69 N.Y.2d 211 | NY | 1987
OPINION OF THE COURT
Sensitive to the reality that business is often conducted and professional contacts initiated and renewed in private clubs, the City of New York in 1984 adopted Local Law No. 63. The law is intended to prohibit discrimination in those clubs which, in essence, provide benefits to business entities and to persons other than their own members, thereby assuming a sufficient public character that they should forfeit the "distinctly private” exemption of the City’s Human Rights Law.
The New York City Human Rights Law (Administrative Code of City of New York tit 8) forbids invidious discrimination in "place[s] of public accommodation, resort or amuse
The need for this legislation, according to the extensive findings of the City Council, was to realize the City’s "compelling interest in providing its citizens * * * regardless of race, creed, color, national origin or sex * * * a fair and equal opportunity to participate in the business and professional life of the city”. The City Council found that business activity pervades clubs which have more than 400 members and regularly provide meals during which business is conducted. The Council further recognized that employers often pay the dues and expenses of their employees because the activities at the clubs help to develop the employers’ own business. In these circumstances, the Council concluded, denial of access to club facilities constitutes a significant barrier to the professional advancement of women and minorities since business transactions are often conducted in such clubs, and personal contacts valuable for business purposes, employment and professional advancement are formed.
Immediately after the Mayor signed Local Law No. 63, plaintiff New York State Club Association, Inc., a consortium of some 125 private clubs — many of which, according to plaintiffs affidavit, "intentionally have been organized along national origin, religious, ethnic and gender lines” — commenced this action against various City defendants for a judgment declaring Local Law No. 63 unconstitutional.
Plaintiffs primary contention on this appeal is that Local Law No. 63 violates the "home rule” provision of the New York State Constitution (art IX, § 2 [c]) because it is inconsistent with the State Human Rights Law (Executive Law § 290 et seq.), as construed by this court, and, therefore, constitutes an invalid exercise of the City’s police power.
A.
The constitutional home rule provision confers broad police power upon local government relating to the welfare of its citizens
Similarly, with respect to inconsistency, we have stated that there need not be an express conflict between State and local laws to render a local law invalid (Consolidated Edison Co. v Town of Red Hook, 60 NY2d, at p 108, supra). Rather, inconsistency "has been found where local laws prohibit what would have been permissible under State law or impose 'prerequisite "additional restrictions” ’ on rights under State law, so as to inhibit the operation of the State’s general laws” (id., quoting F. T. B. Realty Corp. v Goodman, 300 NY 140, 147-148 [citations omitted]).
The issues have been narrowed by the parties with the plaintiff having made two concessions. First, plaintiff does not question the City’s underlying authority to exercise the police power it possesses in the area of human rights (cf. Wholesale Laundry Bd. v City of New York, 17 AD2d 327, 328-329, affd 12 NY2d 998 [local law challenged on grounds of lack of home rule authority and as inconsistent]). Also important, plaintiff
We turn, then, to an examination of the State statutory scheme, there being no serious question that the City may indeed regulate in this area so long as the regulation is consistent.
B.
The State Human Rights Law begins with the declaration that "[i]t shall be deemed an exercise of the police power of the state for the protection of the public welfare, health and peace of the people of this state, and in fulfillment of the provisions of the constitution of this state concerning civil rights” (Executive Law § 290 [2]). The State statute forbids certain invidious discrimination by "any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof’ (Executive Law § 296 [2] [a]). It defines "place of public accommodation” "inclusively and illustratively, not specifically” (Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401, 409, rearg dismissed 60 NY2d 682, 702), setting forth an extensive list of examples of facilities that fall within the ambit of the statute (Executive Law § 292 [9]). Notably, in language identical to that employed in the City’s Human Rights Law, the State law excludes from the definition of "public accommodation” "any institution, club or place of accommodation which is in its nature distinctly private” (Executive Law § 292 [9]). Unlike the City
In the face of this omission and in the absence of any claimed or apparent legislative design to preempt the area of antidiscrimination legislation, the precise question presented is whether the police power to govern with respect to public welfare, health and peace — inherent in the State, yet also delegated to municipalities under the Constitution’s home rule provision — permits the City to define for itself when a club loses its "distinctly private” nature.
People v Judiz (38 NY2d 529) presented a comparable problem. A provision of the State’s Penal Law (§ 265.01 [2]) prohibited the possession of, among other things, any imitation pistol "with intent to use the same unlawfully against another” (id., at p 531). We upheld the defendant’s conviction of possession of a toy pistol painted to resemble a real Luger pistol under a City ordinance which, by contrast, prohibited the possession or use of any toy or imitation pistol or revolver which substantially resembled an actual pistol or revolver; specific intent to use the toy weapon was not an- element of the local law (id., at pp 530-531). We held, first, that the State had not preempted the field, and, second, that the local law was not impermissibly inconsistent, reasoning that the Penal Law failed to define the term "imitation pistol”: the State law "evince[d] an intent to cover, quite broadly, most of the possible categories of weapons for which it deem[ed] some sanction is necessary when these are used with illegal intent, [but] the city ordinance is aimed at the prevention of a more particular type of abuse” (id., at p 532; see also, Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241, 247, affd 61 NY2d 942).
Similarly, in the present case, the City possesses broad home rule power and the State concededly has not preempted the area of antidiscrimination. That the field has not been preempted must mean that the Legislature would permit the City, consistent with both the letter and spirit of the State Human Rights Law, to regulate on its own in the face of the more particular situation it has found in its private clubs (see, People v Cook 34 NY2d 100, 109, supra; People v Judiz, 38 NY2d 529, 532, supra). Indeed, the State’s failure to define the term "distinctly private” suggests a legislative intent to allow local governments to enact pursuant to the municipal home rule power definitions that are not inconsistent with the meaning of this broad term.
C.
The hallmark of the private club, we said in Power Squad
Indeed, plaintiff goes too far when it asserts, relying on Wholesale Laundry Bd. v City of New York (12 NY2d 998, affg 17 AD2d 327, supra), that Local Law No. 63 is inconsistent with Power Squadrons because activity which arguably would be permitted under State decisional law is prohibited by the local law. As we stated in People v Cook (34 NY2d 100, 109, supra): "This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory”. Rather, the general principle set forth in Wholesale Laundry applies only when the Legislature has "evidenced a desire that its regulations should pre-empt the possibility of varying local regulations” (id.; see, Consolidated Edison Co. v Town of Red Hook, 60 NY2d, at pp 107-108, supra [observing that inconsistency may exist where local laws "prohibit what would be permissible under State law * * * so as to inhibit the operation of the State’s general law”]) or
Finally, we reject plaintiff’s contention that the local law impermissibly shifts the onerous burden of establishing exemption on the clubs (see, Matter of United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d, at p 412, supra). Any allocation of the burden of proof effected by the enactment bears a reasonable relationship to the police power and is reasonably calculated to achieve by objective means the legitimate purpose of ensuring that only "distinctly private” clubs be exempt (see generally, D’Angelo v Cole, 67 NY2d 65, 69; People v Cook, 34 NY2d 100, 107, supra).
II.
We next address plaintiff’s argument that Local Law No. 63 violates its members’ rights to privacy, free speech and association under the Federal Constitution.
Plaintiff also argues that Local Law No. 63 violates its freedom of expressive association or the freedom to engage as a group in pursuit of a wide variety of "political, social, economic, educational, religious, and cultural ends” (Roberts v United States Jaycees, 468 US, at p 622, supra; see, Griswold v Connecticut, 381 US 479, 483; N. A. A. C. P. v Alabama, 357 US 449, 460-461). It is undisputed on this record that plaintiffs constituent members have been organized "to provide a comfortable and congenial social atmosphere * * * and to engage in political, academic, social and/or recreational interchange with one another on a regular and continual basis”. But compelling governmental interests, unrelated to the suppression of ideas — here the City’s strong public policy to eliminate discrimination against women and minorities (see, Legislative Declaration, Local Laws, 1984, No. 63 of City of New York § 1; Administrative Code § 8-101) — manifestly justify some infringement (Roberts v United States Jaycees, 468 US, at p 624, supra). Indeed, the City has a compelling interest in assuring to women and minorities equal access to "advantages” and "privileges” (Administrative Code § 8-107 [2]) such as " '[leadership skills, * * * business contacts and employment promotions’ ” (Roberts v United States Jaycees, 468 US, at p 626, supra; see generally, Burns, Exclusion of Women from Influential Men’s Clubs: The Inner Sanctum and the Myth of Full Equality, 18 Harv CR-CL L Rev 321 [1983]; Goodwin, Challenging the Private Club: Sex Discrimination Plaintiffs Barred at the Door, 13 Sw U L Rev 237, 280-284 [1982]).
Moreover, through Local Law No. 63, the City has employed the least restrictive means to achieve its ends (see, Roberts v United States Jaycees, 468 US, at p 626, supra.). The law evinces an intent not to dictate the selection policies or activities of the private clubs except to the extent necessary to ensure that they do not automatically exclude persons from membership or use of the facilities on account of invidious discrimination (Legislative Declaration § 1). Notably, plaintiff has made no showing that its members’ free speech rights will be abridged — either in altering the policies or functions of the various organizations (see, Roberts v United States Jaycees, 468
Finally, although plaintiff’s constituent members have a right to free speech and to association, they 1‘ack the right to practice invidious discrimination against women and minorities in the distribution of important business advantages and privileges (see, Roberts v United States Jaycees, 468 US, at p 628, supra; Runyon v McCrary, 427 US 160, 175-176; Norwood v Harrison, 413 US 455, 469). Any incidental intrusion on protected free speech rights accomplished by the local measure is no greater than is necessary to fulfill the State’s legitimate purpose in extending to them equal opportunity in employment (see, Roberts v United States Jaycees, 468 US, at pp 628-629, supra).
We have considered plaintiff’s other arguments and find them to lack merit. Accordingly, the order of the Appellate Division should be affirmed.
Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.
Order affirmed, with costs.
.See, Legislative Declaration, Local Laws, 1984, No. 63 of City of New York § 1.
.NY Constitution, art IX, § 2 (c) provides in pertinent part: "In addition to powers granted in the statute of local governments or any other law * ** * (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government * * * The government, protection, order, conduct, safety, health and well-being of persons or property therein” (i.e., the police power).
.Although plaintiff commenced this action on these theories under both State and Federal Constitutions, it now only claims violation of Federal law. Accordingly, we do not address any allegation of violations under analogous provisions of the State Constitution.
Nor do we address plaintiff’s allegation below that Local Law No. 63 constitutes an unlawful bill of attainder (US Const, art I, § 10) because it has abandoned this argument as a ground for reversal.