People v. Goodman

• Decision Date: 01 November 1972
• Citation: 338 N.Y.S.2d 97,290 N.E.2d 139,31 N.Y.2d 262
• Parties: , 290 N.E.2d 139 The PEOPLE of the State of New York, Respondent, v. Milton GOODMAN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 97

338 N.Y.S.2d 97

31 N.Y.2d 262, 290 N.E.2d 139

The PEOPLE of the State of New York, Respondent, v. Milton GOODMAN, Appellant.

Court of Appeals of New York.

Nov. 1, 1972.

Sherwood A. Salvan, New York City, for appellant.

George J. Aspland, Dist. Atty. (J. Stewart McLaughlin, Bay Shore, of counsel), for respondent.

JASEN, Judge.

At issue on this appeal is the validity of a 1967 village ordinance which bans commercial signs greater than four square feet in area.

The defendant Goodman owns and operates a drugstore in the Village of Ocean Beach, Suffolk County. The village, located on the barrier beach known as Fire Island, within the Fire Island National Seashore, encompasses an area of about 1,800 feet from ocean to bay and is accessible only by ferry boat. Ocean Beach has a summertime population of up to 10,000 persons, and a year-round population of less than 200. The village business block, located near the bay, contains about 28 business establishments. Goodman's drugstore, the only drugstore in Ocean Beach, is located in this business district. The drugstore consists of two sections--the pharmacy or prescription section, and a section devoted to the display and sale of a variety of nondrug commodities. Mr. Goodman, a registered pharmacist, occassionally administers first-aid treatment to patrons.

The ordinance in question was enacted by the Village Board in 1967 to conform to regulations (Code of Fed.Reg., tit. 36, § 28.4, subd. (e)) promulgated by the Secretary of the Interiro under authority of the Fire Island National Seashore Act. (U.S.Code, tit. 16, § 459e--2.) The ordinance, taken verbatim from the Secretary of Interior's regulations, provides in pertinent part that: 'Signs within the incorporated Village of Ocean Beach shall not be illuminated and shall be limited in size to 1 square foot in area * * * This size limitation shall not apply to existing commercial or business uses for which the signs may not exceed 4 square feet in area and may be placed only on the property on which the commercial or business use occurs. Nonconforming signs may continue such nonconformity until they are destroyed, structurally altered, reconstructed, changed or moved, but the period of such nonconformity may not exceed two years from the date of the enactment of this ordinance.' (Village of Ocean Beach Ordinances, art. II, § 4 (1967).)

Penal sanctions are contained in section 9 of article II of this ordinance, which provides: 'Any person violating any of the provisions of this Article shall be liable to a penalty not exceeding Two Hundred Fifty Dollars ($250.00) for each offense. In addition thereto, such violation shall constitute disorderly conduct and every person violating the same shall be a disorderly person, and upon conviction therefor, shall be punished by a fine of not more than Two Hundred Fifty Dollars ($250.00) for each and every offense.'

Goodman maintained four signs on his drugstore, each sign exceeding four square feet in area. Charged with a violation of section 4 of article II of the ordinances, he was found guilty after a trial and fined $100.

The defendant asserts that in providing pharmacological services and administering first aid on occasion, his drugstore renders a service in the public interest, and that, as applied to him, the ordinance contravenes health and safety considerations and exceeds the village's authority under the police power.

We conclude that this ordinance represents a valid and permissible exercise of the police power and that the defendant's conviction thereunder was proper and should be affirmed.

At the outset we note that the State and its political subdivisions may regulate the erection and maintenance of outdoor advertising under the police power (see, e.g., Railway Express v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed.2d 533; New York State Thruway Auth. v. Ashley Motor Ct.,10 N.Y.2d 151, 218 N.Y.S.2d 640, 176 N.E.2d 566; People v. National White Plains Corp., 299 N.Y. 694, 87 N.E.2d 72; People v. Arlen Serv. Stas.,284 N.Y. 340, 31 N.E.2d 184; 2 N.Y.Jur., Advertising and Advertisements, § 7; 7 McQuillin, Municipal Corporations, §§ 24.380--24.388; Ann., Billboards-Municipal Regulation, 58 ALR2d 1314), and that villages are empowered by statute to regualte the maintenance of advertising media near streets and in public places (Village Law, § 89, subd. 47; 2 N.Y.Jur., Supra) and to adopt ordinances for general purposes consistent with the exercise of the police power (Village Law, § 89, subd. 59).

It is now settled that aesthetics is a valid subject of legislative concern and that reasonable legislation designed to promote the governmental interest in preserving the appearance of the community represents a valid and permissible exercise of the police power. (People v. Stover, 12 N.Y.2d 462, 240 N.Y.S.2d 734, 191 N.E.2d 272.) Under the police power, billboards and signs may be regulated for aesthetic purposes. (Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749; cf. Matter of Mid-State Adv. Corp. v. Bond, 274 N.Y. 82, 85, 8 N.E.2d 286, 287 (Finch, J., dissenting), overruled 19 N.Y.2d 263, 268, 279 N.Y.S.2d 22, 25, 225 N.E.2d 749, 752; People v. Lou Bern Broadway, 68 Misc.2d 112, 325 N.Y.S.2d 806; Town of Huntington v. Estate of Schwartz, 63 Misc.2d 836, 313 N.Y.S.2d 918; Village of Larchmont v. Sutton, 30 Misc.2d 245, 217 N.Y.S.2d 929 (Hopkins, J.); Preferred Tires v. Village of Hempstead, 173 Misc. 1017, 19 N.Y.S.2d 374; Matter of Dr. Bloom Dentist, Inc. v. Cruise, 259 N.Y. 358, 364, 182 N.E. 16, 17.)

In the case before us, we deal with an ordinance concededly motivated by aesthetic considerations. Of course, as with every enactment under the police power, this measure must satisfy the test of reasonableness. (Matter of Tyson, Inc., v. Tyler, 24 N.Y.2d 671, 301 N.Y.S.2d 602, 249 N.E.2d 453; People v. Bunis, 9 N.Y.2d 1, 210 N.Y.S.2d 505, 172 N.E.2d 273; People v. Munoz, 9 N.Y.2d 51, 211 N.Y.S.2d 146, 172 N.E.2d 535; Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 163 N.Y.S.2d 585, 143 N.E.2d 329; Good Humor Corp. v. City of New York, 290 N.Y. 312, 49 N.E.2d 153; 9 N.Y.Jur., Constitutional Law, § 176.) Our inquiry, therefore, is limited to determining whether, under all the circumstances, the means adopted in this ordinance are reasonably related to the community policy sought to be implemented, and are not unduly oppressive. (Matter of Tyson, Inc. v. Tyler, 24 N.Y.2d 671, 310 N.Y.S.2d 602, 249 N.E.2d 453, Supra; People v. Bunis, 9 N.Y.2d 1, 210 N.Y.S.2d 505, 172 N.E.2d 273, Supra; People v. Munoz, 9 N.Y.2d 51, 211 N.Y.S.2d 146, 172 N.E.2d 535, Supra; Trio Distr. Corp. v. City of Albany, 2 N.Y.2d 690, 163 N.Y.S.2d 585, 143 N.E.2d 329, Supra; 9 N.Y.Jur., Constitutional Law, §§ 176--179, 181.)

In assessing the reasonableness of such legislation, we may properly look to the setting of the regulating community. (Matter of Cromwell v. Ferrier, 19 N.Y.2d 263, 272, 279 N.Y.S.2d 22, 29, 225 N.E.2d 749, 754, Supra.) To be sure, not every artistic conformity or nonconformity is within the regulatory ambit of the police power. Indeed, regulation in the name of aesthetics must bear Substantially on the economic, social and cultural patterns of the community or district. (Matter of Cromwell v. Ferrier, 19 N.Y.2d at p. 272, 279 N.Y.S.2d at p. 29, 225 N.E.2d, at p. 754.) Here, our focus is on a small summer resort community, located on a narrow belt of sand, bounded by bay and ocean, situated within the Fire Island National Seashore. In creating the Fire Island National Seashore, the Congress recognized the special cultural values and natural resources of the area and acted to conserve and preserve for future generations the relatively unspoiled and undeveloped beaches, dunes and other resources within Suffolk County. (U.S.Code, tit. 16, § 459e.) It is against this background that the local legislative body acted to regulate the display of commercial signs and to adapt their use to fit the rather unique cultural character and natural features of the area.

The defendant's argument that the ordinance is invalid because it contravenes health and safety aspects of the police power is not persuasive. He seeks to clothe his drugstore with a public interest, and urges that, as applied to him, the ordinance is invalid. However, his business is, in fact, largely a commercial enterprise and its essential character is not affected merely because, on occasion, first aid is administered there. Practically speaking, it would seem that in a genuine emergency a person in need of aid would turn to an agency such as the Ocean Beach Police Department (located across the street from the defendant's drugstore).

Clearly this is not a case where the legislative body has gone too far in the name of aesthetics. (People v. Stover, 12 N.Y.2d at p. 468, 240 N.Y.S.2d at p. 738, 191 N.E.2d at p. 275.) This ordinance has a demonstrably valid objective under the police power--that is, to promote the appearance of the community; the means employed are reasonably related to this objective, and even assuming some impact on health and safety considerations, under all the circumstances, this legislation is not arbitrary, unreasonable, or oppressive. (Cf. Town of Somers v. Camarco, 308 N.Y. 537, 127 N.E.2d 327; People v. Perretta, 253 N.Y. 305, 171 N.E. 72.) The ordinance is regulatory rather than prohibitory and expressly allows for the display of commercial signs of four square feet or less with a two-year abatement period for nonconforming signs. Additionally, there has been no showing that, because of the size limitation on commercial signs, persons in need of pharmacological services could not locate the drugstore. Nor has it been shown that people could not be referred to the drugstore by other means or that the ordinance otherwise imposes an undue hardship on the defendant. Moreover, this ordinance commands no arbitrary or capricious standard of...