People v. Island Wide Ins. Brokerage, Inc.

• Decision Date: 24 July 1998
• Parties: , 1998 N.Y. Slip Op. 98,437 The PEOPLE of the State of New York, Plaintiff, v. ISLAND WIDE INSURANCE BROKERAGE, INC., Defendant.
• Court: New York District Court

Page 860

676 N.Y.S.2d 860

177 Misc.2d 668, 1998 N.Y. Slip Op. 98,437

The PEOPLE of the State of New York, Plaintiff, v. ISLAND WIDE INSURANCE BROKERAGE, INC., Defendant.

District Court, Nassau County Fourth District.

July 24, 1998.

Mark E. Alter, Mineola, for defendant.

Gregory Giammalvo, Town Attorney of Town of Oyster Bay (Donna B. Swanson, of counsel), for plaintiff.

MICHAEL S. ALONGE, Judge.

The defendant is charged with operating an insurance business in a "D" residence district in violation of the Town Oyster Bay Code of Ordinances. It appears to be a case of first impression in that it raises the question of whether an "insurance broker" is a "professional person" within the meaning of the zoning law.

The facts are that the defendant corporation, in reality a one-man insurance broker, had its offices at 4230 Merrick Road in Massapequa for several years. He then purchased the property at 4600 Merrick Road and made extensive repairs and improvements to the building which led to a dispute with the Town over dumpsters and other problems while the construction was underway.

Sometime in late March, 1997, Town inspectors noted that a sign in a window at 4230 Merrick Road stated that the insurance company had moved to 4600 Merrick Road, which is in a "D" residential zone. The information alleges that on April 22, 1997 the defendant had an "Insurance" sign in the window of the premises and that the premises had a side entrance with a room containing what appeared to be an office set-up.

The defendant contends that, 1, an insurance broker is a professional person and thus is a permitted use in a "D" residential area; and 2, the Town failed to prove a prima facie case in that they did not prove beyond a reasonable doubt that the defendant was operating a business at the subject location on the date alleged in the information.

Section 246.135 I (1) of the Town of Oyster Bay Code lists the permitted uses in a "D" residential district: "The office of a physician, lawyer, architect, musician, teacher or professional person residing on the premises and when such use is incidental to such residence, provided, however, that such use shall be within the main dwelling and occupying not more than one-third (1/3) of the first floor area."

The defendant contends that an insurance broker is a "professional person" within the meaning of the statute.

While there appears to be no authority directly on point, the related case law and commentaries support the position that an insurance agent is not a profession entitled to have a home office in a residentially zoned area. The Code of the Town of Oyster Bay does not define "professional person," nor were any New York cases found in the context of zoning ordinances that addresses this issue.

In interpreting the Town ordinance, it seems that the Town intended to exclude insurance brokers from the permitted uses in a "D" residential district. This conclusion is drawn because in other sections of the Town code, where an insurance office is allowed, the Town explicitly listed an insurance office as a permitted use.

For example, section 246-308 of the Town code dealing with permitted uses in Residence-Office (R-O) Districts, states in pertinent part that the following uses are permitted: "The office of a physician, dentist, lawyer, architect, musician, teacher or other professional person, including real estate and insurance offices, but excluding banks ...."

This section, therefore, includes "insurance...