People v. Leshaw
| Decision Date | 15 May 1970 |
| Citation | 63 Misc.2d 364,316 N.Y.S.2d 704 |
| Parties | PEOPLE of the State of New York, Plaintiff, v. Max LESHAW and Nathan Nierel, Defendants. |
| Court | New York District Court |
Archimedes Cervera, Brentwood, for defendants.
Burton H. Mars, Town Atty., E. Islip, for the People.
These matters have been submitted for determination upon an agreed statement of facts.
The defendants are charged with selling prohibited items on Memorial Day and Independence Day in violation of Section 2, Article 409 of the Islip Town Ordinance. It is alleged in defendant Nathan Nierel's information that he while manager of the Bay Shore Farmer's Market, located in Islip Township did permit the sale of one White Bar Towel on May 30, 1969. The information in the case of defendant Max Leshaw alleges that with the intent to sell, he permitted and authorized one Elaine Levich to sell a phonograph record for $.73 on July 4, 1969 at the Bay Shore Farmer's Market in the Town of Islip. The Islip Memorial and Independence Day Ordinance prohibits all business and commercial activities except for the sale of foods, drugs, certain vehicular equipment, flowers, souvenirs and bait. The questions before the court are whether the defendants violated Section 2 of the Islip Memorial and Independence Day Ordinance and whether said section is constitutionally valid.
It is well established that legislative enactments carry a strong presumption of constitutionality, Paterson v. University of State of New York, 14 N.Y.2d 432, 252 N.Y.S.2d 452, 201 N.E.2d 27; Martin v. State Liquor Authority, 43 Misc.2d 682, 252 N.Y.S.2d 365, affirmed 15 N.Y.2d 707, 256 N.Y.S.2d 336, 204 N.E.2d 496. While this is rebuttable, unconstitutionality must be demonstrated beyond reasonable doubt. Every intendment is in favor of validity and a party alleging unconstitutionality has a heavy burden and the court will only strike down a legislative enactment as a last resort, Martin v. State Liquor Authority, supra; Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 399, 213 N.E.2d 539.
Article 409, Section 2 of the Islip Town Ordinance is very similar in wording to Section 9 of the General Business Law. Section 9 prohibits all manner of public selling on Sunday except for the sale of food, drugs, certain vehicular equipment, newspapers, magazines, souvenirs, bait and cemetery monuments. Section 9 of the General Business Law is what is commonly referred to as a Sabbath Day Ordinance. Sabbath day ordinances which prohibit the carrying on of some business but allow others to be conducted on the Sabbath are constitutional and do not violate one's right to equal protection of the law, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Two Guys From Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184. In the Friedman case the Court of Appeals stated p. 80, 96 N.E.2d p. 186:
The court believes that the rationale behind the Memorial and Independence Day Ordinance is generally the same as that behind the similarly worded Sabbath Day Ordinance. Memorial Day and Independence Day are legal holidays on which people should be able to rest and relax. They are also two days set aside to pay homage to those who have given their lives for our country and to commemorate perhaps the greatest event in our nation's history--the signing of the Declaration of Independence. The Sabbath besides being a day of rest and relaxation is set aside to allow people to worship their God. In neither instance is the carrying on of any but necessary commercial enterprise proper.
The state legislature evidenced the intent of treating Memorial Day and Independence Day as special by passing Section 86 of the General Municipal Law. Section 86 provides:
Section 86 is the source of a municipality's right to pass ordinances concerning Memorial Day and Independence Day. The key problem revolves around whether the legislative grant of a right to regulate the nature of business includes the right to prohibit the transaction of business by certain commercial enterprises. In People v. Martins of Hempstead, Inc., 5 Misc.2d 802, 286 N.Y.S.2d 766, a village ordinance providing that all trades, manufactures, agricultural or mechanical employments on Memorial Day were Prohibited except when the same were works of necessity, exceeded the power granted to the village under General Municipal Law Section 86--said the court.
In People v. Kaufman, Carpets, Inc., 59 Misc.2d 113, 298 N.Y.S.2d 241, the defendant was charged with violating an ordinance by selling or offering to sell carpets on Memorial Day. The defendant moved to dismiss the information on the ground that there was no authority in law authorizing the City of Yonkers to prohibit the business activities of the defendant on May 30, 1967. Judge Gilbert Landy of the Court of Special Sessions, City of Yonkers in granting the motion stated pp. 116--117, 298 N.Y.S.2d pp. 244--245:
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Monarski v. Alexandrides
... ... of the law; is in many critical areas hopelessly vague concerning what action in permitted or forbidden and totally unclear concerning what people fall within the classes governed by the statute; grants to the Chief of Police unlimited authority to unilaterally legislate rules and substantial ... People v. Leshaw, 63 Misc.2d 364, 316 N.Y.S.2d 704; Main Private Car Service, Inc. v. Mayor of Yonkers, 71 Misc.2d 417, 336 N.Y.S.2d 207. If the constitutional ... ...