New York Skyline, Inc. v. City of New York

• Decision Date: 23 February 2012
• Citation: 2012 N.Y. Slip Op. 01379,939 N.Y.S.2d 42,94 A.D.3d 23
• Parties: In re NEW YORK SKYLINE, INC., et al., Petitioners–Appellants, v. CITY OF NEW YORK, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01379

939 N.Y.S.2d 42

94 A.D.3d 23

In re NEW YORK SKYLINE, INC., et al., Petitioners–Appellants,

v.CITY OF NEW YORK, et al., Respondents–Respondents.

Supreme Court, Appellate Division, First Department, New York.

Feb. 23, 2012.

Petitioners appeal from a judgment of the Supreme Court, New York County (Donna Mills, J.), entered October 17, 2011, which denied the petition and dismissed the proceeding.Gibson, Dunn & Crutcher LLP, New York (Randy M. Mastro, Jennifer H. Rearden, Akiva Shapiro, Seema Gupta and Matthew W. Knox of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman, Francis F. Caputo, Mark Muschenheim and Melanie V, Sadok of counsel), for respondents.

RICHARD T. ANDRIAS, J.P., DAVID B. SAXE, ROLANDO T. ACOSTA, HELEN E. FREEDMAN, ROSALYN H. RICHTER, JJ.

RICHTER, J.

In this appeal, we are asked to decide whether the sale on public sidewalks of admission tickets to New York Skyride, a simulated helicopter trip around New York City, requires a general vendor license under § 20–452 and § 20–453 of the Administrative Code of the City of New York. We hold that because neither the Skyride experience nor the admission tickets constitutes goods or services, a general vendor license is not required.

Petitioner New York Skyline, Inc. (Skyline) is an entertainment company that created and manages the New York Skyride, a simulated helicopter experience. The Skyride experience, which takes place on the second floor of the Empire State Building, includes a brief lecture about the Empire State Building followed by a 15–minute film narrated by actor Kevin Bacon. The film, which features music and special effects, takes visitors on a virtual helicopter ride over New York City and its landmarks.

Skyline has been operating Skyride since 1994, and currently employs 110 people, including 40 ticket agents; the company also independently contracts with another 27 ticket agents. Since 2003, these agents have marketed and sold tickets to Skyride on public sidewalks near the Empire State Building. The agents process the sales using small handheld devices that charge the customers' credit cards and print the tickets. Approximately 60% of Skyline's ticket sales comes from selling tickets on the sidewalks.

In April 2011, respondent New York City Police Department (NYPD) started issuing summonses to Skyline's agents for selling tickets on the public sidewalks without a general vendor license, purportedly in violation of § 20–453 of the Administrative Code. General vendor licenses are administered by the New York City Department of Consumer Affairs (DCA). According to the DCA website, the maximum number of licenses issued to non-veterans is limited to 853, and the waiting list is currently closed.¹ Thus, if the statute is enforced against the ticket agents, Skyline would be unable to obtain a vending license. Skyline maintains that if it is required to permanently suspend street sales, it will be forced out of business.

At first, NYPD issued summonses that were returnable at the offices of respondent New York City Environmental Control Board (ECB), the agency that adjudicates violations of the general vending laws. In June 2011, NYPD escalated its enforcement strategy, and began arresting alleged violators, requiring them to appear in criminal court. Skyline alleges that 14 notices of violations or summonses have been issued and six ticket agents, including petitioner Calaif Parks, have been arrested for selling tickets without a general vendor license.

Petitioners commenced an article 78 proceeding against respondents City of New York, NYPD, ECB and various City officials seeking to enjoin them from enforcing the general vending statutes against Skyline's ticket agents. Petitioners asserted causes of action alleging that: (1) Administrative Code § 20–452 and § 20–453, which require a “general vendor” to be licensed, do not apply to Skyline's ticket agents because they are not selling “goods or services”; (2) the enforcement of the general vending statutes against the ticket agents constitutes an impermissible limitation on protected expressive activity and thus violates the free speech protections of the State and Federal Constitutions; and (3) the City's and NYPD's enforcement activity is the result of improper influence by Skyline's landlord, and thus constitutes an abuse of discretion.² The petition seeks, inter alia, a judgment declaring that: (1) the ticket agents' sales of admission tickets to Skyride on the public sidewalks do not qualify them as general vendors under Administrative Code § 20–452(b); and (2) the ticket agents do not require a general vendor license under Administrative Code § 20–453.

In a judgment entered October 17, 2011, Supreme Court denied the petition and dismissed the proceeding. The court found that respondents' determination that Skyline's agents require a general vendor license was rational, and that the sale of tickets to Skyride is the type of conduct that could be regulated by the general vending laws. The court also rejected petitioners' constitutional and improper influence claims. We now reverse and conclude that the sale of admission tickets to Skyride on a public sidewalk does not require a general vendor license under the Administrative Code.

Administrative Code § 20–453 provides, in relevant part, that “[i]t shall be unlawful for any individual to act as a general vendor without having first obtained a license.” ³ A “general vendor” is defined as “[a] person who hawks, peddles, sells, leases or offers to sell or lease, at retail, goods or services ... in a public space” (Administrative Code § 20–452[b] [emphasis added] ). Thus, the statute makes clear that a vendor does not need a license unless the products being sold are either “goods” or “services.”

Respondents do not argue that the Skyline admission tickets themselves constitute “goods” that come within reach of the statute. Indeed, any such argument would be unavailing. An admission ticket to an entertainment event is not a commodity in its own right, but is merely a license to enter the event ( see Aaron v. Ward, 203 N.Y. 351, 355, 96 N.E. 736 [1911] [ticket for admission to a place of public amusement is a license]; Impastato v. Hellman Enters., 147 A.D.2d 788, 789, 537 N.Y.S.2d 659 [1989] [same]; People ex rel. Zvirin v. Roxy Theatre, Inc., 8 N.Y.S.2d 92, 98 [Magistrates' Ct.1938] [admission tickets to a theater are not merchandise] ).

Instead, respondents argue that Skyline's agents are selling a “service,” namely the entertainment provided by the Skyride experience. Thus, the critical inquiry here is whether the Skyride experience is a “service.” When interpreting a statute, it is fundamental that a court “should attempt to effectuate the intent of the Legislature” ( Majewski v. Broadalbin–Perth Cent. School Dist., 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 [1998] [internal quotation marks omitted] ). Since “the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” ( id.; see Bluebird Partners v. First Fid. Bank, 97 N.Y.2d 456, 460, 741 N.Y.S.2d 181, 767 N.E.2d 672 [2002] [“in all cases requiring statutory construction, we begin with an examination of the statute's plain meaning”] ).

Because the statute does not define the term “service,” it should be construed in accordance with its common, everyday meaning ( see Matter of Manhattan Cable TV Servs., Div. of Sterling Info. Servs. v. Freyberg, 49 N.Y.2d 868, 869, 427 N.Y.S.2d 933, 405 N.E.2d 178 [1980]; see also McKinney's Cons. Laws of NY, Book 1, Statutes § 94, § 232). As a matter of common parlance, one would not say that the Skyride experience is a “service” (see Roxy Theatre, 8 N.Y.S.2d at 98 [“A theater does not ... render service”] ). For instance, a sports fan does not refer to a ball game as being a “service.” Similarly, music lovers do not talk about the “service” they received when listening to a concert. Nor do theater goers refer to getting a “service” when they attend a play or musical.

In arguing that Skyline provides a “service,” respondents present a strained and unnatural construction of that term. When one thinks of a “service,” as that word is ordinarily used, things like haircuts, home repair, house cleaning and car washes come to mind. Skyride is more appropriately characterized as a form of entertainment. “Entertainment” is defined as, inter alia, “a public performance designed to divert or amuse” (Webster's Third New International Dictionary, Unabridged [2002] ). That is precisely what Skyride is—visitors are treated to a film featuring music, special effects...