TOWN OF NEW CASTLE INTRODUCES ECC’S PROPOSED MASSAGE LAW; GREENBURGH REFUSES TO WITHDRAW MISLEADING LETTER TO ATTORNEY GENERAL

The northern Westchester town of New Castle last week introduced the law drafted by the Edgemont Community Council to bar houses of prostitution from fronting as massage parlors, while the Town of Greenburgh today refused a request to withdraw a letter it sent to the state Attorney General seeking an opinion that towns in New York are barred from enacting such legislation.

The agenda for tonight’s work session of the Town Board in New Castle includes a discussion of a draft of a proposed massage law, dated February 27, which is word for word identical to the law written by ECC president Bob Bernstein with the words “New Castle” substituted for “Greenburgh.”

Meanwhile, the Town Board in Greenburgh decided this morning not to withdraw a letter sent February 19 by the Town Attorney’s office to the state Attorney General asking whether the proposed legislation is “preempted” by existing state law requiring that massage therapists be licensed.

Town board members declined to withdraw the letter after deputy town attorney David Fried, who signed the letter, said he believed it was “neutral” and because he didn’t think the Attorney General was “stupid.”

Mr. Bernstein last week asked the Town Board to withdraw the town attorney’s February 19 letter because, even though letters to the attorney general seeking legal opinions are supposed to include “all pertinent facts,” the letter that was sent never mentioned that the Town’s stated purpose was to bar houses of prostitution  from fronting as massage parlors.  Nor did the letter mention that towns in New York are expressly authorized under state law (Town Law Section 130, subsection 11) to enact ordinances and regulations to combat prostitution. Nor did the letter mention that other towns in and villages in New York, such as Clarkstown in 1996 and Farmingdale in 2013, have successfully enacted similar legislation with no legal challenges whatsoever.

Instead, the town attorney’s letter conveys what Mr. Bernstein said was the false and misleading impression that the Town is merely proposing to “license” massage parlors in much the same manner that the state requires that massage therapists be “licensed,” and asks whether 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.”

Mr. Bernstein said he would help the town attorney’s office draft a new letter to the attorney general, if the town board felt an opinion was needed, but only if the prior letter was withdrawn.  “The attorney general’s office states on its website that they are not “‘finders of fact.” For that reason, you cannot have two letters from the same town attorney contradicting each other,” Mr. Bernstein said.

At the Greenburgh town board work session this morning, no members of the Town Board, including Town Supervisor Paul Feiner, questioned Mr. Fried or Town Attorney Tim Lewis, who has been a vocal opponent of the legislation, as to why the town attorney’s letter omitted facts concerning the Town’s purpose, the Town’s reliance on state law expressly permitting regulation for that purpose, or the fact that other towns and villages in New York had successfully adopted similar legislation.

Instead, town board members said they did not want to be perceived as “interfering” with the Planning Board, which is an independent board.  However, there is no law or regulation that would bar the town board from directing that a letter written in error by the town attorney be withdrawn.

The Town’s Ethics Code states that “[n]o member of the Town Board shall participate as an advocate before the Planning Board or Zoning Board of Appeals for or against any application, except with respect to any property in which she/he has an Interest.”  Because the matter here involves not an application, but proposed legislation, there is nothing in the Ethics Code that would prevent the Town Board from asking the Town Attorney to withdraw a letter to the Attorney General concerning pending legislation where such letter failed to comply with state requirements that “all pertinent facts” be disclosed.

Mr. Feiner said that the chair of the planning board, Fran McLaughlin, who was made aware of all the problems with the letter, told him Friday she would not support withdrawing the letter and replacing it with one that included the facts which the town attorney’s letter omitted.

The planning board’s action in approving the letter has another problem.  The planning board  is only authorized by law to report on proposed legislation which amends the Town’s zoning ordinance.  Here, the proposed massage law creates  a new chapter in the Town Code outside of the zoning ordinance, while requiring  a minor amendment to the zoning law requiring that massage establishments, like a number of other businesses, obtain special permits from the Town Board.

But even though the planning board’s jurisdiction is limited, the town attorney’s letter attacks the proposed legislation in its entirety. That too, apparently didn’t concern Ms. McLaughlin or town board members who today said that because they couldn’t “interfere” with what an “independent” board does, the sending of a letter to the Attorney General that extends beyond the Planning Board’s legal authority was not their problem.

It is possible that the Planning Board, which meets this Wednesday, might revisit the issue, but because there is no opportunity for any public discussion of the matter before the Planning Board, and because the Planning Board apparently gets all its information concerning such matter from the town attorney’s office, which feels it did nothing wrong, it is not expected that any Planning Board members, who are often criticized for operating in a vacuum, will have any idea what the pending controversy is about.

“We believe there are at least eight illicit massage parlors now operating in Edgemont and a few more in operation on Tarrytown Road,” Mr. Bernstein said. “With today’s action by the Town Board, there will almost certainly be more such establishments opening up in Greenburgh,” he added.

At last night’s meeting of the Edgemont Community Council, where the matter was discussed, several Edgemont residents said that if the town board did not withdraw the letter as requested, the proposed massage legislation was unlikely to be approved and said they would hold Mr. Feiner, the town board, the town attorney and Town Clerk Judith Beville all responsible for thumbing their noses at sex trafficking in the Town and contributing to an overall decline in the quality of life.   Ms. Beville has been a vocal opponent of the proposed legislation and at first succeeded in preventing Mr. Feiner from even introducing the measure.  The town attorney has long opposed the measure and, for that reason, refused to write it, which is what led Mr. Bernstein to draft it.

The measure was introduced at a special meeting of the town board after the ECC posted adult-themed ads on the internet advertising that two new massage establishments in Edgemont — including one directly across the street from the Greenburgh Nature Center — were holding “grand opening specials.”

The idea of writing legislation to give law enforcement officials the tools they said they needed to combat prostitution in the Town first arose in October when Police Chief Chris McNerney said the prostitution problem in Edgemont had become so bad that Edgemont had become “the illicit massage parlor capital of Westchester County.”

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