Nik-O-Lok Co. v. Carey

• Decision Date: 03 June 1976
• Docket Number: NIK-O-LOK
• Citation: 52 A.D.2d 375,384 N.Y.S.2d 211
• Parties: TheCOMPANY et al., Appellants, v. Hugh L. CAREY, as Governor of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 211

384 N.Y.S.2d 211

52 A.D.2d 375

The NIK-O-LOK COMPANY et al., Appellants, v. Hugh L. CAREY, as Governor of the State of New York, et al.,

Respondents.

Supreme Court, Appellate Division, Third Department.

June 3, 1976.

DeGraff, Foy, Conway & Holt-Harris, Albany (John T. DeGraff, Albany, of counsel), for appellants.

Louis J. Lefkowitz, Atty. Gen. (Lawrence L. Doolittle and Ruth Kessler Toch, Albany, of counsel), for respondents.

Before KOREMAN, P.J., and SWEENEY, KANE, MAHONEY and LARKIN, JJ.

KANE, Justice.

In July of 1975, the Legislature passed a bill, subsequently signed into law by the Governor on August 6, 1975 (L.1975, ch. 666), which provided as follows:

Section 1. Article twenty-six of the general business law is hereby amended by adding thereto a new section, to be section three hundred ninety-nine-a, to read as follows:

§ 399--a. Pay toilets; prohibition

1. On and after September first, nineteen hundred seventy-five, no owner, lessee or other occupant of any real property or any other person, copartnership or corporation shall opera or permit to be

operated pay toilet facilities upon such real property.

2. A violation of the provisions of this section shall constitute a violation.

§ 2. This act shall take effect September first, nineteen hundred seventy-five.

Plaintiffs are corporations that manufacture coin-operated locks, hinges and related equipment, suitable for installation on doors, which they lease to the owners or tenants of real property who provide toilet facilities to their customers or the general public. In this action they sought an injunction and a declaration that the foregoing statute is unconstitutional and void, but Special Term has granted summary judgment declaring it valid. This appeal ensued and a preliminary injunction remains in effect pending its resolution.

Plaintiffs' constitutional attack is based upon the contentions that this enactment violates basis concepts of due process and equal protection of the law under both the State and Federal Constitutions. The due process arguments are that (1) the statute is void for vagueness, (2) that it is an invalid exercise of the police power, and (3) that it deprives plaintiffs of their property without due process of law. Before considering the merits of this controversy, however, we must first resolve the question of plaintiffs' standing to maintain the full breadth of their action. They clearly have standing, based upon their existing leases, to assert most of the arguments presented, but it seems equally plain to us that they are not so directly affected by the statute that all of the issues they attempt to raise should be entertained at the present time. Nowhere does their complaint allege the occupancy of any real property where they operate anything which could remotely be considered a pay toilet facility. Thus, there is no reasonable possibility that plaintiffs are subject to the penalty feature of the statute and, accordingly, we will not pass upon their obscurely presented equal protection argument, or their assertion that the penalty language of the statute is unconstitutionally vague, even if we believed such contentions possessed merit (Matter of Taylor v. Sise, 33 N.Y.2d 357, 362 352 N.Y.S.2d 924, 927, 308 N.E.2d 442, 445).

As to the remaining due process arguments, plaintiffs first urge that the term 'pay toilet facilities' is so ambiguous that it cannot be determined what the statute prohibits. They suggest that questions are raised concerning the future propriety of exacting a charge for towels, soap, toilet paper, or other supplies, as well as tips or fees for attendants, dressing booths, and related services. In addition, they ask whether the term is so broad that it means gas stations or other commercial establishments must allow completely unrestricted use of available toilets, and submit it might also disallow the practice of charging tenants rent, directly or indirectly, for the use of key operated bathroom facilities, maintained by the owner, which are commonly found in office buildings and like structures.

In answer, we note that it is not this court's function to question the wisdom of any particular legislative act, or to comment on the quality of its draftsmanship. We must adhere to established rules of construction and tests for constitutionality. In this setting, due process requires that a statute inform those subject to its terms of the nature of the prohibited conduct and what is required of them and, while it must do so unequivocally, the language used may be expressed in ordinary terms by words of common usage (People v. Byron, 17 N.Y.2d 64, 268 N.Y.S.2d 24, 215 N.E.2d 345). Impossible standards are not required, and lack of precision is permissible so long as the prohibited practice is one commonly understood (Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498). In our view, it is permissible to conclude that one commonly understands a 'pay toilet' to mean, in its most literal sense, an immediate charge for the singular use of a closet for the discharge of human wastes. While the term 'pay toilet facilities' can perhaps be said to contemplate a somewhat broader field of services for which immediate payment is required thereby inviting future litigation over its scope, we nevertheless conclude that these plaintiffs have not overcome the strong presumption of constitutionality...