Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mamakos v. Town of Huntington

United States District Court, E.D. New York

July 5, 2017

JEAN MAMAKOS and CITIZENS FOR FAIR HOUSING, INC., Plaintiffs,
v.
TOWN OF HUNTINGTON, HUNTINGTON TOWN BOARD, comprised of FRANK P. PETRONE, Supervisor, and MARK CUTHBERSON, SUSAN A. BERLAND, EUGENE COOK, and TRACEY A. EDWARDS, of the Town of Huntington, in their capacity as Councilmen, JOSEPH ROSE, Interim Director of the Department of Public Safety of the Town of Huntington, DEPARTMENT OF PUBLIC SAFETY OF THE TOWN OF HUNTINGTON, and TERRANCE MCNALLY, Fire Marshal of the Town of Huntington in his official capacity, Defendants.

          ORDER

          SANDRA J. FEUERSTEIN, UNITED STATES DISTRICT JUDGE

         I. Introduction

         On October 17, 2016, plaintiffs Jean Mamakos (“Mamakos”) and Citizens for Fair Housing, Inc. (“CFH”) (collectively, “plaintiffs”) commenced this action against defendants Town of Huntington (“the Town”); the Huntington Town Board, comprised of Frank P. Petrone, the Town Supervisor, and councilpersons Mark Cuthberson, Susan A. Berland, Eugene Cook and Tracey A. Edwards; Joseph Rose (“Rose”), as the interim director of the Department of Public Safety of the Town of Huntington; the Department of Public Safety of the Town of Huntington (“DPS”), and Terrance McNally (“McNally”), in his official capacity as the fire marshal of the Town of Huntington (collectively, “defendants”), pursuant to 42 U.S.C. § 1983 (“Section 1983”), alleging, inter alia, that certain provisions of the Town's Residential Rental Permits ordinance (“the RRP Law”), codified in Sections 160-21 through 160-30 of article III of chapter 160 of the Town Code of the Town of Huntington (“the Town Code”) are facially unconstitutional. Defendants now move to dismiss plaintiffs' claims in their entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. For the reasons set forth below, defendants' motion is granted to the extent set forth herein.

         II. Background

         A. Factual Allegations[1]

         Mamakos owns rental homes at 39 East Carver Street, Huntington, New York, “which currently maintains [sic] valid rental permits, ” and property at 192 Nassau Road, Huntington, New York, “each one of which is subject to the [RRP Law].” (Complaint [“Compl.”], ¶ 6).

         CFH is a not-for profit corporation “formed pursuant to Section 402 of the Not-for-Profit Law of the State of New York[, ]” for the purpose of “defend[ing] and preserv[ing] the legal rights of landlords in the Town . . . .” (Compl., ¶ 7). “[E]ach and every one of the 15 members of [CFH] are property owners who rent properties in the Town . . . subject to the [RRP Law] and represent at least 30 rental properties.” (Id.) According to plaintiffs, “[a]ll of the majority of the members of . . . .[CFH] have paid rental inspection fees to the Town . . . .” (Id.)

         Plaintiffs allege that “[i]n fulfilling its duties [as a municipal corporation], the Town, its' Council Members, the [DPS], and the Office of the Fire Marshal [‘OFM'], including without limitation any and all other Departments, are involved in the Permit Process[, ]” (Compl., ¶ 8); and that the DPS and the OFM “implemented the [RRP Law] and/or enforced the unconstitutional restrictions accomplished through the Town's policies and practices described [t]herein.” (Id., ¶ 10).

         The RRP Law challenged by plaintiffs was enacted on May 10, 2016 and amended an earlier version that was in effect until 2015. (Compl., ¶ 13). Section 160-1 of the RRP Law sets forth the legislative intent and provides, in pertinent part, as follows:

(A) The Town Board intends to preserve the health, safety and welfare of residents within the jurisdictional limits of the Town . . . exclusive of its Incorporated Villages by establishing a permitting system which will enhance the delivery of municipal services, such as sanitation and code enforcement services, and emergency services, such as fire, water and police services when such services are needed, and effectively aid in the maintenance of the peace and good order and a tool for the establishment of efficient planning.
(B) In addition, the welfare and safety of our residents is threatened by rental properties that are occupied while infested with rodents and other creatures, lack sufficient heat, ventilation, light or other necessities, and are otherwise uninhabitable or blighted or threaten the quality of life in the community by creating nuisances or disrupting the peace and good order.

         Town Code, art. I, § 160-1.

         Section 160-22(A) of the RRP Law provides:

(1) It shall be unlawful for the owner or managing agent to lease or rent, or offer to lease or rent, any rental property or dwelling unit for which a valid rental permit has not been issued pursuant to this article. It shall be immaterial whether or not rent or any other consideration is paid or tendered to the owner or managing agent by the occupant of such dwelling unit or rental property; and
(2) It shall be unlawful for the owner or managing agent to submit for filing pursuant to this chapter false or misleading statements or information, or to submit for filing a certification or other document generated by one who did not inspect all portions of the rental property[.[2]

         Town Code, art. III, § 160-22(A). “Rental Property” is defined in the RRP Law as follows:

“Dwelling unit(s) in one and two family homes, multiple residences, dormitories, and mixed-use occupancy buildings in any zoning district which are occupied for habitation as a residence by persons other than the owner or the owner's immediate family, and for which a fee or other compensation is received by the owner or managing agent, directly or indirectly, in exchange for such residential occupation. The term ‘rental property' shall exclude properties used solely for nonresidential purposes; one family homes which continue to be the primary and permanent residence of the owner but are leased or occupied by one other than the owner or owner's immediate family for six (6) months or less in any calendar year; two-family homes where the owner or a member of the owner's immediate family resides in one of the two dwelling units, legal habitable dwellings detached from the main residence of the owner or owner's immediate family on the lot; multiple dwellings where the owner or owner's immediate family reside on site; large multiple residence developments or communities having approved bylaws and a homeowner's association, board or similar management organization on-site with jurisdiction over rental property; those having valid accessory apartment permits; any property owned and/or operated by the United States, the State of New York, the County of Suffolk, Town of Huntington and their respective agencies and political subdivisions; any property owned or managed by the Huntington Housing Authority, the Huntington Housing Authority Mortgage Banking Corporation, and the Huntington Community Development Agency.”

         Town Code, art. III, § 160-21[3].

         Section 160-23 of the RRP Law provides that the “presence or existence of any” of the twelve (12) conditions set forth therein, e.g., more than one (1) mailbox, gas meter or electric meter at the premises, separate entrances, etc., “shall create a rebuttable presumption that rental property or a dwelling unit is rented.” Town Code, art. III, § 160-23.

         Pursuant to the RRP Law, “[a] rental permit and renewal thereof shall be valid for a period of two (2) years from the date of issuance unless sooner terminated.” Town Code, art. III, § 160-24.

         Section 160-25(A) of the RRP Law provides, in relevant part:

“The owner or managing agent of rental property or a dwelling unit shall apply for a rental permit before the property or dwelling unit is advertised for rent or if the vacancy is not advertised then such permit shall be obtained before the premises are leased or occupied by one other than a member of the owner's immediate family. . . . Failure to file an application or to apply within the specified period shall be deemed a violation of this article.”

         Town Code, art. III, § 160-25(A).

         Section 160-25(C) provides, in relevant part:

“Applications for rental permits shall be on forms provided by the [DPS] and signed by each owner or managing agent of the property. A non-refundable application fee of seventy file ($75.00) dollars [sic] per property shall be payable upon application. . . . Each application shall include the following: (1) The information set forth in § 160-13(A) as is applicable in the discretion of the Director of Public Safety, and § 160-13(B); and . . . (6) A signed and notarized certification in a form acceptable to the Director of Public Safety by each property owner or managing agent attesting to the total number of persons occupying each rental property or rental unit owned or managed by the registrant as of the date of registration; and . . . (9) Such other information and/or documentation deemed necessary by the Director of Public Safety.”

         Town Code, art. III, § 160-25(C).

         Section 160-25(D) of the RRP Law provides that “[i]f the status of the information changes during the course of any calendar year, it is the responsibility of the owner or managing agent to submit such changes to the [DPS] in writing within thirty (30) days of the occurrence of such change, ” Town Code, art. III, § 160-25(C); and Section 160-25(E) provides that the “[f]ailure of an owner or managing agent to secure a rental permit or to amend the information, or to do so within the period provided shall constitute a violation of [the RRP Law].” Id., § 160-25(E).

         Section 160-26(A) of the RRP Law provides that “[a] non-refundable permit fee of four hundred and seventy-five ($475) dollars [sic] per property shall be payable before a rental permit or renewal permit is issued[, ]” Town Code, art. III, § 160-26(A); and Section 160-26(B) provides that “[a] late charge equal to two times the amount of the permit fee, prorated for the period of delay, shall be charged to owners and/or managing agents who fail to apply for a rental permit or renew their permits on a timely basis.” Id., § 160-26(B). In addition, Section 160-26(C) of the RRP Law provides that “[i]f the owner has requested that an inspection be performed by the Town instead of a licensed professional engineer or registered architect, a re-inspection fee of seventy-five ($75) dollars [sic] shall be charged if the property owner or his agent fails to appear for a scheduled inspection for a second time.” Id., § 160-26(C).

         Section 160-26(D) of the RRP Law provides:

(1) No permit or renewal thereof shall be issued unless the property is in compliance with all the provisions of the Code of the Town of Huntington, and meets the requirements of all applicable county, state and federal laws, codes, rules and regulations.
(2) No permit or renewal thereof shall be issued unless the property owner provides a certification from a professional engineer or registered architect licensed in the State of New York and containing their seal, or the certification of a Town ordinance/code enforcement officer, or of an independent state certified code enforcement official, attesting that the property at issue is in compliance with the Huntington Town Code, and meets the requirements of all applicable county, state and federal laws, codes, rules and regulations. Nothing in this article, except in the case of an emergency pursuant to § 160-48(C), shall be deemed to authorize the Town to conduct an inspection of any property without the consent of the owner or managing agent, if the dwelling unit or units are unoccupied, and if occupied, upon the consent of the occupant, owner or managing agent of the property in the absence of a warrant duly issued by a court of law.”

         Town Code, art. III, § 160-26(D) (emphasis added). Plaintiffs challenge the italicized language in that provision of the RRP Law as “self-serving, ” and allege that notwithstanding that “disclaimer clause[, ] . . . the property owners are coerced into complying without a warrant to protect their property and the income generated therefrom since the permits will either not be issued or will be revoked without said search.” (Compl., ¶ 94).

         Section 160-27 of the RRP Law provides:

“A rental permit may be renewed by application to the [DPS] as in the case of an original permit application, with payment of a non-refundable application fee of twenty-five ($25) dollars [sic] and the production of any documents deemed necessary by the Director. All applications for a renewal of a permit shall be filed before the expiration of the original permit, and are subject to the late charges set forth in § 160-26(B). A permit may only be renewed ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.