New York Skyline, Inc. v. City of New YorkNew York Skyline, Inc. v. City of New York
APPEARANCES OF COUNSEL
Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth I. Freedman, Francis F. Caputo, Mark Muschenheim and Melanie V. Sadok of counsel), for respondents.
OPINION OF THE COURT
Richter, J.
In this appeal, we are asked to decide whether the sale on public sidewalks of admission tickets to New York Skyride, a simulated helicopter trip around New York City, requires a general vendor license under
Petitioner New York Skyline, Inc. (Skyline) is an entertainment company that created and manages the New York Skyride, a simulated helicopter experience. The Skyride experience, which takes place on the second floor of the Empire State Building, includes a brief lecture about the Empire State Building followed by a 15-minute film narrated by actor Kevin Bacon. The film, which features music and special effects, takes visitors on a virtual helicopter ride over New York City and its landmarks.
Skyline has been operating Skyride since 1994, and currently employs 110 people, including 40 ticket agents; the company also independently contracts with another 27 ticket agents. Since 2003, these agents have marketed and sold tickets to Skyride on public sidewalks near the Empire State Building. The agents process the sales using small handheld devices that charge the customers’ credit cards and print the tickets. Approximately 60% of Skyline‘s ticket sales comes from selling tickets on the sidewalks.
At first, NYPD issued summonses that were returnable at the offices of respondent New York City Environmental Control Board (ECB), the agency that adjudicates violations of the general vending laws. In June 2011, NYPD escalated its enforcement strategy, and began arresting alleged violators, requiring them to appear in criminal court. Skyline alleges that 14 notices of violations or summonses have been issued and six ticket agents, including petitioner Calaif Parks, have been arrested for selling tickets without a general vendor license.
Petitioners commenced a
In a judgment entered October 17, 2011, Supreme Court denied the petition and dismissed the proceeding (2011 NY Slip Op 32548[U] [2011]). The court found that respondents’ determination that Skyline‘s agents require a general vendor license was rational, and that the sale of tickets to Skyride is the type of conduct that could be regulated by the general vending laws. The court also rejected petitioners’ constitutional and improper influence claims. We now reverse and conclude that the sale of admission tickets to Skyride on a public sidewalk does not require a general vendor license under the
Respondents do not argue that the Skyline admission tickets themselves constitute “goods” that come within reach of the statute. Indeed, any such argument would be unavailing. An admission ticket to an entertainment event is not a commodity in its own right, but is merely a license to enter the event (see Aaron v Ward, 203 NY 351, 355 [1911] [ticket for admission to a place of public amusement is a license]; Impastato v Hellman Enters., 147 AD2d 788, 789 [1989] [same]; People ex rel. Zvirin v Roxy Theatre, Inc., 8 NYS2d 92, 98 [Magistrates’ Ct 1938] [admission tickets to a theater are not merchandise]).
Instead, respondents argue that Skyline‘s agents are selling a “service,” namely the entertainment provided by the Skyride experience. Thus, the critical inquiry here is whether the Skyride experience is a “service.” When interpreting a statute, it is fundamental that a court “should attempt to effectuate the intent of the Legislature” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks omitted]). Since “the clearest indicator of legislative intent is
Because the statute does not define the term “service,” it should be construed in accordance with its common, everyday meaning (see Matter of Manhattan Cable TV Servs., Div. of Sterling Info. Servs. v Freyberg, 49 NY2d 868, 869 [1980]; see also
In arguing that Skyline provides a “service,” respondents present a strained and unnatural construction of that term. When one thinks of a “service,” as that word is ordinarily used, things like haircuts, home repair, house cleaning and car washes come to mind. Skyride is more appropriately characterized as a form of entertainment. “Entertainment” is defined as, inter alia, “a public performance designed to divert or amuse” (Webster‘s Third New International Dictionary, Unabridged [2002]). That is precisely what Skyride is—visitors are treated to a film featuring music, special effects and a simulated helicopter ride over the city.
Had the City Council intended to include “entertainment” within the reach of the general vending laws, it would have explicitly included that term in the statute. In fact, other state and local statutes show that lawmakers have made a distinction between the terms “service” and “entertainment.” For example,
In urging this Court to interpret the statute as encompassing Skyline‘s ticket sales, respondents point to certain statements of legislative intent in which the City Council identified street congestion as one of the justifications for enacting the laws (see e.g. Local Law No. 50 [1979] of City of NY § 1). Street congestion is not the sole reason these laws were passed; the City Council also pointed to unlicensed vendors’ failing to pay taxes, selling defective or counterfeit merchandise, and siphoning off business from taxpaying commercial establishments (see e.g. Local Law No. 40 [1988] of City of NY § 1). There is no evidence in the record, nor do respondents argue, that any of these considerations is applicable to Skyline‘s ticket sales.
The issue on this appeal is not whether preventing the sale of Skyride tickets might help in reducing sidewalk congestion.4 The question is whether Skyline‘s agents are selling “goods or services.” The expressed legislative intent does little to aid in that inquiry. Merely because one of the legislative purposes was to control street crowding does not mean that the City Council intended to include the sale of tickets to an entertainment event within the ambit of the statute if that sales process impacted the flow of pedestrian traffic on the sidewalk. We emphasize, however, that our holding is limited to the issue of whether Skyline ticket agents are general vendors under
Finally, in construing this statute, respondents urge us to defer to NYPD‘s interpretation of the statute that the sale of Skyride tickets requires a general vendor license. However, no deference is due because where, as here, “the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 285 [2009] [internal quotation marks omitted]). Since no fair reading of the statute leads to the conclusion that the Skyride experience, or the tickets themselves, constitute “goods or services,”
Accordingly, the judgment of the Supreme Court, New York County (Donna M. Mills, J.), entered October 17, 2011, denying the petition and dismissing the proceeding, should be reversed, on the law, without costs, the judgment vacated, and the petition granted to the extent of annulling and vacating respondents’ determinations as to the applicability of
Andrias, J.P., Saxe, Acosta, Freedman and Richter, JJ., concur.
Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered October 17, 2011, reversed, on the law, without costs, the judgment vacated, and the petition granted to the extent of annulling and vacating respondents’ determinations as to the applicability of