Wnek Vending and Amusements, Inc. v. City of Buffalo

• Court: New York Supreme Court
• Writing for the Court: RUDOLPH U. JOHNSON
• Citation: Wnek Vending and Amusements, Inc. v. City of Buffalo, 410 N.Y.S.2d 255, 96 Misc.2d 983 (N.Y. Sup. Ct. 1978)
• Decision Date: 03 November 1978
• Parties: WNEK VENDING AND AMUSEMENTS, INC., Robert J. Wnek, President, Plaintiffs, v. The CITY OF BUFFALO, and Frank J. Hahn, Director of Licenses, Division of Licenses and Permits, Defendants.

Page 255

410 N.Y.S.2d 255

96 Misc.2d 983

WNEK VENDING AND AMUSEMENTS, INC., Robert J. Wnek President, Plaintiffs, v. The CITY OF BUFFALO, and Frank J. Hahn, Director of Licenses, Division of Licenses and Permits, Defendants.

Supreme Court, Erie County.

Nov. 3, 1978.

Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo (Paul J. Cambria, Jr., Buffalo, of counsel), for plaintiffs.

Joseph P. McNamara, Corp. Counsel, Buffalo (Frank Heller, Buffalo, of counsel), for defendants.

MEMORANDUM DECISION

RUDOLPH U. JOHNSON, Justice.

Plaintiff, Wnek Vending and Amusements, Inc., originally sought injunctive relief from this Court, restraining the Defendants, City of Buffalo et al., from enforcing the provisions of Chapter VII, Sec. 27 of the Buffalo City Ordinances which prevented the Plaintiff from distributing and operating coin controlled "pinball machines" within the limits of the City of Buffalo.

By Memorandum Decision dated July 7, 1978, this Court denied Plaintiff's request noting that a factual question existed over whether the addition of "flippers" to the device traditionally known as a "pinball machine" so materially changed the game's operation as to substantially remove the element of chance and thereby place this new type of "pinball machine" into the category of the non-prohibited bowling machines.

Additionally, this Court pointed out that Plaintiff's claim of irreparable injury was factually unsupported and, therefore, not entitled to the drastic relief of temporarily enjoining a City Ordinance.

Plaintiff's constitutional challenge to the validity of the Ordinance was not, therefore, reached by this Court.

Pursuant to Notice of Motion on September 6, 1978, Plaintiff sought reargument of his request for injunctive relief. By Affidavit of Plaintiff, it was factually shown that irreparable damage was being suffered, which damage Defendants did not deny or otherwise oppose. Plaintiff further withdrew its constitutional challenge of unequal protection of the laws which challenge originally raised the factual question covering the effect that the addition of "flippers" had on the degree of chance involved in the playing of a "pinball machine".

Accordingly, Plaintiff now bases its request for injunctive relief solely on a constitutional attack on Chapter VII, Sec. 27 of the Ordinances of the City of Buffalo. In that regard, the City invites this Court to determine the constitutionality of the Ordinance but makes no specific defense to Plaintiff's argument other than to note the strong presumption of constitutionality granted legislative enactments. Matter of Malpica-Orsini, 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486 (1975); Nettleton v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 625 264 N.E.2d 118 (1970); Rochester Poster Advertising Co., Inc. v. Town of Brighton, 149 A.D.2d 273, 374 N.Y.S.2d 510 (4th Dept. 1975).

At the outset, it is of interest to note that Plaintiff does not move by way of Article 78 of the C.P.L.R. to compel the City to license the machines in question, but rather requests a declaration voiding the Ordinance and seeks equitable relief to restrain the City from causing Plaintiff irreparable damage and injury through the enforcement of its Ordinance.

"A court of equity will assume jurisdiction and will enjoin enforcement of a void ordinance where its enforcement will affect property rights and work irreparable injury." Cowan v. City of Buffalo, 247 A.D. 591, 288 N.Y.S. 239 (1936)

On May 5, 1978, the Plaintiff filed applications on forms provided by the Defendants requesting issuance of licenses for two coin operated "pinball machines" to be located at two sites within the City of Buffalo. By letter of that same date the Defendant, Frank J. Hahn, as License Director, disapproved the Plaintiff's application "on the grounds that they are in violation of the City Ordinance, Chapter 7, Art. 2, Sec. 27(1)(b). They are both Pinball Machines and illegal in the City of Buffalo."

The city Ordinance provides in pertinent part:

". . . No 'gambling device' shall be licensed hereunder.

The term 'gambling device' shall mean and include:

(a) A machine, slot machine, apparatus, paraphernalia or device whether manually, mechanically, electrically or otherwise operated, in or upon which a game or contest involving an element of chance may be played and the machine or device may be operated by one or more persons, singly or collectively, upon, and as the result of, the insertion of a piece of money or coin, or other object for which a fee, charge or other consideration is imposed directly or indirectly;

(b) A machine, apparatus, paraphernalia or device of the type, design, class or construction commonly known as a pinball or bagatelle machine, upon which a game or contest is played upon the insertion of a piece of money or coin, or other object for which a fee, charge or other consideration is imposed directly or indirectly; and

(c) A machine, apparatus, paraphernalia or device that is adapted, or may be converted into one that is adapted, for use in such a way that, as the result of the insertion of a piece of money or coin, or other object, such machine or device is caused to operate, and, by reason of an element of chance or other outcome of such operation, unpredictable by him, the user may receive, or become entitled to receive, a piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance or thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, apparatus or device, irrespective of whether it may, apart from the element of chance or unpredictable outcome of such operation, also sell, deliver or present some merchandise, indication of weight or other thing of value."

It is the contention of Plaintiff that the language of the Ordinance is so vague and loose that it leaves to those required to apply it so wide a discretion as to allow for arbitrary and capricious decisions. Plaintiff maintains that no standards are set forth to aid the licensing authority to validly determine whether a given apparatus is a "gambling device" as defined by the Ordinance.

Plaintiff emphasizes that the choice of the phrase "element of chance" to define a "gambling device" without further prescribed standards to aid the licensing authority is constitutionally vague requiring an arbitrary decision in granting or refusing a license application.

However, the due process criteria of legislative standards in licensing ordinances is not as Plaintiff argues; that all be informed by a statute as to what it commands or forbids and that men of common intelligence, experience and understanding must not be forced to guess at its meaning, but rather is only to afford a reasonable guide to the licensing authority. While the power to exercise discretion as delegated by Buffalo Common Council must be accompanied by certain standards, the enactment is not required to specify details. It need not only provide a general guide for the licensing agent.

We cannot, therefore, agree that the Ordinance as a whole should fall as being constitutionally vague, arbitrary or unreasonable. As stated in Matter of Levine v. Whalen, 39 N.Y.2d 510, 515, 516, 384 N.Y.S.2d 721, 723, 349 N.E.2d 820, 822 (1976):

"The Legislature may constitutionally confer discretion upon an administrative agency only if it limits the field in which that discretion is to operate and provides standards to govern its exercise. This does not mean, however, that a precise or specific formula must be furnished in a field where flexibility and the adaptation of the legislative policy to infinitely varying conditions constitute the essence of the program. The standards or guides need only be prescribed in so detailed a fashion as is reasonably practicable in the light of the complexities of the particular area to be regulated, since necessity fixes a point beyond which it is unreasonable and impracticable to compel the Legislature to prescribe detailed rules (Matter of City of Utica v. Water Pollution Control Bd., 5 N.Y.2d 164, 168-169, 182 N.Y.S.2d 584, 586-587, 156 N.E.2d 301, 303-304). Indeed, in many cases, the Legislature has no alternative but to enact statutes in broad outline, leaving to administrative officials enforcing them the duty of arranging the details (Matter of People (International Workers Order), 199 Misc. 941, 972, 106 N.Y.S.2d 953, 981, aff'd 280 App.Div. 517, 113 N.Y.S.2d 755, aff'd 305 N.Y. 258, 112 N.E.2d 280). More to the point, it is not always necessary that license legislation prescribe a specific rule of action and, where it is difficult or impractical for the Legislature to lay down a definite and comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials (Matter of Bologno v. O'Connell, 7 N.Y.2d 155, 159, 196 N.Y.S.2d 90, 93, 164 N.E.2d 389, 391)."

See also:

Employers Claim v. Workmen's Compensation, 35 N.Y.2d 492, 364 N.Y.S.2d 149, 323 N.E.2d 689 (1963);

Matter of Barton Trucking Corp. v. O'Connell, 7 N.Y.2d 299, 197 N.Y.S.2d 138, 165 N.E.2d 163 (1959);

Matter of Elite Dairy Prods. v. Ten Eyck, 271 N.Y. 488, 3 N.E.2d 606 (1936);

Matter of Shell Oil Co. v. Farrington, 19 A.D.2d 555, 241 N.Y.S.2d 152 (1963)

More critically, we note that the Plaintiff in pressing its argument overlooks the fact that its license application was denied under Sec. 27(1)(b) which specifically forbids "pinball machines". The Ordinance does not attempt to define a "pinball machine" but does emphatically outlaw the general category of devices commonly known as a "pinball or bagatelle machine, upon which a game or contest is played".

As previously pointed out the factual question, whether the addition of "flippers" is such a technical advance as to remove Plaintiff's machines from that general category is no longer before this...