Judge: No Free Air For Now

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This lounge is located in a commercially-zoned district in the Town of Hempstead. Future ones will be restricted to industrial districts.

A state supreme court judge ruled that the Town of Hempstead went too far when it passed a law banning the possession and use of coin-operated air machines for tire inflation at service stations within its jurisdiction.

Judge Karen Murphy enjoined the town from enforcing an amendment that would have banned charging for compressed air while a lawsuit challenging the law makes its way through the courts.

According to a lawsuit, “Murphy focused on the fact that the New York State law (General Business Law § 396-x), which requires gas stations to have compressed air machines, allows businesses to charge customers for that service. Justice Murphy cited to the doctrine of Preemption, which prohibits local laws that conflict with State laws or where the state has clearly evinced a desire to occupy an entire field of legislation. Justice Murphy found that the plaintiffs met their burden for a preliminary injunction pending the resolution of their lawsuit. In addition to the Preemption violation, the plaintiffs’ complaint alleges a number of other compelling claims including that the new law, which requires business owners to provide a service without compensation, constitutes an unauthorized use of zoning and the town’s police powers to micromanage small businesses.”

In 2016, then Town of Hempstead Supervisor Anthony Santino wanted to strengthen an original 1978 law on the town’s books that mandated that gasoline stations provide free air. William McCabe Sr., founder and president of Floral Park-based Service Station Vending Equipment, told Anton Media Group that he has about 200 machines installed in the town, and his business depends on charging for air, the proceeds of which he then shares with the retailer or service station. The original law, he observed, “was on the books but under the radar,” and in 1991 he reached an agreement with the town to put signage on his dispensers that free air was available for the asking.

It was to end such a loophole that Santino introduced the amendment and consequently the town was sued by McCabe, as well as the Gasoline and Automotive Service Dealers Association (GASDA) and Long Island Gasoline Retailers Association (LIGRA).
New York City-based attorney Erica Dubno represented the plaintiffs in challenging the constitutionality of the law.

The town, Dubno summed up last March, when she spoke against the amendment, “is exceeding its authority under the zoning and police powers…[the law is] a violation of the Fifth and 14th amendments to the Constitution, as well as Article I of the New York State Constitution. It violates property owners’ rights to full protection and due process.”
McCabe and the other plaintiffs are not seeking monetary damages. At a public hearing last year to modify the amendment (successfully passed to remove a 24/7 requirement for free air), McCabe said he was willing to install and maintain machines on town property to dispense compressed air for free. McCabe said he has about 30 employees, and builds his machines at a plant in Copiague using parts made only in the United States.

The law also provides for what service station owners claim are burdensome costs and penalties. Owners can be jailed for up to 15 days for non-functioning machines and be charged up to $10,000 per week in fines. They also stated that changing machines to “no-charge” models without coin slots would be an added cost that many could not afford.
According to a press release, McCabe fully intends on “defending this decision and will challenge similar laws in any other municipality.”

Kevin Beyer, the vice president of Governmental Affairs for LIGRA, said, “I implore the new administration to repeal a law, such as this, from the bygone era of pointless Santino legislation at once. It has no legal foundation as we clearly see from Judge Murphy’s ruling. The law also has no regard for small businesses based right here in the Town of Hempstead. And, motorists are still protected by the state law.”

A law sponsored by Councilman Dennis Dunne Sr. restricting the placement of new hookah lounges was passed at the Jan. 9 town board meeting.

According to Town Attorney Joseph Ra, lounges will be restricted to industrial districts and away from residential and commercial districts.

Commented Dunne, “Smoking hookah for one hour is equivalent to smoking five packs of cigarettes. [People in the neighborhoods where] hookah lounges are open right now find drug paraphernalia on the front yards or side yards. We don’t want them in residential areas.

Donna LaScala of Hicksville, director of the East Meadow Smart Coalition, was on the frontlines of the fight against opioid addiction.

“We really need to pay more attention to this issue of gateway drugs like nicotine and alcohol,” she said. “Hookah lounges and vaping are rising in use and pose a severe health risk.”

Corinne Alba of YES Community Center in Levittown supported the legislation because “what we know in the treatment world, in the substance abuse world, is that the earlier kids begin to use substances, whether it’s cigarettes, hookahs, vaping, the likelihood of addiction is higher.”

She added, “Keeping paraphernalia out of our community is a strong step in this direction.”

Nassau County Legislator John Ferretti Jr. of Levittown was also a strong supporter of the law, noting that “the whole business model of hookah lounges is to create a social environment where you’re sharing a hookah pipe and get 200 ‘hits.’”

“It doesn’t carry the odor of cigarettes and as a parent you can’t detect it on a child. It’s so important to nip this in the bud,” he said.

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Frank Rizzo is a journalist at Anton Media Group. With decades of experience in the industry, he is exceptionally equipped to cover local politics, business and other topics that matter to readers.

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