Party Magic Enters., Inc. v City of Long Beach
Annotate this CaseDecided on December 11, 2006
Supreme Court, Nassau County
Party Magic Enterprises, Inc., Plaintiff,
against
City of Long Beach, Defendant.
010420/06
Lawrence V. Carra, Esq.
Attorney for Plaintiff
114 Old Country Road
Mineola, NY 11501
Carolyn Cairns Olson
Corporation Counsel, City of Long Beach
Attorney for Defendant
City of Long Beach
1 West Chester street
Long Beach, NY 11561
Daniel Palmieri, J.
Upon the foregoing papers it is ordered that this motion by the defendant City of Long Beach for an order pursuant to CPLR 3211(a)(7) dismissing the complaint for failure to state a cause of action, and for a declaration that City of Long Beach Code of Ordinances ("Code") § 14- 179(a)(3) is constitutional, is in all respects denied.
By order dated June 30, 2006, memorializing a determination announced from the bench after oral argument held that date, this Court denied the motion of the plaintiff for a preliminary injunction (Party Magic Enterprises, Inc. v. City of Long Beach, 2006 NY Slip Op. 51469 (U); July 18, 2006 NYLJ 23, (col. 3). The plaintiff, a vendor/peddler using an unmotorized cart to sell certain food items on defendant's streets and boardwalk, sought to enjoin the defendant City from enforcing an ordinance prohibiting the plaintiff from keeping its stand in one place for more that five minutes. However, it is well established that a ruling on an application for such preliminary relief does not foreclose a different result at a later point in the proceedings (see, e.g., Incorporated Vil. of Atl. Beach v Gavalas, 81 NY2d 322, 324-325 [1993]; Preston Corp. v Fabrication Enters., Inc., 68 NY2d 397, 405 [1986] [even if there had been no error in the initial issuance of a preliminary injunction, it ultimately may be shown that it should not have been granted]). This would appear to be especially true where a court denies a preliminary injunction seeking to enjoin the enforcement of a municipal ordinance on the ground of its unconstitutionality, given the presumption of constitutionality that attaches to such ordinances (Korotun v Incorp. Village of Bayville, 26 AD3d 311 [2006]) and the high standards to be met before a preliminary injunction may be granted in general (Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]).
In view of the foregoing, the Court is in no way bound by its prior ruling now that it is called on to decide if the plaintiff has stated a viable cause of action. The Court holds that it has.
It is not disputed that the plaintiff is licensed by the defendant City as a "peddler" as that term is defined in section 14-178 of the Code. The subject ordinance, section 14-179(a)(3), therefore applies to the plaintiff. It provides as follows:
Duties and restrictions on peddlers, merchants and industrial caterers. The following duties and restrictions shall apply to peddlers, merchants and industrial caterers:
(a) A holder of a license issued pursuant to the article shall not:
....
(3) Stand or permit the unmotorized vehicle used by him for sale of ice cream products and/or soda to stand in a fixed location in any public place or street for more than five (5) minutes.
In the first cause of action alleged in its complaint, the plaintiff claims that the ordinance reproduced above is unconstitutionally vague and indefinite. In reviewing a statute or ordinance challenged for vagueness, a court must first determine whether it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. It then must decide if a police officer is provided with clear enough standards for enforcing the law, such that he or she would not be permitted or encouraged to be arbitrary or discriminatory in doing so (People v Stuart, 100 NY2d 412, 420 [2003]; People v Nelson, 69 NY2d 302, 307 [1987]).
In this case, the Court cannot agree with the City that no claim is stated for unconstitutional vagueness. Although a person of ordinary intelligence would understand that refusing to move his cart, or moving it only a few feet, would not satisfy the ordinance's requirement that it not remain in the same/fixed position after five minutes had passed, it would not be clear to such a person just how far beyond a few feet he would have to go. Perhaps more importantly, one police officer could decide that 100 feet would be enough, but another be satisfied with no less than 100 yards.
Thus, and while the Court will not assume that a common-sense and good-faith approach would not be used by members of the Long Beach Police Department, the statute presents the possibility of different standards being applied by different officers. Even if the Police Department itself or other City officials came up with a reasonable policy of what a minimum distance might be, there is nothing to prevent changes to that policy without notice to potential offenders. Moreover, such a policy conceivably might apply different distances based on the introduction of certain other factors (for example, the size of the cart or its initial location) that could result in inconsistent treatment of potential offenders.Any or all of these factors could lead to arbitrary or discriminatory enforcement (People v Stuart, [*2][*3]100 NY2d 412, 420, supra). The Court also takes note of plaintiff's citation to similar ordinances of other local municipalities, all of which provide specific minimum distances a peddler must move from the prior location. It would appear that this simple addition to the ordinance would resolve the problems referred to by the plaintiff.
In view of the foregoing, the Court finds that a claim for unconstitutional vagueness is stated by the plaintiff (CPLR 3211(a)(7); see generally, Guggenhiemer v Ginzsberg, 43 NY2d 268 [1977]). Accordingly, the motion must be denied.
This shall constitute the Decision and Order of this Court
E N T E R
DATED: December 11, 2006
_____________________________
HON. DANIEL PALMIERI
Acting Supreme Court Justice
TO:
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
