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GREENBURGH PLANNING BOARD VOTES 4-3 TO REJECT ECC’S PROPOSED MASSAGE LAW

The Town’s planning  board tonight voted 4-3 to reject legislation proposed by the Edgemont Community Council to give Greenburgh police the tools they said they need to close brothels fronting as “massage parlors.”

The planning board voted instead to support a vaguely-worded watered down version of the law that lets “massage facilities” operate as long as they obtain a special permit from the town board and agree to comply with state law.

The planning board’s proposal thus eliminates the need for owners and managers of massage establishments in Greenburgh to submit to police background checks before getting a license from the Town to operate as a “massage establishment”– which was at the heart of the ECC’s proposal and was word for word identical to a provision already in the Greenburgh code dating back to the 1970s in the chapter governing cabarets.

The background checks in the Town’s cabaret law were enacted to give police the tools they needed to deal with organized crime which had infiltrated the Town’s cabaret businesses.  Law enforcement officials have said that the brothels fronting as massage parlors in places like Edgemont today are likewise almost certainly owned or controlled by organized crime figures, and the planning board’s recommendation effectively prevents the police from taking any action to prevent such facilities from opening or closing them down permanently when they do open.

Like the already existing cabaret law, the ECC’s proposal required that massage establishments first apply for a license to operate by completing an application that would be forwarded to the police chief, the building inspector and the fire marshall for review and recommendation.

Under the ECC’s version of the law, the police chief would be able to conduct background checks on persons who own and manage such establishments for the purpose of determining, among other things, whether these individuals have prior criminal records suggesting the possibility that their respective businesses would be operated as  brothels.

In the planning board’s watered down version of the law, not only is there no requirement for a background check, but the role of the police in reviewing applications for special permits is rendered virtually nonexistent.

Specifically, the role of the police is expressly limited to determining compliance with the requirements of the Town’s zoning code.  But since the Town’s zoning code does not address the types of conduct that the police, in reviewing such applications, would most likely need to examine, the planning board’s version effectively extinguishes  the role of the police in reviewing the special permit applications.

The planning board’s version is also vulnerable to attack on the grounds that in giving police the right to recommend against a special permit, it fails to specify any norms or standards that the police might use in exercising that discretion, which may render the planning board’s proposal unconstitutionally vague and therefore unenforceable.

Rendering the law ineffective or even unconstitutionally vague and unenforceable seems to have been the aim of the Town Attorney’s office, which has been working for the past five months to find ways to prevent the ECC’s proposed law from being enacted.

The town attorney had originally succeeded in getting the planning board to request an opinion from the state attorney general that the ECC’s proposed law was preempted by the state’s education law requiring that massage therapists be licensed.   The attorney general’s office rejected that gambit and refused to provide any such opinion, which led the town attorney’s office to work in secret with town board members to get the planning board to gut the ECC proposal.

As a result of tonight’s planning board action, it appears the only way for the ECC’s proposed legislation to be enacted now is if the Town Board decides to approve it by a supermajority vote, i.e., a vote of four out of its five members.

However, no action is likely to be taken anytime soon because the planning board voted to ask the Town Board for another 30 day extension of time in which to submit its formal recommendations which, if the Town Board goes along with the request, means the Town Board won’t even be able to schedule a public hearing on the matter until sometime after May 22, which is when the Planning Board’s time theoretically runs out — and even then, the Town Board might decide to schedule a public hearing only on the planning board’s proposal, thus killing the ECC’s proposal altogether without even a hearing.

The planning board appeared to be split over the ECC’s requirement that massage establishments first be licensed before being eligible to apply for a special permit.

A majority of the planning board members said they wanted to go on record opposing the licensing requirement even though the licensing requirement was not technically within their purview to review under the Town Code which limits such review by the planning board strictly to land use measures.  The licensing requirement was purposely written as a a separate chapter in the Town Code regulating conduct rather than land use, but that didn’t stop a majority of planning board members from taking action it felt would require four out of five town board members to overturn.

Three planning board members disagreed with that tactic, saying that the licensing requirement was outside their purview and essentially none of their business.

The planning board members who did not wish to express an opinion on the licensing requirement said they were concerned that the planning board’s effort would prevent the police from conducting background checks; however, planning board chair Fran McLaughlin said she didn’t want background checks conducted at all because she felt they were too intrusive, and three of her colleagues nodded in agreement.

Also eliminated from the planning board’s proposal were tools the police said they needed to close down massage establishments permanently as soon as the police have reason to believe they are being conducted for unlawful purposes.  The ECC’s proposal had a number of provisions expressly tailored to give Greenburgh police precisely that authority, coupled with provisions giving such establishments a legal right of appeal if they feel they were wrongly charged.

Under the planning board’s proposal, however, permits to operate massage “facilities” may only be revoked after a hearing, and only upon “a finding that one or more practitioner at the Facility has failed to obtain or maintain any license of registration required by the New York State Education Law for practicing the professional of massage therapy or upon a plea of guilty or conviction for violating, misdemaeanor or feeling in connection with the special permit use.”

In other words, shutting down the facilities is left to the discretion of the Town Board and will only occur after a public hearing and only if, after the police arrest women for practicing massage therapy without a license, they are subsequently convicted of the crime, which could take months to resolve.

Thus rather than go after the owners and managers of the brothels fronting as massage parlors, as the ECC had tried to do, the planning board’s proposal is instead aimed squarely at punishing the women who work in these facilities.

Moreover, in most cases, the women arrested for such violations enter into plea bargains to lesser offenses, in which case, under the planning board’s proposal, the brothels fronting as massage parlors would almost certainly be allowed to continue to operate and wouldn’t be at risk of being closed for months, if at all.

The planning board acted without asking for any advice or explanation from ECC president Bob Bernstein, who drafted the proposed legislation.  Under the planning board rules, the planning board chair does not have to allow the public to speak and, consistent with that practice, even though Mr. Bernstein was present for much for the planning board’s discussion of the proposed legislation tonight, he was not invited to speak.

Mr. Bernstein said he had come to the meeting tonight to get a copy of the planning board’s proposed version of the law after the Town Board last week refused to direct the town attorney’s office to provide him a copy.  Upon reading the planning board’s version, which appeared to have been drafted by Deputy Town Attorney David Fried and planning commissioner Garrett Duquesne, Mr. Bernstein passed a note to Mr. Duquesne telling him that the proposal appeared on its face to be ” illegal, unenforceable, and won’t give the police the tools they need.”

Mr. Duquesne said he would pass along the comment to the planning board members seated in front of him, but then refused to do so.  Mr. Bernstein said Mr. Duquesne’s actions at the planning board will make it difficult for him to have credibility with Edgemont residents seeking changes in the Town’s proposed comprehensive plan.

The planning board’s version of the law also seems to be replete with vague undefined terms and ambiguities.  Unlike the ECC’s proposed law, which defined “massage establishments” and then contained a section entitled “Exemptions” which exempted many businesses where massage therapy is offered, such as gyms, doctor’s offices, personal training facilities, chiropractors, acupuncturists, the planning board’s proposal applies to all “massage facilities” which it defines as “any facility in which the primary use and purpose of the business is to provide for the practice of the profession of massage therapy” and lists no exemptions.  The way the legislation is worded, it would be up to businesses to decide for themselves whether their “primary use and purpose” is massage therapy; if they conclude that it isn’t, then no special permit would be required.

The planning board’s draft also uses undefined terms like “massage parlor” which makes its draft even more confusing and less likely to be enforceable.

Planning board members said they did not want their draft to be circulated publicly yet because they still wanted to make language changes, but it appears that no matter what language changes they still wish to make, the proposal they endorsed tonight will not give the police the tools they asked for to shut down brothels fronting as massage parlors in Edgemont or indeed, anywhere else in unincorporated Greenburgh.

Mr. Bernstein said many residents who watched the proceedings on cable television sent him emails and text messages saying how embarrassed they were by the planning board’s actions tonight.

“Thanks to the town attorney’s office, which has been working for five months to kill the ECC proposal, efforts to stop brothels fronting as massage parlors in Edgemont were dealt a huge setback tonight,” Mr. Bernstein said.  “I can’t say that I am surprised, but residents should understand that what happened tonight could have been prevented by the Town Board, which refused last week to let me see what the town attorney’s office was putting together to effectively gut what we were trying to do.”

“Sadly, it appears very unlikely that the Town Board, which could have prevented this from happening in the first place, will do anything positive to get the ECC’s proposal back on track,”  he added.

“I have repeatedly offered to meet with the Town Board to explain to them how the law works, why it was drafted the way it was drafted, why it’s legal, and why those who say it isn’t are mistaken,” Mr. Bernstein said, “All I asked in return was  that the Town Board give me copies of what the town attorney’s office has been telling them and the planning board behind closed doors for the past five months — and that’s the one thing the Town Board won’t do for reasons I frankly do not understand — and neither will residents.”

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