Albert Simon, Inc. v. Myerson
| Decision Date | 01 April 1975 |
| Citation | 36 N.Y.2d 300,327 N.E.2d 801,367 N.Y.S.2d 755 |
| Parties | , 327 N.E.2d 801 In the Matter of ALBERT SIMON, INC., et al., Respondents, v. Bess MYERSON, as Commissioner of Consumer Affairs of the City of New York, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Adrian P. Burke, Corp. Counsel, New York City (Nina G. Goldstein and L. Kevin Sheridan, New York City, of counsel), for appellant.
Isadore B. Hurwitz and Peter Campbell Brown, New York City, for respondents.
This article 78 proceeding was brought by distributors of four kinds of pinball game machines to vacate a determination of the Commissioner of Consumer Affairs of the City of New York withdrawing approval for licensing and installation of such machines at various premises in the City of New York pursuant to article 5 of Chapter 32 of the Administrative Code of the City of New York (§§ B32--40.0--B32--44.0; 436--8.0). Petitioners, while conceding there is an element of chance involved in the playing of these games, contend they are essentially amusement rather than gambling devices because no contest takes place between the players and machine (i.e., its owners) resulting in the award of a prize, free play or other benefit to any player. The difficulty with that contention is that the code's provisions are not limited to gambling devices per se. Instead, in relevant parts, they provide: (Administrative Code of City of New York, § 436--8.0, subd. c); and (§ 436--8.0, subd. b).
A very extensive declaration of legislative purpose incorporated in the ordinance (§ 436--8.0, subd. a) makes clear that it is the Use to which such gaming devices are put rather than their inherent characteristics that motivated their interdiction. For the declaration states, among other things, that 'such gaming devices encourage and foster gambling among adults and children, tend to cause juvenile delinquency * * * and breed crime, rackets and gangsterism', that they 'are instruments for gambling in their actual operation and use', that they are 'consistently and widely' so used in the city, that many of the places where they are commonly located are 'frequented by' and 'readily accessible to children' and 'in the vicinity of schools', that 'in many instances children have squandered lunch money, carfare and earnings needed to supplement the family income on such devices, and have even committed thefts to obtain money with which to play such devices' and that there are other serious consequences affecting crime in the community that flow from such gaming devices.
The legislation adopted by the municipality is required to be reasonably related to a proper governmental purpose, here the prevention of evils associated with gambling. To reinforce the presumption that the regulation is valid (Nettleton Co. v. Diamond, 27 N.Y.2d 182, 193, 315 N.Y.S.2d 625, 632, 264 N.E.2d 118, 123) we have an expressed legislative judgment that there is a strong relationship between gambling and the evils that attend it, on the one hand, and pinball machines, on the other. We cannot say this judgment is...
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