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STONER v. MILLER

May 17, 1974

Amelia STONER et al., Plaintiffs,
v.
William A. MILLER, Individually and as acting City Manager of Long Beach, Long Island, New York, Defendant


Bruchhausen, District Judge.


The opinion of the court was delivered by: BRUCHHAUSEN

BRUCHHAUSEN, District Judge.

This is a class action, brought pursuant to Rule 23 of the Federal Rules of Civil Procedure. It is a civil rights suit, which seeks injunctive and declaratory relief, pursuant to 28 U.S.C. Sections 1651, 2201, 2202, and 42 U.S.C. ยง 1983.

 The plaintiffs challenge the constitutionality of certain sections of Ordinance No. 1195/1973 promulgated by the City of Long Beach. It is entitled:

 "Ordinance Amending the Municipal Code of the City of Long Beach Regulating the Operation, Occupancy and Life Safety of Hotels, Boarding and Rooming Houses."

 The suit does not challenge the authority of Long Beach to enact legislation, the purpose of which is for the health, safety, and welfare of its inhabitants. It challenges the exercise of that power, concerning sections 5-705, 5-706, portions of 5-710, 5-715 and 5-718 of the ordinance. In substance, the sections challenged relate to the registration of the mentally ill. Those patients requiring continuous medical or psychiatric services shall not be registered; that such services shall not be provided by the proprietor; that in the event such services are required, they shall be purchased by the resident, that an interview with the prospective residents is required to determine if the facility can meet their needs; that certain personal records shall be maintained for any person registered and remaining in excess of fifteen days.

 Section 5-706 provides for the termination of the occupancy, and Section 5-718 provides for penalties for violation of any of the provisions of this ordinance.

 Subsequent to the filing of the complaint, motions on behalf of The Mental Health Association of New York and Bronx Counties, American Psychiatric Association, National Association For Mental Health, New York State Committee of The National Association for Mental Health, National Council of Community Mental Health Centers were made to intervene as plaintiffs or to appear as amicus curiae.

 The Attorney General of the State of New York and the United States of America moved for an order granting leave to appear as amicus curiae in support of the plaintiffs' position.

 The Court denies the motions for intervention, however, leave is granted to all parties to appear as amicus curiae.

 It is alleged that the plaintiffs, Amelia Stoner and Patrick O'Neill are presently residing in the hotels in Long Beach. The plaintiffs, Jean Denerstein, Gladys DiGrande, and Pauline Sarlon are currently patients of a state hospital for the mentally ill, and upon release therefrom in the near future, desire to reside in Long Beach. They all require some psychiatric treatment, with the exception of Thomas J. Keane who requires continuous medical services. Furthermore, the plaintiffs, Amelia Stoner, Patrick O'Neill and Thomas J. Keane are subject to eviction, and the plaintiffs, Jean Denerstein, Gladys DiGrande, and Pauline Sarlon are precluded from registering within Long Beach, pursuant to this ordinance.

 The plaintiffs seek injunctive and declaratory relief. The defendant seeks an order that the plaintiffs are not proper parties to maintain this class action and/or for an order dismissing the complaint on the ground that the complaint fails to state a claim against the defendant.

 The position of the defendant is untenable.

 In Eisen v. Carlisle & Jacquelin, 391 F.2d 555, at page 563 (Cir. 2), the Court held in part:

 
"* * * Indeed, we hold that the new rule should be given a liberal rather than a restrictive interpretation, Escott v. Barchris Construction Corp., 340 F.2d 731, 733 (2d Cir. 1965), cert. denied 382 U.S. 816, 86 S. Ct. 37, 15 L. Ed. 2d 63 (1966), and that the dismissal in limine of a particular proceeding as not a proper class action is justified only by a clear showing to that ...

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