New York State Club Ass'n, Inc. v. City of New York

• Decision Date: 17 February 1987
• Citation: 505 N.E.2d 915,513 N.Y.S.2d 349,69 N.Y.2d 211
• Parties: , 505 N.E.2d 915, 55 USLW 2471 NEW YORK STATE CLUB ASSOCIATION, INC., Appellant, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 349

513 N.Y.S.2d 349

69 N.Y.2d 211, 505 N.E.2d 915, 55 USLW 2471

NEW YORK STATE CLUB ASSOCIATION, INC., Appellant, v. CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

Feb. 17, 1987.

Angelo T. Cometa, Louis J. Lefkowitz, Alan Mansfield and Debra A. Roth, New York City, for appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel (Patricia A. O'Malley, Leonard Koerner and Caryn M. Hirshleifer, New York City, of counsel), for respondents.

Robert Abrams, Atty. Gen. (O. Peter Sherwood, Albany, Suzanne M. Lynn, Elvia Rosales Arriola and Margarita Rosa, New York City, of counsel), for the State of N.Y. and another, amici curiae.

Judith I. Avner, Beverly Gross and Lynn Hecht Schafran, New York City, for Now Legal Defense and Educ. Fund and others, amici curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Sensitive to the reality that business is often conducted and professional contacts initiated and renewed in private clubs, the City of New York in 1984 adopted Local Law No. 63. The law is intended to prohibit discrimination in those clubs which, in essence, provide benefits to business entities and to persons other than their own members, thereby assuming a sufficient public character that they should forfeit the "distinctly private" exemption of the City's Human Rights Law. ¹ Today, we uphold Local Law No. 63 as a valid and constitutional exercise of the police power of the City of New York.

The New York City Human Rights Law (Administrative Code of City of New York tit. 8) forbids invidious discrimination in "place[s] of public accommodation, resort or amusemen (Administrative Code § 8-107[2] ). It excludes from its definition of "public accommodation" "any institution, club or place of accommodation which * * * is in its nature distinctly private" (Administrative Code § 8-102[9] ). As it originally read, the City Human Rights Law did not amplify what is meant by the term "distinctly private". On October 9, 1984, the City Council enacted Local Law No. 63, which states that a club "shall not be considered in its nature distinctly private if it [1] has more than four hundred members, [2] provides regular meal service, and [3] regularly receives payment for dues, fees, use of space, facilities, services, meals or beverages directly or indirectly from or on behalf of nonmembers for the furtherance of trade or business" (Local Laws, 1984, No. 63 of City of New York, amending Administrative Code § 8-102[9] ).

The need for this legislation, according to the extensive findings of the City Council, was to realize the City's "compelling interest in providing its citizens * * * regardless of race, creed, color, national origin or sex * * * a fair and equal opportunity to participate in the business and professional life of the city". The City Council found that business activity pervades clubs which have more than 400 members and regularly provide meals during which business is conducted. The Council further recognized that employers often pay the dues and expenses of their employees because the activities at the clubs help to develop the employers' own business. In these circumstances, the Council concluded, denial of access to club facilities constitutes a significant barrier to the professional advancement of women and minorities since business transactions are often conducted in such clubs, and personal contacts valuable for business purposes, employment and professional advancement are formed.

Immediately after the Mayor signed Local Law No. 63, plaintiff New York State Club Association, Inc., a consortium of some 125 private clubs--many of which, according to plaintiff's affidavit, "intentionally have been organized along national origin, religious, ethnic and gender lines"--commenced this action against various City defendants for a judgment declaring Local Law No. 63 unconstitutional.

Plaintiff's primary contention on this appeal is that Local Law No. 63 violates the "home rule" provision of the New York State Constitution (art. IX, § 2[c] ) because it is inconsistent with the State Human Rights Law (Executive Law § 290 et seq.), as construed by this court, and, therefore, constitutes an invalid exercise of the City's police power.

I.

A.

The constitutional home rule provision confers broad police power upon local government relating to the welfare of its citizens ² (see, People v. De Jesus, 54 N.Y.2d 465, 468, 446 N.Y.S.2d 207, 430 N.E.2d 1260). However, it places two firm restrictions on their use: (1) the local government (here, the City of New York) may not exercise its police power by adopting a local law inconsistent with constitutional or general law; and (2) the City may not exercise its police power when the Legislature has restricted such an exercise by preempting the area of regulation (Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d 99, 105, 468 N.Y.S.2d 596, 456 N.E.2d 487; People v. Cook, 34 N.Y.2d 100, 105-106, 356 N.Y.S.2d 259, 312 N.E.2d 452). The legislative intent to preempt need not be express. It is enough that the Legislature has impliedly evinced its desire to do so and that desire may be inferred from a declaration of State policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area.

Similarly, with respect to inconsistency, we have stated that there need not be an express conflict between State and local laws to render a local law invalid (Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d, at p. 108, 468 N.Y.S.2d 596, 456 N.E.2d 487, supra ). Rather, inconsistency "has been found where local laws prohibit what would have been permissible under State law or impose 'prerequisite "additional restrictions" ' on rights under State law, so as to inhibit the operation of the State's general laws" (id., quoting F.T.B. Realty Corp. v. Goodman, 300 N.Y. 140, 147-148, 89 N.E.2d 865 [citations omitted] ).

The issues have been narrowed by the parties with the plaintiff having made two concessions. First, plaintiff does not question the City's underlying authority to exercise the police power it possesses in the area of human rights (cf. Wholesale Laundry Bd. v. City of New York, 17 A.D.2d 327, 328-329, 234 N.Y.S.2d 862, affd. 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623 [local law challenged on grounds of lack of home rule authority and as inconsistent] ). Also important, plaintiff acknowledges on this appeal that the State has not preempted the field of antidiscrimination legislation by enacting the human rights provisions of the Executive Law (§ 290 et seq.). Having made these concessions--especially the latter--plaintiff would have us attach no legal significance to them and seeks to focus instead on the purported inconsistency of Local Law No. 63. A finding of inconsistency alone would require invalidation of Local Law No. 63, but in this case the distinction between preemption and inconsistency plaintiff urges is not so neat. For "these two [alleged] infirmities are often interrelated" (Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d at p. 105, 468 N.Y.S.2d 596, 456 N.E.2d 487, supra; see also, Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 683, 435 N.Y.S.2d 966, 417 N.E.2d 78).

We turn, then, to an examination of the State statutory scheme, there being no serious question that the City may indeed regulate in this area so long as the regulation is consistent.

B.

The State Human Rights Law begins with the declaration that"[i]t shall be deemed an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state concerning civil rights" (Executive Law § 290[2] ). The State statute forbids certain invidious discrimination by "any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof" (Executive Law § 296[2][a] ). It defines "place of public accommodation" "inclusively and illustratively, not specifically" (Matter of United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 409, 465 N.Y.S.2d 871, 452 N.E.2d 1199, rearg. dismissed 60 N.Y.2d 682, 702, 468 N.Y.S.2d 107, 455 N.E.2d 666), setting forth an extensive list of examples of facilities that fall within the ambit of the statute (Executive Law § 292[9] ). Notably, in language identical to that employed in the City's Human Rights Law, the State law excludes from the definition of "public accommodation" "any institution, club or place of accommodation which is in its nature distinctly private" (Executive Law § 292[9] ). Unlike the City counterpart, the State Human Rights Law contains no legislative definition of the term "distinctly private".

In the face of this omission and in the absence of any claimed or apparent legislative design to preempt the area of antidiscrimination legislation, the precise question presented is whether the police power to govern with respect to public welfare, health and peace--inherent in the State, yet also delegated to municipalities under the Constitution's home rule provision--permits the City to define for itself when a club loses its "distinctly private" nature.

People v. Judiz, 38 N.Y.2d 529, 381 N.Y.S.2d 467, 344 N.E.2d 399, presented a comparable problem. A provision of the State's Penal Law (§ 265.01[2] ) prohibited the possession of, among other things, any imitation pistol "with intent to use the same unlawfully against another" (id., at p. 531, 381 N.Y.S.2d 467, 344 N.E.2d 399). We upheld the defendant's conviction of possession of a toy pistol painted to...