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GREENBURGH POLICE CHIEF WROTE LETTER TO ATTORNEY GENERAL ARGUING AGAINST PREEMPTION OF PROPOSED MASSAGE LAW

The proposed law to put an end to houses of prostitution fronting as massage parlors in Greenburgh is supported by Police Chief Chris McNerney who said this week that he had written a letter to the state attorney general to accompany the letter that the town attorney’s office sent in which the chief argued that the proposed law is not preempted by the state education law requiring the licensing of massage therapists.

In the meantime, at the insistence of the Greenburgh town attorney, the town board held a secret conference call Tuesday with a lawyer for the Association of Towns seeking an opinion that the proposed law is preempted.

Speaking before the Planning Board at a work session on Wednesday, Chief McNerney, who is also a lawyer, said he had written a letter in support of the proposed law but he did not say whether the town attorney’s office had allowed the letter to be sent.   The Town did not release a copy of any such letter when it released a copy of the letter it sent to the attorney general, and town officials, including Town Supervisor Paul Feiner, appear to have kept the existence of Chief McNerney’s letter supporting the proposed law a secret.

The attorney general’s office rejected the town attorney’s letter as procedurally deficient because it was written on behalf of the planning board instead of the town board itself.   A decision to send a new letter to the attorney general, this time on behalf of the town board, has not yet been made.  The Planning Board last week demanded that the town board send such a letter.

ECC president Bob Bernstein, who had drafted the proposed law after Town Attorney Tim Lewis had refused to do so himself, had criticized the town attorney’s letter to the attorney general for effectively asking the attorney general to find the proposed law preempted.  Among other things, the town attorney’s letter did not mention that the town was seeking to put an end to houses of prostitution fronting as massage parlors. Nor did it mention that state law expressly gives towns the right to enact local legislation to enforce laws against prostitution.

Chief McNerney also told the Planning Board that because the town did not have the legal authority to close down massage parlors that the ECC’s proposed law would give the police, the problem of prostitution in Greenburgh had become so bad that “Greenburgh has become the massage parlor capital of Westchester County.”  Chief McNerney had told the ECC in October that because so many of the massage parlors were in Edgemont, that “Edgemont had become the massage parlor capital of Westchester County.”

The planning board did not allow the public to speak.  Nor did the planning board invite Mr. Bernstein to explain why the proposed law is not preempted.

Nor was Mr. Bernstein invited to explain why the proposed law was structured to require that all massage establishments obtain a license to operate by completing an application and getting a report and recommendation from the Police Chief, the building inspector and the fire marshall.  The purpose of the licensing procedure is to allow the police department to do a background check, the building inspector to ensure that the massage premises meet all state and local building codes, and the fire marshall to ensure that the facilities satisfy all state and local fire safety requirements.

Planning board members, who did not appear familiar with the legal doctrine of preemption, assumed that because the state education law “licenses” massage therapists based on their meeting certain educational requirements, it must therefore mean that all “licensing” of massage establishments by towns, even if the “licensing” is for a completely different purpose, must be preempted.

A local law is “preempted” by state law when the state legislature enacts a law that either expressly provides that it is intended to supersede all local laws in that field or, based on how sweeping the measure is written, it implicitly supersedes such laws.  Preemption is generally not found where the state legislature expressly confers authority on local municipalities to enact their own rules and regulations.  Here, New York state law gives municipalities the authority to enact laws to enforce laws against prostitution.

Deputy town attorney David Fried, who was present for the planning board meeting, and signed the one-sided letter to the state attorney general, never mentioned to the planning board that massage therapist license required by the state education law and the proposed Greenburgh license for massage establishments in order to prevent prostitution were for completely different purposes and thus not preempted.

Instead, planning board members thought that if the proposed law simply eliminated the licensing requirement altogether, and just allowed approval of massage establishments by “special permit,” then the preemption problem would disappear.

No one explained to the planning board that the purpose of the licensing requirement was to allow the police, building inspector and fire marshal to give the okay before a massage establishment could apply for a special permit and that if the licensing component of the proposed law were eliminated, there would still be a need — in order for the legislation to work — for the police, building inspector and fire marshal to provide a report and recommendation as to whether the special permit should be granted.

Ironically the idea of just giving the building inspector the “discretion” to issue special permits to allow massage establishments to open in Greenburgh, which is what the planning board was suggesting, was first presented by Town Attorney Tim Lewis in December 2014 to a lawyer for the Association of Towns of the State of New York who, after listening to Mr. Lewis’s presentation, thought what he was proposing would be preempted.

The Town Board meanwhile went ahead with its plan this week to continue shopping for a legal opinion that the proposed legislation is preempted.  As part of that plan, the town board held a conference call Tuesday with the same lawyer from the Association of Towns, Kathleen Hodgdon, who told Mr. Lewis in December that she thought towns were preempted from issuing permits to massage establishments.

At Mr. Lewis’ request, the conference call was held in executive session, i.e., in secret, so that members of the public — and Mr. Bernstein in particular — would not know what was said.

Mr. Feiner had invited Mr. Bernstein  to participate in the call but Mr. Bernstein had already told him he would participate only if the Town would release to him the information Mr. Lewis had previously provided to Ms. Hodgdon, which the Town would not do.

Chief McNerney was apparently involved in the call to Ms. Hodgdon, and according to Town Councilman Francis Sheehan, there is to be a followup call with the Association of Towns next week after Ms. Hodgdon does more legal research.

Mr. Feiner raised with the board on Tuesday Mr. Bernstein’s offer to meet with them to explain why the proposed law is not preempted, but the board did not respond and instead left the room to go into executive session and conduct the conference call with the Association of Towns.   Even though the town board routinely hears from lawyers for developers with applications pending before the board — and did so again at Tuesday’s work session — the town board has never invited Mr. Bernstein to present the law, which the town board has now had for more than three months, and explain why it is lawful for the town to enact it.

The Planning Board meanwhile notified the Town Board that it needed an additional 30 days to consider the proposed law and scheduled another meeting to discuss it on April 15.  Under the Greenburgh Code, the planning board has 120 days to consider the proposed law and if it does not do so within that period of time, the Town Board may hold a public hearing to pass it.  The 120-day period will run out on May 22.

However, given the Town Board’s apparent effort to shop around for opinions why the proposed law is preempted — without giving Mr. Bernstein an opportunity to explain to them why the law is not preempted, it appears unlikely that the Town Board will ever schedule a public hearing on the proposed measure.

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