COM 0401.005 1996-1998 - Laserfiche WebLink

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Dominic Yagong, Ch 31 July 1997 Page 3 In Fav's Incorporated v. New York State Department of Health, 645 NYS 2d. 995 (Misc 1996), where enforcement of the prohibition of the sale of tobacco products to minors relied wholly on complaints lodged by an anti-smoking activist group, the court went even further, finding that, no matter how praiseworthy the intention, an impermissible delegation of govermental authority had occurred. A contrary result was reached in Provo v. Hansen, 585 P.2d. 461 (Ut 1978), a case involving an injunction from housing more than the permitted number of students in one dwelling. Even there, however, a dissent by the Chief Justice strongly criticized the practice of permitting known violations unless the neighbors object. I i at 463. In any event, this case, as it involves conduct not readily visible to the passerby, is plainly distinguishable. As pointed out by the Court in Klein (supra at 790), some cases are impracticable to enforce by government initiation. Where, however, as in sign violations, the alleged violation is "open and notorious, it is the obligation of the legally instituted enforcing body to establish some adequate method to ensure that the guarantee of equal protection under the law...is met." Ibid at 791. To summarize, while I do not believe that the applicant has established the case for discrimination in enforcement of the sign ordinance, the present reported practice of responding only to complaints is fraught with danger. Should the requested variance be denied, it is strongly recommended that enforcement be undertaken against the other violators in the area, some of which are named by the applicant. To close our eyes to the obvious, and proceed against only one of a known group of violators, merely because someone complained, is "an unseemingly state of affairs openly inviting discrimination and harassment of one group by another". People v. Acme Markets, 334 NE 2d 555, 558 (NY 1975). Sincerely, ~KICHARD D. WURDE N: Corporation Cowl`s RDW:1679Lbre