NY Trial Court Dismisses Criminal Charges for Sign Ordinance Violation

This post was authored by Amy Lavine, Esq.

 Zoning ordinances are often enforced through criminal actions, but the procedural requirements tend to be stricter than in civil enforcement actions and defects may result in the charges being thrown out. This was the case in a 2019 criminal action brought against a gas station owner in Rye, New York for maintaining a sign without a valid permit. People v Vera & Magda Realty Corp., 2019 NY Slip Op 32650(U) (N.Y. City Court, City of Rye, Westchester County August 29, 2019).

The court explained that “a valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution,” and “in order for an information to be facially sufficient, the factual part of the information (along with any supporting depositions accompanying it) must allege nonhearsay allegations of fact of an evidentiary character that establish, if true, every element of the offense charged.” With the exception of the hearsay requirement, which is waived if not timely raised during trial, the failure to comply with any of these requirements can be asserted at any time.

Applying these rules to the ordinance in this case, the court found that the information had to allege that a sign was constructed or maintained on the defendant’s property in the City of Rye, and that the sign did not have a valid permit. The information filed by the building inspector, however, merely alleged that defendant “did willfully commit a[n unspecified] violation at the property….” It did not explain how the defendant was responsible, however, nor did it state the particular violation that was committed, and it accordingly had to be dismissed as facially insufficient. As the court explained, the “the bald, conclusory allegation that the defendant committed a violation does not suffice. The information does not specify the offending signs, nor how the illuminated gas price signs at the gas pumps or the freestanding sign are in violation of the law. It does not assert there was no permit for either sign.”

Although it was unnecessary for resolution of the case, the court also addressed various arguments raised by the defendant. On the defendant’s first point it found that the sign, which displayed illuminated gas prices and was mounted on a freestanding pole, did not qualify for the ordinance’s exemption for “informational signs” since the ordinance specifically limited informational signs to the owner’s name, phone number, location and/or hours of operation and required them to be placed on a window or door. The court also rejected the defendant’s claim that it was not responsible for the sign, which had been installed by its gas station tenant, because another provision in the city code specifically provided that property owners would be considered responsible for all signs displayed on their property.

The court agreed with the defendant, however, that the city’s sign ordinance would be preempted to the extent that it conflicted with a state law requiring gas stations to post price signs on their pumps. It mentioned on this point that “the apparent problem with the price signs on the gas pumps is due to them appearing illuminated in red where Code section §165-4(H)(3) restricts illumination to appear white when illuminated. This restriction makes little sense3 as a matter of optics since white contains red within its spectrum and red light is less visible than white light. It seems more likely the enacting City Council was concerned with the intensity of the lighting rather than its color. Perhaps, the City Council might consider regulating light intensity rather than color, thus legalizing the gas pump signs.”