Monarski v. Alexandrides

• Decision Date: 28 December 1974
• Citation: 80 Misc.2d 260,362 N.Y.S.2d 976
• Parties: Veronica MONARSKI et al., Plaintiffs, v. Mary ALEXANDRIDES, as Commissioner of Licenses of the City of Syracuse, New York, and City of Syracuse, New York, Defendants.
• Court: New York Supreme Court

Page 976

362 N.Y.S.2d 976

80 Misc.2d 260

Veronica MONARSKI et al., Plaintiffs, v. Mary ALEXANDRIDES, as Commissioner of Licenses of the City

of Syracuse, New York, and City of Syracuse, New

York, Defendants.

Supreme Court, Onondaga County.

Dec. 28, 1974.

Donald J. Sullivan, Syracuse, for plaintiffs.

Mathilde C. Bersani, Corp. Counsel, Syracuse, for defendants.

DECISION

THOMAS ALOI, Justice.

Defendant moves for an order pursuant to CPLR Section 6314 to vacate and set aside an order granting a preliminary injunction against the defendants upon the ground that pursuant to the stipulation entered into by attorneys for both parties, defendants could reopen and reargue the motion for said injunction upon the expiration of three (3) months in the event that the litigation had not by that time been settled or otherwise terminated. Plaintiffs move pursuant to CPLR Section 3212 for an order granting summary judgment, declaring that Article 8 of the Revised General Ordinances of the City of Syracuse (hereinafter referred to as Article 8) is unconstitutional and for a permanent injunction against the enforcement of Article 8.

The pertinent facts, briefly stated, indicate that plaintiffs and the class of persons of which plaintiffs are representative, are persons conducting dance schools and classes within the City of Syracuse and therefore fall within the scope of Article 8's mandates. The Article purports to require licenses costing $150.00, of persons conducting dance schools or classes within the City of Syracuse. This action was commenced by the service of a summons on defendants on February 15, 1974. A notice of motion for a preliminary injunction was served on defendants on February 21, 1974, and subsequently granted by Justice Robert Lynch on March 5, 1974, enjoining defendants from enforcing said Article 8. Incorporated within this order was the stipulation, agreed to by both parties, that if this action was not resolved within three (3) months, the defendants could reopen and reargue the said motion. No action dispositive of this case has transpired since the stipulation was signed and therefore defendants have requested that the preliminary injunction be vacated and the original motion be reargued. Plaintiffs have served defendants with a complaint alleging that Article 8 is unconstitutional on its face and as applied. The gravamen of their complaint states that the Article deprives them of due process and equal protection of the law; is in many critical areas hopelessly vague concerning what action in permitted or forbidden and totally unclear concerning what people fall within the classes governed by the statute; grants to the Chief of Police unlimited authority to unilaterally legislate rules and substantial discretion in enforcing or waiving the requirement of a license, without any guidelines or criterion; is being used as a pretext to enforce other valid statutes, i.e. fire codes and health codes; and has an arbitrary and unreasonable cost of $150.00, which bears no rational relationship to the cost of supervising the premises and is confiscatory in nature. Defendant has generally denied the aforementioned allegations and has asked for judgment dismissing plaintiffs' complaint.

It has long become axiomatic that municipal ordinances must conform with constitutional requirements and that an ordinance that violates the constitution of the United States or of the state is void. Cowan v. Buffalo, 247 App.Div. 591, 288 N.Y.S.2d 239. A municipality cannot use its delegated police power as a mere pretext for unconstitutionally depriving an individual of his rights, Cowan v. Buffalo, supra. In determining the constitutionality of a statute or ordinance, form is overlooked and substance and practical operation of the statute or ordinance are considered. Thus, the ordinances' operative effect, rather than its theoretical rationale, serves as the focus for judicial scrutiny.

This Court recognizes the longstanding judicial propensity for upholding the constitutionality of municipal ordinances and statutes. Courts will not declare an ordinance unconstitutional merely because they think it imprudent or inexpedient, or because it operates harshly upon those persons it affects. Every presumption of constitutionality must be given to an ordinance if any rational consideration supports its enactment. This presumption reflects this Court's belief that the local legislative body intended not to violate the constitution, but to enact a valid ordinance within the scope of its constitutional powers. People v. Leshaw, 63 Misc.2d 364, 316 N.Y.S.2d 704; Main Private Car Service, Inc. v. Mayor of Yonkers, 71 Misc.2d 417, 336 N.Y.S.2d 207. If the constitutional questions raised are fairly debatable, courts must declare the ordinance constitutional, as they cannot and must not substitute their judgment for that of the local legislative body. Buffalo v. Hawks, 226 App.Div. 480, 236 N.Y.S. 89. This Court believes to do so would be a usurpation of a longstanding legislative function. However, this Court stands totally prepared to declare an ordinance void upon constitutional grounds if it plainly contravenes some provision of the constitution (Nebbia v. People, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940).

Objections to the constitutionality of an ordinance must be specific. Merely relying upon the assertion that an ordinance is 'void for vagueness' without competent evidence is insufficient to sustain this allegation. With respect to ordinances passed in the exercise of the police power, they cannot be declared unconstitutional unless their provisions are clearly arbitrary and unreasonable and have no relationship to the public health, safety, morals or public welfare. People v. Shy, 70 Misc.2d 92, 332 N.Y.S.2d 561. The test for making this determination is whether the ordinance is a bona fide exercise of the police power or an arbitrary interference with personal rights under the guise of an exercise of that power, Jell-O Co. v. Brown, D.C., 3 F.Supp. 132.

A leading treatise in this area states that the 'requisites pertaining to ordinances generally govern licensing ordinances. Accordingly, licensing ordinances must be definite and certain, reasonable, uniform...