The Town of Hempstead’s attempt to strictly enforce a 1978 law has led to pushback and a legal challenge from gasoline service centers and their associations. The law, which mandates that dealers provide free compressed air to motorists seeking to inflate tires, was amended last year to ensure better compliance; Supervisor Anthony Santino maintained that too many dealers were circumventing the original intent.
Opponents charge that the law [and its amendment] violates both the state and federal constitutions and imposes undue burdens on businesses. The dispute is making its way through the courts.
In a news release unveiled just before the amendment was introduced in March 2016, Santino asserted that “Recently, local motorists have complained that some area gas stations have not been forthcoming in letting them know that free air was available to fill up car tires. Instead, these stations had prominently visible air compressors that required a fee for use. What’s more, some gas station employees would offer excuses or be evasive when confronted with requests for free air. Armed with my law, our residents would get ‘free air, not hot air.’ ”
The 1978 regulation, according to Santino, “does not expressly prohibit station owners charging for air while having free air available upon request.”
Many of the same people who spoke at the public hearing on the amendment in March 2016 also appeared at the recent March 7 meeting, in which the town board delayed a vote on changing the amendment to drop a 24-hour requirement and changing it to when the gasoline station is open for business.
Lawrence Culley, an attorney for the Gasoline and Automotive Service Dealers Association (GASDA), stated that many members will be affected by the amendment—and challenged its legality.
“A number of expert attorneys we consulted have examined the legislation. We unanimously feel this is pre-empted by state law. This is not a proper use of the zoning statutes,” he testified. “It will affect many of our members. These are small businesses, mom and pop operations.”
The legislation, he stated, “should be soundly defeated.”
Wayne Bombardiere, the deputy executive director of GASDA, said, “There’s not a lot of money [in compressed air] in terms of the profit to be made. But there is a cost factor involved with equipment and the maintenance going forward.”
He went on to mention the abuse of the machines by some members of the motoring public, and how this drives up the price of operating them.
Carol Hoffner, along with her husband and son—both named Anthony—has been operating a three-generation gas station in Valley Stream. She was pleased that the 24/7 requirement had been dropped, but asserted, “Our current air machines cannot be modified to meet these [new regulations] and it will force us to buy a new machine, which will cost $2 to $3,000. That’s quite a burden to a small business.”
Hoffner referred to the increase in taxes due to the ruling by the Town of Hempstead IDA regarding Green Acres. With the new regulation, she imagined a worst-case scenario in which “we have to shut down the [61-year firm]. We’re a small business. We need a break.”
Erica Dubno, an attorney based in New York City, represents GASDA, the Long Island Gasoline Retailers Association and Floral Park-based Service Station Vending Equipment and its founder, William McCabe Sr.
Dubno mentioned the pending litigation, and stated that “on January 5, 2017, [Supreme Court] Justice Karen Murphy granted a preliminary injunction against the town.”
“The town has engaged outside counsel to defend itself against these challenges,” Dubno went on. “Our law firm obtained, via [FOIL], the billing invoices that the town has paid to defend the 2016 amendment. From Sept. 22 to Nov. 14, 2016, it was billed $30,376.23 to defend this law….The town is laying people off right now. There are serious tax and budget issues going on.”
Even with the removal of the 24/7 requirement, suggested Dubno, the law remained unconstitutional, and detailed for her listeners the consequences of strict enforcement.
“It subjects small business owners to criminal charges,” she said. “Carol Hoffner can go to jail for 15 days if there’s anything wrong with the [air machine],” and fines can range up to $10,000 per week, as opposed to $25 under state law.
The town, Dubno summed up, “is exceeding its authority under the zoning and police powers…[the law is] a violation of the Fifth and 14th amendments to the Constitution, as well as Article I of the New York State Constitution. It violates property owners’ rights to full protection and due process.”
William McCabe of Service Station Vending Equipment said he has about 200 machines in the town. He builds them at a plant in Copiague using what he called high quality components made in the USA. His firm installs and maintains its machines at no charge and splits the revenue with the dealer. McCabe brought components to the speakers’ table and explained how much they cost and how often they needed replacing—frequently on account of abuse and vandalism.
McCabe and his son Bill Jr. emphasized the safety issues, detailing in handouts to the town board numerous instances of air machines that constitute dangers to customers and gas station operators alike. They talked of deaths and serious injuries from unsafe dispensers. In addition, they touted their reliable service and quick response, in contrast to big firms that did not repair their equipment in a timely manner.
Bill Sr. was blunt about the consequences to his firm—which employs up to 30 people—if the law passes.
“I have to remove all my machines,” he told Anton Media Group.
Of the concept behind the law he said, “You can’t force a business to provide a service for free that costs it money.”
McCabe founded the firm in 1983, and said the 1978 law was “on the books but under the radar.” His business model depended a fee-based system, and in 1991 he reached an agreement with the town to put signage on his dispensers that free air was available for the asking (see copy of the agreement at right).
It was to end such a loophole that Santino introduced the amendment last year.
Felix Procacci of New Hyde Park is a frequent critic of councilmembers.
“You guys demonstrated no legal basis for this law,” he charged. “In the meantime, you’re imposing severe litigation costs on the plaintiffs, and the taxpayers.”
He added, “You made your decision before you even got here. If you don’t listen to the people and take our evidence and what we present to you and then make an informed choice…that’s not what you did with this free air business. You never talked to trade groups. You came here to vote for this law no matter what anyone said.”
The amendment first came up at the March 8, 2016 meeting, when an agenda item resolved to call a public hearing on March 29, 2016 to propose “an amendment of Section 336.G (3) of Article XXXIII of the Building Zone Ordinance in relation to prohibiting Coin-Operated or other Fee-Based Air Compressors at Gasoline Service Stations.”
At that 2016 meeting, Procacci asked why the amendment was being proposed.
“What we are doing, here, is tightening [the 1978 law] up to prohibit the installation of air machines with coin slots,” Santino answered. “They would have to just be the old-fashioned ones that work without a coin slot. They just work. The free air will actually be free. Because the law, as it existed, was being violated, essentially, that made it very onerous for somebody to get the free air.”