Bobka v. Town of Huntington

• Decision Date: 19 September 1988
• Citation: 143 A.D.2d 381,532 N.Y.S.2d 561
• Parties: Christian BOBKA, et al., Appellants, v. The TOWN OF HUNTINGTON, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 561

532 N.Y.S.2d 561

143 A.D.2d 381

Christian BOBKA, et al., Appellants, v. The TOWN OF HUNTINGTON, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Sept. 19, 1988.

Raskin, Haas & Poli, Huntington (John G. Poli III, of counsel), for appellants.

Herbert A. Smith, Jr., Town Atty., Commack (Patrick A. Sweeney, of counsel), for respondents.

Before MANGANO, J.P., and BRACKEN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action for a judgment declaring chapter 149 of the Code of the Town of Huntington to be unconstitutional, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered October 27, 1986, which declared that chapter of the code to be constitutional and thereupon dismissed the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs are residents of the Town of Huntington who earn their living as peddlers of cut flowers. They sell their wares from pushcarts which, together with identifying signs, they place on the side of the road to attract passing motorists. The interested customers have to drive their vehicles off the road, stop on the shoulder to make their purchases and then re-enter the stream of vehicular traffic on the particular road or highway.

Chapter 149 of the Code of the Town of Huntington, which is entitled "Peddlers and Solicitors", has three stated purposes: (1) to protect the peace of citizens in their homes, (2) to protect consumers against fraud, and (3) to prevent congestion and unsafe conditions in the streets. The ordinance provides in part as follows:

"149-11. Use of Streets.

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B. No peddler or solicitor, including those otherwise exempt from this chapter, shall permit any cart, wagon or vehicle owned, operated or under their control to stand or remain stationary for the purpose of soliciting or selling or offering for sale therefrom or from any bag or container, any goods, wares or merchandise of any kind upon or within the lines of the following prohibited streets, and service roads thereof, or within a distance of two hundred fifty (250) feet of any intersecting prohibited street"

Approximately 36 roads are classified as "prohibited streets", including State Highway Route numbers 25, 25A and 110.

The plaintiffs commenced this declaratory judgment action to challenge the constitutionality of the "prohibited streets" provision in the ordinance. On April 22, 1986, in lieu of a trial, the parties entered into a stipulation of facts including the submission of various documents relating to the history and evolution of the challenged ordinance. The terms of the stipulation included the following:

"The majority of streets on the list of prohibited streets in Chapter 149 of the Code of the Town of Huntington are heavily trafficked. The volume of traffic varies by time of day and sections of roadway. There are also some streets on the list not heavily trafficked.

"A. The shoulder of a road is part of the roadway.

"B. The time of day is a factor that can be referred by counsel in brief and argument.

"C. Traffic at varied points on each street may be shown to a lesser degree at certain locations".

The submitted documents demonstrate that since the ordinance was originally enacted, new roads have been added to the list of prohibited streets solely upon the request of a town resident without an investigation by the Town Board, except in the case of three roads.

The Supreme Court, Suffolk County, dismissed the complaint, finding that the plaintiffs failed to overcome the presumption of constitutionality that attached to the ordinance. We agree.

In challenging the constitutionality of Chapter 149, the plaintiffs face a heavy burden. Statutes are presumed to be constitutional, and that presumption can only be rebutted by proof beyond a reasonable doubt ( see, Maresca v. Cuomo, 64 N.Y.2d 242, 250, 485 N.Y.S.2d 724, 475 N.E.2d 95, lv. dismissed 474 U.S. 802, 106 S.Ct. 34, 88 L.Ed.2d 28; Hotel Dorset Co. v. Trust for Cultural Resources of City of N.Y., 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284; Montgomery v. Daniels, 38 N.Y.2d 41, 54, 378 N.Y.S.2d 1, 340 N.E.2d 444). A local ordinance is cloaked with the same strong presumption of constitutionality ( Town of Huntington v. Park Shore Country Day Camp of Dix Hills, 47 N.Y.2d 61, 65, 416 N.Y.S.2d 774, 390 N.E.2d 282 rearg. denied 47 N.Y.2d 1012, 420 N.Y.S.2d 1025, 394 N.E.2d 308; Marcus Assoc. v. Town of Huntington, 45 N.Y.2d 501, 505, 410 N.Y.S.2d 546, 382 N.E.2d 1323). In Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 390 N.Y.S.2d 827, 359 N.E.2d 337 the rule was stated as follows:

"The exceedingly strong presumption of constitutionality applies not only to enactments of the Legislature but to ordinances of municipalities as well. While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the ground of unconstitutionality" ( Lighthouse Shores v. Town of Islip, supra, at 11, 390 N.Y.S.2d 827, 359 N.E.2d 337).

Judicial review of a challenged statute or ordinance is limited to determining whether, "any state of facts, known or to be assumed, justify the law" ( Matter of Malpica-Orsini, 36 N.Y.2d 568, 571, 370 N.Y.S.2d 511, 331 N.E.2d 486). Thus, it need only be...