TOWN ATTORNEY’S LETTER TO ATTORNEY GENERAL MISSTATES MASSAGE LAW’S PURPOSE

The Town this evening released a copy of the letter a deputy town attorney sent  last week to the Office of the New York State Attorney General asking whether state law bars the Town from enacting the legislation submitted by the Edgemont Community Council that would bar brothels or houses of prostitution from fronting as massage parlors.

The letter makes no mention of the Town’s stated purpose to bar brothels from fronting as massage parlors.  Nor did the letter mention that such purpose is expressly authorized under a separate provision under state law governing towns (Town Law Section 130, subsection 11), or that the license to be issued to massage businesses was based not on existing state law education and training requirements for licensing massage therapists, but rather on a report and recommendation from the police chief, the building inspector and the fire marshal.  Nor did the letter mention that other towns and villages in New York, such as Clarkstown and Farmingdale have successfully enacted similar legislation with no legal challenges whatsoever.

Instead, the town attorney’s letter conveys the impression that the Town is merely proposing to license massage parlors, that such licensing would appear to be duplicative of existing state laws requiring licensing of massage therapists, and that, as a result, the proposal “is preempted by Article 155 of the Education Law, as well as Part 29 of the Rules of the Board of Regents and Parts 52.15 and 78 of the Commissioner’s Regulations as they pertain to “Massage Therapy.”

The Town’s letter nowhere discusses these specific statutes and regulations, which deal only with the education and training required before massage therapists may be licensed in New York.   There is nothing in those statutes and regulations which deal with the authority of towns in New York to adopt its own laws to restrict brothels from fronting as massage parlors.

The ECC had proposed the law after Police Chief Chris McNerney said last October that Edgemont had become the “illicit massage parlor capital of Westchester County.”  The town attorney, who was supposed to write legislation to assist local law enforcement in cracking down on such businesses, refused to do so, claiming that, even though other towns and villages in New York had already done so without legal challenge, he did not believe such legislation was legal.

The proposal was drafted instead by ECC president Bob Bernstein.

The state attorney general’s office issues non-binding informal “advisory”  opinions to assist municipal attorneys in advising their respective municipalities.  Only municipal attorneys may request such opinions and  in issuing such opinions, the attorney general relies on the municipal attorney to “provide us with the facts.”  Therefore,  if a municipal attorney plays fast and loose with the facts, the resulting advisory opinion is not likely to be of much validity.

The letter was sent last Thursday immediately after the Planning Board voted unexpectedly — and without any prior public notice — to have the town attorney seek such an opinion.

The town attorney’s letter to the Attorney General also goes well beyond the Planning Board’s limited jurisdiction, which suggests that the town attorney’s strategy all along was to get a letter written to the state attorney general and have it authorized not by the Town Board, for which Town Supervisor Paul  Feiner would have to take the heat politically, but by the Planning Board which is supposed to be “independent” of the town board.  As far as the town attorney is concerned, it appears that the same letter would have been sent, no matter which board had authorized it.

Under Greenburgh law, the Planning Board is only authorized to report and comment on that portion of the proposed law that amends the Town’s zoning ordinance.  Most of the letter deals with the proposed law’s licensing requirement.

Mr. Feiner said that if it were up to him, the town attorney’s letter would not have been sent, but he says that because the Planning Board is an “independent” board, there is nothing he can do about it.

In fact, as the Town’s chief executive officer, if he felt the letter was misleading, Mr. Feiner could ask his colleagues on the town board to have the letter withdrawn or at least require that it be rewritten to  be fair and balanced.  Neither Mr. Feiner nor any of his colleagues on the Town Board have indicated any willingness to do that.

The letter to the attorney general was made public tonight in response to a resident’s Freedom of Information Law request.  Mr. Feiner had yesterday directed that a copy of the letter be made available “ASAP” to Mr. Bernstein, as the author of the proposed legislation, but the town attorney’s office declined, making clear it was responding only to the FOIL request.

The Planning Board meanwhile intends to go forward with its consideration of the proposed legislation on March 18, as originally scheduled, with or without an opinion from the state attorney general.

However, because the town attorney has thus far declined to inform the Planning Board of its limited role in this matter, it is unclear whether  planning board members will issue any report and recommendation until the opinion they requested from the Attorney General’s office on matter outside their purview is actually received — and without a report and recommendation from the Planning Board, the Town Board cannot schedule a public hearing on the measure which it must do before voting on whether to enact the measure.

If the Planning Board does issue a report and recommendation on the massage law, it may be many months before it does so.  A measure seeking to allow car dealerships on Central Avenue in Edgemont was referred to the Planning Board on October 22 and more than five months later, the Planning Board has still not acted on it.

It is not known why the town attorney and the town clerk are working so hard to prevent the Town from adopting the proposed legislation, or why Mr. Feiner and his colleagues on the Town Board are allowing them to do so.  Mr. Feiner claims to be in support of the ECC’s proposed measure, but his actions have many people in Edgemont and elsewhere questioning whether his support on this issue is really genuine.

Last fall, Mr. Feiner said he backed an initiative to construct sidewalks near elementary schools in Edgemont, then changed his mind in December, and then got the town in January to approve a “request for proposals” to study the matter, thus suggesting he really does support the construction of such sidewalks.  But no such RFP has been prepared, suggesting that the measure approved in January was really intended for show Edgemont he really does want sidewalks, without actually doing anything to get them built.

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