Court of Appeals for the Second Circuit reversed on the ground that appellant's contention that......
-
Gold v. Lomenzo
...application thereof. The District Court denied a preliminary injunction and refused to convene a three-judge court. Gold v. Lomenzo, 304 F.Supp. 3 (S.D.N.Y.1969). On appeal, the decision of the District Court was reversed. The Court of Appeals held that the claim that the limitation on Gold......