PEOPLE v. WEINKSELBAUM (2000)

In this criminal action, the defendant is charged with two counts of violating Babylon Town Code Secs. 213-398 and 213-397, respectively.   The defendant now moves to dismiss both charges.   The defendant claims that count 1 of the information charging a violation of Sec. 213-398 is insufficient.   Further, he claims that count 2 must be dismissed because the statute defining the offense, Babylon Town Code Sec. 213-397, is unconstitutional.   See CPL 170.35(1)(a) and (c).

The People offer no opposition to the dismissal of count 1. Sec. 213-398 requires a permit for signs in business and industrial districts and the information fails to allege that the property owned by the defendant is located in a business or industrial district.   The defendant and the People acknowledge that the property owned by the defendant containing a free standing sign is located in a residential zone.   Therefore, the motion to dismiss count 1 of the information for insufficiency is granted.

 The defendant is the owner of residential premises and has a free standing sign on the lawn, in front of his house, which states “STOP POLICE HARASSMENT & BRUTALITY IN SUFFOLK COUNTY.   CHILDREN & TEENS HAVE RIGHTS TOO!”. Babylon Town Code Sec. 213-397 states that no sign shall be erected in any residential district with five exceptions.   These are:  a) aviation signs;  b) professional name plate;  c) signs in connection with the sale, rental, construction or improvement of the premises;  d) house numbers and nameplates;  e) signs containing cautionary messages such as “Beware of Dog”, “No Trespassing” or “No Peddlers”.   The defendant claims that this statute is unconstitutional because it violates his First Amendment right to express his political message by a sign on his property.

 There is a strong presumption that an ordinance is constitutional and unconstitutionality must be demonstrated beyond a reasonable doubt.   See McKinney's Cons.Laws of N.Y., Book 1, Statutes Sec. 150;  Stepping Stones Associates v. City of White Plains, 100 A.D.2d 619, 473 N.Y.S.2d 578, aff'd. 64 N.Y.2d 690, 485 N.Y.S.2d 527, 474 N.E.2d 1196.   In addition, the court will consider Babylon Town Code Secs. 213-409 and 213-386 as part of the same statutory scheme to regulate signs in this zoning ordinance.   See McKinney's Statutes Sec. 98;  Lower Manhattan Loft Tenants v. New York City Loft Board, 66 N.Y.2d 298, 496 N.Y.S.2d 979, 487 N.E.2d 889.   Babylon Town Code Sec. 213-409 provides for a permit system of temporary signs, erected for 30 days.   The prosecution has submitted a number of applications for the temporary sign permits indicating that political messages are customarily displayed by this procedure.   Babylon Town Code Sec. 213-386 states the legislative purpose of the sign ordinances of the Town of Babylon, i.e. the public health, safety and welfare.   Specifically, the town is trying to promote aesthetic values and to promote traffic safety by avoiding visual distractions, physical obstructions and mistakes or confusion with authorized traffic signs.

 In Metromedia Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800, the court stated that government may properly limit the non-communicative qualities of signs to promote the legitimate government aims of aesthetics and traffic safety.   These time, place and manner restrictions on speech must not be based upon the content of the speech.   See Heffron v. International Society for Krishna Consciousness Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298.   The statutes must be narrowly tailored, so that the predominant effect is to limit the secondary results of the speech.   See Town of Islip v. Caviglia, 73 N.Y.2d 544, 542 N.Y.S.2d 139, 540 N.E.2d 215;  Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221.   After considering these criteria, this court finds that the defendant has not rebutted the strong presumption of constitutionality.   The zoning ordinances contained in Chapter 213, Article XXXIII, specifically Sec. 213-397, are narrowly tailored without regard to content, and accomplish legitimate governmental purposes.

Accordingly, this motion by defendant to dismiss count 1, violating Babylon Town Code 213-198, based upon the insufficiency of the information is granted.   See CPL 170.35(1)(a).   Motion to dismiss count 2, violating Babylon Town Code 213-197, based upon the ground that the statute defining the offense is unconstitutional is denied.   See CPL 170.35(1)(c).

PATRICK J. BARTON, J.