author: Simons, J.

text:
    The People of the State of New York, Respondent, v Dennis Landy, Appellant.
    Argued May 5, 1983;
    decided June 30, 1983

      POINTS OF COUNSEL

      Michael G. Sileo for appellant.
    I. The court improperly denied appellant’s motion to suppress all physical evidence. (Terry v Ohio, 392 US 1; People v DeBour, 40 NY2d 210; People v Lypka, 36 NY2d 210; People v Elwell, 50 NY2d 231; People v Garafolo, 44 AD2d 86; People v Martinez, 71 AD2d 905; People v Pepitone, 48 AD2d 135, 39 NY2d 907; People v Berrios, 28 NY2d 361.) II. The Trial Judge erred in permitting appellant to make a “pro se” closing argument to the jury. (Argersinger v Hamlin, 407 US 25; Gideon v Wainwright, 372 US 335; People v McIntyre, 36 NY2d 10; People v Allen, 39 NY2d 916; McKee v Harris, 485 F Supp 866.) III. Appellant’s plea and sentence on Indictment No. 1210/79, entered subsequent to his conviction after trial, on Indictment No. 1998/78 should be reversed. (People v Rogers, 48 NY2d 167; People v Clark, 45 NY2d 432; People v Schaaff, 77 AD2d 607.)

      John J. Santucci, District Attorney (David M. Berck and Richard G. Denzer of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The switchblade knife and the stolen credit cards were properly received in evidence; the motion to suppress was properly denied. (People v McRay, 51 NY2d 594; People v Wharton, 46 NY2d 924; People v Alexander, 37 NY2d 202; People v Oden, 36 NY2d 382; People v Harrison, 57 NY2d 470; People v Rodriguez, 52 NY2d 483; People v Elwell, 50 NY2d 231; People v Hanlon, 36 NY2d 549; People v Jenkins, 47 NY2d 722; People v Lypka, 36 NY2d 210.) III. Defendant knowingly and intelligently waived his right to counsel at trial. (Faretta v California, 422 US 806; People v Coleman, 43 NY2d 222; Johnson v Zerbst, 304 US 458; United States ex rel. Martinez v Thomas, 526 F2d 750; United States v Calabro, 467 F2d 973; United States v Tompkins, 623 F2d 824; United States v Duty, 447 F2d 449; People v Allen, 39 NY2d 916.) IV. The court properly accepted defendant’s plea of guilty. (People v Nixon, 21 NY2d 338; North Carolina v Alford, 400 US 25; People v Friedman, 39 NY2d 463; McMann v Richardson, 397 US 759.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from two judgments. The first convicted him after a jury trial of criminal possession of a dangerous weapon, third degree (a switchblade knife, as a second offense [see Penal Law, § 265.02, subd (1)]), and nine counts of criminal possession of stolen property, second degree (credit cards). The second judgment convicted him upon his plea of guilty to attempted burglary in the second degree. He has been sentenced to concurrent two- to four-year terms of imprisonment on both judgments.

On this appeal defendant contends that the first judgment must be reversed because the court erred in refusing to suppress the knife and credit cards and in permitting him to make a pro se summation to the jury. He seeks reversal of the second judgment because the plea, entered upon a promise of a sentence concurrent with those received in the first judgment, is “inextricably intertwined” with it (see People v Rogers, 48 NY2d 167) People v Clark, 45 NY2d 432; cf. People v Lowrance, 41 NY2d 303). There should be an affirmance.

The facts as found by the hearing court established that defendant was arrested on the morning of September 23, 1978, at approximately 4:00 a.m., near the corner of 110th Road and Merrick Boulevard, in Queens County. Police Officers Walter Travis and George Astarita were cruising the area in an unmarked police car when they recognized a parked car as one sought in connection with several burglaries in the neighborhood the previous week and described in police bulletins as a brown Plymouth, Pennsylvania license number 09487T and having a “very beat up” body. The officers stopped and approached the Plymouth. Officer Travis testified that as he did so he recognized defendant seated behind the steering wheel as fitting a description of the suspected burglar given him by investigating officers, i.e., a black male approximately 5 feet 5 inches to 5 feet 8 inches tall, weighing 125-140 pounds and of slim build. Officer Travis identified himself to defendant as a police officer and asked to see his driver’s license and registration. When defendant replied that he did not have his wallet, Travis asked him to step out of the car. When he got out, Travis observed two knives on the driver’s seat and in plain view. One was a switchblade. Travis asked the defendant what his name was and defendant stated it was Dennis Tandy. Travis then noticed something he described as small and black and which he was unable to identify, sticking out of defendant’s back pocket. Travis seized it and discovered it was a wallet. He again asked defendant if he had any papers for the car and when the defendant answered that he did not, Travis opened the wallet and found $60 in cash and several credit cards bearing the name of Milton Carter. Defendant was taken to Carter’s home nearby and the wallet and contents were identified by Carter as property stolen from him the preceding afternoon.

The principal issue on appeal is defendant’s claim of unlawful search. He contends that the information possessed by the police officers was hearsay and that under our decision in People v Elwell (50 NY2d 231), their observations at the scene were not sufficient to verify it and supply probable cause for the subsequent search and arrest. In Elwell, we held that: “the rule under our Constitution [is] that a warrantless search or arrest will be sustained only when the police observe conduct suggestive of, or directly involving, the criminal activity about which an informant who did not indicate the basis for his knowledge has given information to the police, or when the information furnished about the criminal activity is so detailed as to make clear that it must have been based on personal observation of that activity” (People v Elwell, supra, p 241; and see People v Rodriguez, 52 NY2d 483).

Since none of the conduct observed was “suggestive of, or directly” related to the criminal activity, nor was any of the hearsay information related to the police officers “so detailed as to make clear it must have been based on personal observation of that activity”, defendant contends that the officers lacked probable cause for the search and arrest.

Preliminarily, the People contend that the challenge to the officers’ basis of knowledge was not preserved for review. We think it was. Defendant’s omnibus motion asked for a hearing to suppress physical evidence obtained as the result of an unlawful search and seizure pursuant to CPL 710.20. It did not challenge the hearsay information on which the police officers acted because defendant did not know the basis upon which they had acted. The suppression hearing was held on three separate days, however, April 17, May 2 and May 10, 1979, and when it became apparent on the first day of the hearing that the officers relied on the radio bulletin and information acquired from other officers, defense counsel informed the court that she challenged the officers’ conduct pursuant to People v Lypka (36 NY2d 210) and that she sought an offer of proof by the People to support the hearsay information they relied upon in making the search and arrest. Thus, the District Attorney had early notice of defendant’s claim and an opportunity to come forward with the necessary evidence. This was sufficient to preserve the point for appeal. To require that a Lypka claim must be specified in the omnibus motion or lost would only result in unnecessary work for the District Attorney and delay in the hearing while locating witnesses. Undoubtedly, in time, the claim would become a routine demand by defense counsel, made in an excess of caution and, in many cases, without any serious intention of challenging the officers’ basis of knowledge for the search.

Turning to the merits, we start with the rule that a search or seizure may only be sustained under Federal and State Constitutions if made upon probable cause (US Const, 4th Arndt; NY Const, art I, § 12). Probable cause may be supplied by hearsay information, however, and police officers are entitled to act on the strength of police radio bulletins or information acquired from fellow officers. Presumptively, such information is reliable and accurate. Once a defendant challenges the police action, the presumption of probable cause disappears and the knowledge of the sender may no longer be imputed to the officer. The People, to sustain their burden at the suppression hearing, must then demonstrate that the sender or sending agency possessed the requisite knowledge to justify the police conduct (People v Lypka, 36 NY2d 210, 213-214, supra; see, also, Whiteley v Warden, 401 US 560, 568). In the language of the two-pronged Aguilar-Spinelli rule, the People must establish both that the informant is reliable and the basis for his knowledge transmitted to the arresting officers (see Aguilar v Texas, 378 US 108, 114; Spinelli v United States, 393 US 410; cf. Illinois v Gates, 462 US _, 51 USLW 4709). Just as a police officer may not arrest without probable cause, so he may not do so relying on hearsay information lacking a sufficient basis of knowledge to constitute probable cause (see People v Rodriguez, 52 NY2d 483, 491, supra). The hearsay information may be verified sufficiently, however, by observations of officers at the scene of the arrest (see Draper v United States, 358 US 307; and cf. People v Elwell, 50 NY2d 231, supra). The issue here is whether the hearsay information, as verified, provided sufficient probable cause for the search and seizure or whether probable cause may be found from the observed attendant facts and circumstances.

It is apparent from the record that the People did not make any effort to demonstrate the factual basis for the information broadcast or that the sending agency possessed the requisite probable cause upon which the arresting officers could predicate a search and arrest. The hearing Judge, deciding the motion before our decision in Elwell and relying upon the rule in Draper v United States (358 US 307, supra), held, however, that the probable cause could be found upon verification of the hearsay information because the observations of the arresting officers confirmed the hearsay information received from headquarters in every respect: the color, condition and model of the car involved in the burglaries and the number and State of its license plate, and the physical description of the defendant. We decided in Elwell, however, that that is not enough. Probable cause cannot be founded on the hearsay information because the details of it which were verified were all descriptive of the car and the suspect and not at all related to the crimes of burglary or possession.

Nevertheless, we find the search and arrest lawful. The police have the right to stop a citizen and inquire of him if they have reasonable suspicion that criminal activity is afoot (People v Stroller, 42 NY2d 1052; People v Stewart, 41 NY2d 65; People v De Bour, 40 NY2d 210.). And this is so, we have held, even if the information prompting the inquiry is unsubstantiated hearsay (see People v Stroller, 42 NY2d 1052, supra; People v Stewart, 41 NY2d 65, supra; People v Bronk, 66 Misc 2d 932, 934, affd 31 NY2d 995). The courts below have found that the officers had reasonable suspicion justifying the stop. Indeed, defense counsel concedes as much. The confirmation of the information from police headquarters, the sighting of a single occupant in a “very beat up” parked car at 4:00 a.m. in an area which had recently suffered numerous burglaries surely provided the reasonable suspicion necessary to justify the police approaching defendant, seeking identification of him and, when he failed to produce it, asking him to step out of the car (People v De Bour, 40 NY2d 210, supra; and see Pennsylvania v Mimms, 434 US 106; People v Livigni, 58 NY2d 894; People v Diaz, 41 NY2d 876, cert den 434 US 939; cf. People v Harrison, 57 NY2d 470). Since the finding of reasonable suspicion has support in the record, no further review is warranted (People v Harrison, supra). Having lawfully stopped defendant for inquiry, the police then observed the switchblade knife in plain view and had probable cause for defendant’s arrest independent of any hearsay information from the station house and the subsequent search producing the stolen wallet was lawful. The fact that the body search which produced the wallet occurred before rather than after the arrest is immaterial as long as the search was founded upon probable cause (see People v Evans, 43 NY2d 160). Thus, unlike the police in Elwell, these officers had an independent basis to stop and inquire and it was augmented by what they saw which confirmed the hearsay information from the station house. They were not acting on the hearsay information alone.

Finally, we find no basis for reversal because of defendant’s pro se summation. At the conclusion of the trial, after having decided not to testify in his own behalf, defendant requested that he be permitted to waive the assistance of counsel and make his own summation. The court advised him that he had a constitutional right to represent himself but warned that he might not have the objectivity of an attorney and might be placing himself in an untenable position. When defendant acknowledged that he understood and that he wished to proceed pro se, the court granted his motion. The representation was limited to the summation and counsel was present throughout. Under the circumstances, the court sufficiently complied with the rules requiring that it inquire of the defendant and obtain defendant’s knowing and intelligent waiver of the assistance of counsel (see People v Sawyer, 57 NY2d 12, 21, cert den _ US _, 103 S Ct 830; People v Allen, 39 NY2d 916; People v McIntyre, 36 NY2d 10, 17).

In view of the affirmance of the first judgment, there is no occasion for us to consider defendant’s contention that the second judgment should be reversed.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur.

Order affirmed.

       In Illinois v Gates (462 US _, 51 USLW 4709), the Supreme Court overruled the Aguilar-Spinelli rule governing hearsay information and adopted a totality of the circumstances test. In view of our analysis, we have no occasion to consider the effect of that decision on our State rule set forth in People v Elwell (50 NY2d 231).


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    In the Matter of Herald Company, Inc., Respondent, v David Weisenberg, as Administrative Law Judge, Appellant, and New York State Department of Labor, Respondent.
    Argued June 8, 1983;
    decided July 7, 1983

      POINTS OF COUNSEL

      Theodore Weinstein for appellant.
    I. Appellant Weisenberg’s order excluding the press and public was proper under section 537 of the Labor Law. (Matter of Moses [Catherwood], 31 AD2d 772; Andrews v Cacchio, 264 App Div 791; Graham v Seaway Radio, 28 Misc 2d 706; Coyne v O’Connor, 204 Misc 465; Breuer v Bo-Craft Enterprises, 8 Misc 2d 736; Simpson v Oil Transfer Corp., 75 F Supp 819; Matter of Sorrentino [Corsi], 277 App Div 1073.) II. The decision of the court below fails to address the issue of section 537. III. The presence of the press at the hearing would substantially jeopardize the rights of claimants at that hearing. (California Human Resources Dept. v Java, 402 US 121.)

      S. Paul Battaglia for Herald Company, Inc., respondent.
    I. Access to quasi-judicial proceedings should be governed by the constitutional and statutory principles and procedures governing access to judicial proceedings. (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430;
      Matter of Capital Newspapers Div. of Hearst Corp. v Clyne, 56 NY2d 870; Matter of United Press Assn. v Vatente, 308 NY 71; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 443 US 368; Richmond Newspapers v Virginia, 448 US 555; Toker v Pollak, 44 NY2d 211; Lipton v Friedman, 2 Misc 2d 165; Wiener v Weintraub, 22 NY2d 330; Julien J. Studley, Inc. v Lefrak, 50 AD2d 162, 41 NY2d 881; County of Orange v Public Serv. Comm. of State of N. Y., 39 AD2d 311.) II. The court below correctly rejected respondent’s claim of “mootness”. (Le Drugstore Etats Unis v New York State Bd. of Pharmacy, 33 NY2d 298; East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129; Matter of Lyon Co. v Morris, 261 NY 497; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Jones v Berman, 37 NY2d 42; Matter of Gold v Lomenzo, 29 NY2d 468.)

      Robert Abrams, Attorney-General (.Peter H. Schiff and Nancy A. Spiegel of counsel), for New York State Department of Labor, respondent.
    Section 537 of the Labor Law does not require or authorize exclusion of the public and press from unemployment insurance hearings.
   OPINION OF THE COURT

Chief Judge Cooke.

An unemployment insurance hearing is presumed to be open, and may not be closed to the public unless there is demonstrated a compelling reason for closure and only after the affected members of the news media are given an opportunity to be heard. Although section 537 of the Labor Law prohibits the disclosure of certain information obtained by the Department of Labor from employees and employers, it does not provide a basis for closing the hearing itself.

This matter arose out of the resignations of two lawyers employed by the State Attorney-General in connection with an investigation of alleged political corruption in the Syracuse area. In resigning, the attorneys stated that their continued employment would violate the Code of Professional Responsibility. The actions received widespread news coverage. The two men subsequently applied for unemployment insurance compensation, but were denied benefits. They then sought a hearing before a referee pursuant to section 620 of the Labor Law.

When the hearing convened on May 4, 1981, the administrative law judge granted the two attorneys’ motion to close the hearing. Petitioner’s reporter requested a brief delay to permit petitioner’s counsel to appear and be heard in opposition to closure, but the administrative law judge denied the request and directed that representatives of the media be barred from the hearing room. Proceedings were then held behind closed doors. Before any decision on the lawyers’ unemployment compensation applications was issued, the determination denying benefits was withdrawn and the applications for benefits were granted. A request by petitioner for a transcript of the May 4 hearing was rejected.

Petitioner then brought this article 78 proceeding, seeking vacatur of the order of closure and access to the transcript. Special Term dismissed the petition (115 Misc 2d 426), but the Appellate Division reversed and granted the petition to the extent of directing that petitioner be furnished with a copy of the transcript (89 AD2d 224). This court now affirms.

As a preliminary matter, it is noted that the unemployment compensation hearing has been completed, and the petition is therefore technically moot insofar as it challenges closure of that hearing. Nonetheless, the significance of the issue involved, its likelihood of recurrence, and “the fact that orders of this nature quickly expire and thus typically evade review” dictate that this court address the issue (Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 437). With respect to petitioner’s request for a transcript of the hearing, the proceeding clearly is not moot.

Turning to the merits, the issue presented is whether there is any basis for setting aside the strong public policy in this State of public access to judicial and administrative proceedings. This policy has found expression through legislative language in a variety of contexts (see, e.g., Judiciary Law, § 4; Public Officers Law, §§ 84, 95). Where the Legislature has chosen to temper or abrogate the presumption of openness, it has done so in specific language (see, e.g., Judiciary Law, § 4; Public Officers Law, § 103), and these exceptions have been strictly construed by the courts (see People v Jelke, 308 NY 56, 65).

The administrative law judge, appealing, contends that just such an exception was created by section 537 of the Labor Law. In relevant part, subdivision 1 of section 537 provides that “[information acquired from employers or employees pursuant to this article shall be for the exclusive use and information of the commissioner in the discharge of his duties hereunder and shall not be open to the public nor be used in any court in any action or proceeding pending therein unless the commissioner is a party to such action or proceeding, notwithstanding any other provisions of law.” Subdivision 2 makes it a misdemeanor for any officer or employee of the State to disclose such information “without authority of the commissioner or as otherwise required by law”.

Section 537 does not require closure of hearings at which claimants present their cases for unemployment benefits. The section must be read in context with the other provisions of the unemployment insurance program as set forth in article 18 of the Labor Law. That article authorizes the commissioner to obtain comprehensive data from employers regarding such matters as the number of employees and their salaries, and to obtain information from claimants regarding their employment and earnings (see Labor Law, § 575; 12 NYCRR parts 472, 473). To protect against the unauthorized dissemination of data gathered under these reporting provisions, section 537 restricts disclosure of information “acquired from employers or employees pursuant to this article.”

That section 537 concerns only disclosure of information acquired through the reporting requirements of article 18, and not closure of hearings, is emphasized by the language of the provisions dealing with hearings. Section 622 and the regulation promulgated thereunder (12 NYCRR 461.4) set forth in some detail the procedures and rules to be followed at such hearings, yet neither mentions closure. In light of the failure of either the Legislature or the commissioner to provide for closing unemployment compensation hearings, it would be inappropriate to read into section 537 a blanket order of closure. Moreover, this conclusion is consistent with the position of the Department of Labor on this appeal that it had no objection to the presence of the press at the hearing, as well as with the long-standing position of the Attorney-General (1959 Opns Atty Gen 80).

Appellant argues, however, that without closure of unemployment hearings, claimants would be subjected to potentially serious embarrassment through revelation of such problems as alcoholism, mental illness, or family disintegration. To the extent that such compelling reasons may exist for making certain information confidential, however, less drastic remedies than closing a hearing in its entirety exist. Although an unemployment compensation hearing is not a criminal judicial proceeding, the procedures outlined with respect to such proceedings are apt (see Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430, 442, supra). When a claimant or employer requests closure of an unemployment compensation hearing during the presentation of certain evidence, he or she must demonstrate that a compelling reason exists for such closure. The court does not have occasion here to catalogue the possible reasons justifying closure, other than to note that a presumption of open hearings does not provide a license to publicize the intimate details of claimants’ private lives. If the administrative law judge does find a compelling reason for closure, such reason shall be stated on the public record in as much detail as would be consistent with the reason for closure. And, equally important, no hearing should be closed before affected members of the news media are given an opportunity to be heard “in a preliminary proceeding adequate to determine the magnitude of any genuine public interest” in the matter (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 381, affd 443 US 368).

Appellant nonetheless argues that, on the specific facts of this case, closure was required because the claimants’ reasons for leaving their employment involved Grand Jury matters that were the subject of an order issued by a Supreme Court Justice. The Justice permanently prohibited any disclosure of matters relating to evidence, witness, decisions, or discussions regarding the Grand Jury investigation of corruption, unless authorized by law to do otherwise. The order did not require closure of the administrative hearing. It covered only matters relating to the Grand Jury investigation with which claimants were involved. Merely because some of the testimony before the unemployment compensation hearing might touch on matters relating to the Grand Jury, however, did not justify closing the entire hearing or withholding a transcript of the remaining portions of the unemployment insurance hearing.

In conclusion, the administrative law judge erred in closing the hearing without first allowing petitioner an opportunity to be heard and without conducting an examination into whether compelling reasons existed for closure of any portion of the hearing. Petitioner, therefore, is entitled to a transcript of the hearing. Inasmuch as no examination was conducted at the time into the reasons for barring public access to specific portions of the testimony, however, the affected parties should be given an opportunity to make such a showing, if they so desire.

Accordingly, the order of the Appellate Division should be affirmed, with costs, without prejudice to an application for redaction of the hearing minutes.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order affirmed, etc.

       On this appeal, petitioner asserts that the closure order violated the First Amendment. Inasmuch as this constitutional claim was not raised at the trial level, this court will not now consider it.


text:
    In the Matter of Carl Kamhi, Appellant, v Planning Board of the Town of Yorktown, Respondent.
    Argued June 7, 1983;
    decided July 7, 1983

      POINTS OF COUNSEL

      Stuart R. Shamberg, Robert F. Davis, Ruth E. Roth and Thomas R. Beirne for appellant.
    I. The planning board’s action constitutes a taking of petitioner’s property without due process of law and without just compensation. (Matter of Peckham Inds. v Ross, 61 Misc 2d 616, 34 AD2d 826; East Neck Estates v Luchsinger, 61 Misc 2d 619; Jenad, Inc. v Village of Scarsdale, 18 NY2d 78; Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206; Town of Putnam Val. v Slutzky, 283 NY 334; Matter of Guardian Life Ins. Co. of Amer. v Chapman, 302 NY 226; Baldine v Gomulka, 61 AD2d 419, 45 NY2d 818; Cracco v Cox, 66 AD2d 447; Matthews v Matthews, 240 NY 28.) II. The planning board’s attempt to mandate a donation of petitioner’s property as a condition of subdivision approval is completely unauthorized by the land development regulations of the town code. (Peckham Inds. v Ross, 61 Misc 2d 616; Matter of D. M. K. Realty Corp. v Gabel, 40 Misc 2d 89; Matter of Gruner v Haefeli, 12 AD2d 838; Matter of Mahopac Isle v Agar, 39 Misc 2d 1; French Investing Co. v City of New York, 39 NY2d 587; Kaiser Aetna v United States, 444 US 164.) III. The court below erred in failing to consider the June, 1982 amendment to subdivision (a) of section 281 of the Town Law which enables the town planning board to mandate cluster development without prior application by a developer. (Carmel Assoc. v Turner Constr. Co., 35 AD2d 157; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 33 AD2d 635, 26 NY2d 493; Matter of Hart, 59 AD2d 992; McCandless v McCandless, 38 AD2d 171; De Cordova v Bennett, 32 AD2d 959.) IV. Section 281 of the Town Law must be strictly construed in favor of the property owner. (Matter of American Friends of Soc. of St. Pius v Schwab,
      68 AD2d 646; Pacific Blvd. Assoc. v City of Long Beach, 48 AD2d 857, 38 NY2d 766; Matter of Brous v Smith, 304 NY 164; People v Trowbridge, 305 NY 471; Penoyar v Kelsey, 150 NY 77; Parker v Hoefer, 2 NY2d 612, 355 US 833; Hechter v New York Life Ins. Co., 46 NY2d 34; Matter of Pansa v Damiano, 14 NY2d 356; Merritt v Village of Portchester, 71 NY 309; Gibbs v Arras Bros., 222 NY 332.) V. The language of section 281 of the Town Law should be construed in accordance with the ordinary meaning of its words. (Paterson v University of State of N. Y., 14 NY2d 432; Matter of Malpica-Orsini, 36 NY2d 568, appeal dsmd sub nom. Orsini v Blasi, 423 US 1042; Matter of Palmer v Spaulding, 299 NY 368; Noel Assoc. v Merrill, 184 Misc 646; People ex rel. Harris v Horowitz, 138 Misc 794; Matter of Albano v Kirby, 36 NY2d 526; Waterloo Woolen Mfg. Co. v Shanahan, 128 NY 345; Republic of Honduras v Soto, 112 NY 310; People v Botazzi, 68 Misc 2d 106; Matter of Blyn v Bartlett, 50 AD2d 442, 39 NY2d 349.) VI. The interpretation of the court below of subdivision (d) of section 281 renders said statute unconstitutionally confiscatory and violative of petitioner’s due process rights. (Matter of Seitz v Drogheo, 21 NY2d 181; People v Finkelstein, 9 NY2d 342; People ex rel. Guggenheim v Mucci, 32 NY2d 307; I. L. F. Y. Co. v City Rent & Rehabilitation Admin., 11 NY2d 480; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379, 375 US 78, 960; Matthews v Matthews, 240 NY 28; Matter of Sugden v Partridge, 174 NY 87; Judd v Board of Educ., 278 NY 200, 712; People v Windsor Madison Corp., 12 Misc 2d 446; Matter of Mount Sinai Hosp., 250 NY 103.)

      Arthur J. Selkin, Town Attorney, for respondent.
    L The intent and language of the enabling statutes authorize the condition being challenged. (Jenad, Inc. v Village of Scarsdale, 18 NY2d 78.) II. Case law supports the planning board’s condition. (Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206; Holmes v Planning Bd. of Town of New Castle, 78 AD2d 1.) III. The mandatory dedication of open space has received favorable judicial approval. (Agins v Tiburon, 447 US 255.) IV. Petitioner’s confiscation and due process claims are without merit. (Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221; Matter of Levine v New York State Liq. Auth., 23 NY2d 863; Matter of

      Darswan v Capellini, 69 AD2d 835; Atlantic Beach Prop. Owner’s Assn. v Town of Hempstead, 3 NY2d 434; Horizon Adirondack Corp. v State of New York, 88 Misc 2d 619; Spears v Berle, 48 NY2d 254.)
   OPINION OF THE COURT

Simons, J.

Petitioner is the owner of residential land in the Town of Yorktown which he wishes to subdivide and develop. The respondent planning board has approved his proposal but it requires as a condition of approval that he convey approximately 40% of the land to the town for park purposes. Petitioner brings this proceeding to annul that condition. Special Term granted his petition and remitted the matter to the planning board to “affix reasonable conditions to insure the preservation of the open spaces” short of an uncompensated grant. The Appellate Division reversed and dismissed the petition. The issue is whether subdivision (d) of section 281 of the Town Law grants respondent power to compel conveyance of the land for park purposes without compensation. We hold that it does not.

Petitioner’s property consists of 11.1 acres of wooded land bisected by a brook approximately 20 feet wide. In 1976 he sought planning board approval to develop the land. It was apparent that because of the brook and because part of the land near the brook is low and subject to flooding, conventional application of the residential zoning regulations was not feasible. The planning board therefore considered a cluster development pursuant to section 281 of the Town Law. After some negotiations, the parties agreed generally upon a subdivision plan for eight residences but respondent conditioned approval on petitioner’s conveyance to the town of 4.5 acres of land along the brook for development as a public park. Petitioner offered to develop the land for a park, but he was unwilling to open the land to the public or convey it to the town without compensation. He, therefore, instituted this proceeding challenging the town’s power to compel conveyance of the land.

Towns and other municipal authorities have no inherent power to enact or enforce zoning or land use regulations. They exercise such authority solely by legislative grant and in the absence of legislative delegation of power their actions are ultra vires and void (Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206, 209; Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 369-370; Nemeroff Realty Corp. v Kerr, 38 AD2d 437, 441, affd 32 NY2d 873). The authorization to exercise zoning and planning powers is found in article 16 of the Town Law (§§ 261-284). The statute grants a wide variety of powers to zone the town into districts to regulate its growth and development, to establish procedures for adoption and modification of local zoning regulations, to review and enforce zoning decisions and to establish an official map (Town Law, §§ 261-270). Sections 270-284 deal principally with planning functions. Those sections authorize creation and appointment of a planning board and staff to investigate and approve planning decisions and to implement and modify, as necessary, a master plan for growth and development of the community. Sections 276, 277 and 281 deal generally with the power of the planning board to review and approve subdivision plats. Section 277 sets forth the details of subdivision development which may be required. It permits the board to require plats of undeveloped lands to show, among other things, “in proper cases and when required by the planning board, a park or parks suitably located for playground or other recreational purposes.” If the board determines that a suitable park cannot be located because the land is not of adequate size or because for other reasons a park is not practical, the board may condition approval of the plat on payment of an amount of money to a trust fund to be used by the town board for development of a neighborhood park or playground. Section 277 also authorizes the board to determine the size and location of streets and areas required for utilities and drainage and to require bonding of these improvements. Section 278 provides that after approval and filing of the subdivision plat, the streets, highways and parks shall become a part of the official map or plan of the community and the streets, highways and park lands shown thereon may be dedicated to the public when accepted by the town board unless the owner indicates on the map that no offer of dedication is intended (§278, subd 1). Subdivision 3 provides that streets shall be private unless dedicated and accepted and that the town, if necessary, may condemn land for public streets (§ 278).

Section 281 also applies to subdivision plats but it applies only to “cluster” development. The section provides that a planning board when considering residential plats may allow some deviation from the area, yard and frontage restrictions for lots found in the zoning ordinance. The board may not permit any deviation from density requirements nor may it waive or amend use restrictions. This limited relief is permitted to allow more efficient use of land containing unusual features, the development of which might otherwise be inhibited by the literal application of the area and yard requirements of existing zoning laws. Economy, flexibility and scenic beauty are all appropriate reasons for permitting cluster zoning (Town Law, §281; and see, generally, 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 8.32, 15.10). Section 281 contains no provisions such as those found in sections 277 and 278 authorizing the dedication of lands for streets or utilities, for bonding improvements, or for payments into the trust fund for park or recreational purposes. Except for subdivision (d), it contains no reference to setting aside lands for park or recreational purposes.

Respondent contends, however, that the broader power to compel conveyance of park land may be implied from the language of subdivision (d) of section 281 which authorizes the planning board to establish as a condition of approval “conditions on the ownership, use, and maintenance” of lands available for park or recreation uses if the cluster development procedure results in lands available for municipal purposes. Our task in interpreting the statute is to give effect to the intent of the Legislature, construing words by giving them their natural and ordinary meaning and construing the various parts of the statute in a manner seeking to harmonize the whole and avoid rendering any part surplusage (Riegert Apts. Corp. v Planning Bd. of Town of Clarkstown, 57 NY2d 206, supra; Zaldin v Concord Hotel, 48 NY2d 107, 113; Matter of Albano v Kirby, 36 NY2d 526, 529-531). Doing so, we interpret the power to condition ownership and use contained in this statute as a delegation of power only to limit the transfer, development or subdivision of park property, not as a grant of power to compel conveyance to the town without cost to it.

This interpretation is confirmed by analyzing article 16 as a whole. The various sections were enacted at different times and originally found in different statutes. In 1932, however, the sections were amended and codified as article 16 of the Town Law (see L 1932, ch 634). The only planning sections which expressly refer to the transfer of a part of platted lands of a subdivision to the town are sections 277 and 278. They authorize the planning board to accept dedication of land for street purposes and dedication of park land to the town or payments in lieu of dedication (see Town Law, §§ 277, 278; and see Jenad, Inc. v Village of Scarsdale, 18 NY2d 78). Neither section, as the Appellate Division recognized, authorizes the town to compel uncompensated grants from the developer (see, also, 1 Anderson, New York Zoning Law and Practice, § 15.18, citing East Neck Estates v Luchsinger, 61 Misc 2d 619, 620-621). By contrast, the language of section 281 does not contain any similar words permitting dedication or requiring payments in lieu of dedication. Indeed, the most notable feature of section 281 is the absence of such language when compared to the language of similar planning statutes (cf. Town Law, § 278; General City Law, § 34; Village Law, § 7-732).

Section 281 is a statute enacted for the limited purpose of authorizing the use of a particular technique, cluster development. Such zones do not have unique problems with streets or utilities and manifestly, the Legislature intended other provisions found in article 16 to apply also to subdivisions approved for cluster development. Thus, the procedures for submission, approval and filing of plats for cluster developments are those required for subdivisions generally (see section 281, subds [e], [f]). Indeed, respondent, in approving the streets and drainage plans on petitioner’s subdivision, exercised the powers granted it by the provisions of section 277.

In short, article 16 sets forth a legislative scheme for control and approval of residential subdivisions. Sections 277 and 278 which provide for the dedication or condemnation of land do not contain language from which may be implied a legislative grant of power to compel conveyance of land for streets or park purposes without compensation and section 281 adds nothing to them in that respect. Indeed, there is less reason to imply the power to require the uncompensated transfer of land for park or recreational purposes than there is for streets because the amount of land required for parks is much greater and the need is less vital (see 4 Anderson, American Law of Zoning [2d ed], § 23.39, p 141).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Special Term reinstated.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur.

Order reversed, with costs, and the judgment of Supreme Court, Westchester County, reinstated.

      . Subdivision (d) of section 281 of the Town Law provides: “In the event that the application of this procedure [cluster zoning] results in a plat showing lands available for park, recreation, open space, or other municipal purposes directly related to the plat, then the planning board as a condition of plat approval may establish such conditions on the ownership, use, and maintenance of such lands as it deems necessary to assure the preservation of such lands for their intended purposes.”

      . Petitioner also contends that the respondent exceeded the powers granted to it by the town board (see Nemeroff Realty Corp. v Kerr, 38 AD2d 437, affd 32 NY2d 873). In view of our decision, we need not consider the point.

      . The statute was permissive at the time of these proceedings. As a result of a 1982 amendment, however, the planning board may require cluster zoning of a subdivision (see L 1982, ch 412).


author: Per Curiam.

text:
    In the Matter of Arthur B. Robins, Jr., Appellant, v Joseph J. Blaney, as Acting Commissioner of Education of the State of New York, et al., Respondents.
    Argued June 6, 1983;
    decided July 7, 1983

      POINTS OF COUNSEL

      Elizabeth A. Truly and James R. Sandner for appellant.
    I. The court below erred in overturning the Commissioner of Education’s long-standing and reasonable interpretation of the two-year provision of section 2509 (subd 1, par [a]) of the Education Law. (Matter of Board of Educ. v Allen, 30 Misc 2d 673, 14 AD2d 429, 12 NY2d 980; Matter of Howard

      v Wyman, 28 NY2d 434; Matter of Stupack, 274 NY 198; Moore v Board of Regents of Univ. of State of N. Y., 89 Misc 2d 23, 59 AD2d 44, 44 NY2d 593; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Bork v City School Dist. of City of North Tonawanda, 60 AD2d 13; Engle v Talarico, 33 NY2d 237; Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Matter of Becker v Board of Educ., 9 NY2d 111.) II. Subdivision 1 of section 2509 of the Education Law does not differentiate between regular substitute service rendered prior to an initial appointment on probation and regular substitute service interposed between two periods of probationary service. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Koelbl v Whalen, 63 AD2d 408; Matter of Meschino v Lowery, 34 AD2d 255, 31 NY2d 772; Matter of Barry v O'Connell, 303 NY 46.) III. Petitioner gained tenure by estoppel on or about March 3,1979 when respondent board failed to take the action required by law to grant or deny tenure. (Matter of Lindsey v Board of Educ., 72 AD2d 185; Matter of Marcus v Board of Educ., 64 AD2d 475; Matter of Matthews v Nyquist, 67 AD2d 790, 47 NY2d 800; Matter of Dwyer v Board of Educ., 61 AD2d 859; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Baer v Nyquist, 34 NY2d 291; Matter of Schlosser v Board of Educ., 62 AD2d 207, 47 NY2d 811; Matter of Weinbrown v Board of Educ., 28 NY2d 474.)

      Victor M. DeBonis, Robert D. Stone and. Kenneth Pawson for Joseph J. Blaney, respondent.
    I. The decision of the court below is in accord with the clear meaning of section 2509 (subd 1, par [a]) of the Education Law as written by the Legislature. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Charles, 200 Misc 452, 279 App Div 741, 304 NY 776; Hering v Clement, 133 App Div 293, 196 NY 218; Delaware & Hudson Co. v Utica, Clinton & Binghamton R. R. Co., 174 Misc 403, 259 App Div 969; Matter of Board of Educ. v Allen, 30 Misc 2d 673, 14 AD2d 429, 12 NY2d 980; Matter of Brewer v Board of Educ., 51 NY2d 855.) II. If “Jarema credit” is available for substitute service of less than two years’ duration, the determination of the Acting Commissioner of Education ought to be upheld. (Matter of Chauvel v Nyquist, 43 NY2d 48; Matter

      of Strongin v Nyquist, 44 NY2d 943; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Howard v Wyman, 23 NY2d 434; Ostrer v Schenck, 41 NY2d 782; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Di Marsico v Ambach, 48 NY2d 576; People ex rel. Lewis v Graves, 219 App Div 233, 245 NY 195; Matter of Central School Dist. No. 2 v New York State Teachers’ Retirement System, 46 Misc 2d 225, 27 AD2d 265, 23 NY2d 213.)

      Lawrence W. Reich for Board of Education of the Bell-more-Merrick Central High School District, respondent.
    I. The court below properly gave effect to the clear and unambiguous language of the relevant statutory provision. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Caraballo v Community School Bd. Dist. 3, 49 NY2d 488; Matter of Brewer v Board of Educ., 51 NY2d 855; Board of Educ. v Lakeland Federation of Teachers, Local 1760, Amer. Federation of Teachers, AFL-CIO, 51 AD2d 1033.) II. The construction given by the Commissioner of Education to “Jarema” provisions with respect to prior substitute service is entitled to great weight. (Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Howard v Wyman, 28 NY2d 434; Matter of Ablondi v Commissioner of Educ. of State of N. Y., 54 AD2d 507; Matter of Chauvel v Nyquist, 55 AD2d 76, 43 NY2d 48; Matter of Brewer v Board of Educ., 51 NY2d 855; Matter of Amos v Board of Educ., 43 NY2d 706.) III. Petitioner-appellant did not obtain tenure by acquiescence or estoppel. (Matter of O’Connor v Emerson, 196 App Div 807, 232 NY 561; Matter of Nyboe v Allen, 19 Misc 2d 895, 7 AD2d 822; Matter of McMaster v Owens, 275 App Div 506; Matter of Hagen v Board of Educ., 59 AD2d 806; Matter of Orange v Community School Bd. No. 3, 57 AD2d 774; Matter of Lindsey v Board of Educ., 72 AD2d 185.)
   OPINION OF THE COURT

Per Curiam.

The principal issue on this appeal is the proper interpretation of section 2509 (subd 1, par [a]) of the Education Law, also known as the Jarema Act. It provides that teachers shall be appointed by school boards for a probationary period of three years, and that when the probationary period is fully and satisfactorily served, the teacher is entitled to tenure (subd 2). The statute also permits a teacher who has rendered satisfactory service as a regular substitute for a period of two years to apply such substitute service in reduction of the three-year probationary term for purposes of acquiring tenure. Respondent commissioner has interpreted subdivision 1 of section 2509 allowing credit for substitute service only where such service is rendered prior to the commencement of the first probationary period. Unless that interpretation is irrational or unreasonable, it should be accepted (see Matter of Lezette v Board of Educ., 35 NY2d 272, 281-282). We hold that it is not irrational or unreasonable because the statute, on its face, requires interpretation; the subject interpretation has been consistently applied by the commissioner, and there is, in fact, a rational basis for it.

Petitioner was appointed by respondent Board of Education of the Bellmore-Merrick Central School District to a probationary term of employment as a secondary school science teacher. Pursuant to that appointment, he served as a probationer from March 3, 1975 until June 30, 1976, when his employment was terminated by the board due to reductions in teaching positions in the district. Thereafter, petitioner accepted a position as a regular substitute teacher in the same school district, and occupied that position from September 1, 1976 until February 1, 1978. On the latter date, petitioner was restored to probationary status and again served as a probationary teacher until his services were ultimately terminated by the board on June 30, 1979. When the board refused to continue his employment, petitioner appealed to the Commissioner of Education, contending that he was entitled to tenure by estoppel or acquiescence. He seeks credit for his one and one-half year period of service as a substitute teacher, which when combined with his two periods of probationary service of 16 months and 17 months, far exceeds the three years of service needed for tenure under the Education Law (§ 2509, subd 1, par [a]; subd 2), and which, he contends, thereby entitles him to tenure by estoppel (see Matter of Mugavin v Nyquist, 48 AD2d 727, affd 39 NY2d 1003; Matter of Moritz v Board of Educ., 60 AD2d 161). The commissioner dismissed the appeal and, in a written decision, ruled that the exception to the statutory three-year period relates exclusively to substitute service rendered prior to the commencement of the first probationary period. Because all of petitioner’s service as a substitute teacher occurred after his March 3, 1975 appointment as a probationary teacher, the commissioner refused to credit petitioner for his substitute service.

In this article 78 proceeding to set aside the commissioner’s decision, Special Term dismissed the petition and upheld the commissioner’s interpretation of the statute as neither irrational nor unreasonable. On appeal, the Appellate Division affirmed, but for reasons other than those relied upon by the commissioner and Special Term. It held that in order to receive Jarema credit a teacher must render substitute service of two full years’ duration. Since petitioner served as a substitute for only 17 months, he could not, under the Appellate Division’s ruling, apply any of that time to meet the statutory requirements for tenure or otherwise acquire tenure by estoppel or acquiescence.

Initially, we conclude that the two-year substitute credit provision of section 2509 (subd 1, par [a]) of the Education Law is ambiguous since it is unclear whether that provision is intended as a ceiling or a threshold requirement. While the Appellate Division viewed it as a threshold, it can also rationally be viewed as establishing a ceiling, whereby credit towards the three-year probationary period can be earned by periods of substitute service of less than two years’ duration (see Matter of Board of Educ. v Allen, 12 NY2d 980, affg 14 AD2d 429, 432).

Having concluded that the statute requires interpretation, we note that “ ‘[i]n case of doubt, or ambiguity’ ” it is established law “ ‘that the practical construction that has been given to a law by those charged with the duty of enforcing it, as well as those for whose benefit it was passed, takes on almost the force of judicial interpretation’” (Matter of Lezette v Board of Educ., 35 NY2d 272, 281, supra, quoting from Town of Amherst v County of Erie, 236 App Div 58, 61, affd 260 NY 361, 369-370). Moreover, the construction of the statute, in such cases, must be upheld if not irrational or unreasonable (Matter of Howard v Wyman, 28 NY2d 434; see Matter of Ward v Nyquist, 43 NY2d 57, 63; cf. Matter of Brewer v Board of Educ., 51 NY2d 855).

For over 20 years, the commissioner has interpreted section 2509 (subd 1, par [a]) of the Education Law to permit Jarema credit for substitute service of less than two years’ duration (see Matter of Board of Educ. v Allen, 12 NY2d 980, supra; Matter of Mugavin, 12 Ed Dept Rep 191; Matter of Waterman, 13 Ed Dept Rep 68; Matter of Artale, 13 Ed Dept Rep 84; Matter of Imhof, 17 Ed Dept Rep 208). He has also held that Jarema credit is available only when such service has been rendered prior to an initial probationary appointment (see Matter of Negri, 19 Ed Dept Rep 35). This interpretation is rationally based because it is intended to preserve distinctions between regular and substitute service and to thereby limit claims of tenure by estoppel inadvertently acquired. Thus, it must be upheld.

Applying the commissioner’s interpretation of the statute to the instant case, petitioner’s claim of tenure by estoppel must be rejected. Because all of petitioner’s substitute service occurred following his initial probationary appointment, he receives no credit for this 17 months of substitute service. Without credit for his substitute service, his total probationary service does not exceed three years (see Matter of Mugavin v Nyquist, 48 AD2d 727, 728, affd 39 NY2d 1003, supra).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur in Per Curiam opinion.

Order affirmed.

       The statute provides, in pertinent part, that: “[tjeachers and all other members of the teaching staff, authorized by section twenty-five hundred three of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years * * * and has been appointed to teach the same subject in day schools on an annual salary, the probationary period shall be limited to one year” (emphasis added).


text:
    In the Matter of United States Power Squadrons, Appellant, v State Human Rights Appeal Board, Respondent. In the Matter of Great Neck Power Squadron, Inc., Appellant, v State Human Rights Appeal Board, Respondent. In the Matter of Hempstead Bay Power Squadron, Inc., Appellant, v State Human Rights Appeal Board, Respondent. In the Matter of Westchester Power Squadron, Inc., Appellant, v State Human Rights Appeal Board, Respondent.
    Argued June 2, 1983;
    decided July 12, 1983

      POINTS OF COUNSEL

      Barry Golomb and Donald K. Barnes for appellants.
    I. Appellants’ membership is not regulated by the statute. (Delaney v Central Val. Golf Club, 263 App Div 710, 289 NY 577; Bristor v Smith, 158 NY 157; Matter of New York Athletic Club of City of N.Y. v City Comm. on Human Rights, 56 Misc 2d 565; New York Roadrunners Club v State Div. of Human Rights, 81 AD2d 519; Matter of Walston & Co. v New York City Comm. on Human Rights, 41 AD2d 238; Moose Lodge No. 107 v Irvis, 407 US 163; People v Cruz, 48 NY2d 419; Matter of Erie County Agric. Soc. v Cluchey, 40 NY2d 194; N.A.A. C.P. v Alabama, 357 US 449; Bates v Little Rock, 361 US 516.) II. There is no basis in law for interference with appellants’ policies. (Wright v Cork Club, 315 F Supp 1143; Matter of Castle Hill Beach Club v Arbury, 2 NY2d 596; Junior Chamber of Commerce of Rochester v United States Jaycees, 495 F2d 883, 419 US 1026.) III. There is no basis in law for opening appellants’ membership to the public. (Solomon v Miami Woman’s Club, 359 F Supp 41; Stearns v Veterans of Foreign Wars, 394 F Supp 138, 527 F2d 1387, 429 US 822; New York City Jaycees v United States Jaycees, 512 F2d 856; Korzenik v Marrow, 401 F Supp 77; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 43 AD2d 807, 35 NY2d 143; Waltz v Tax Comm., 397 US 664.) IV. Only evidence as to each appellant may be used against it. V. Prospective relief is governed by conditions existing at the time of the order. (Dickson v Springer, 246 NY 203; Maspeth Branch Realty v Waldbaum, Inc., 20 AD2d 896; Blomgren v Tinton 763 Corp., 18 AD2d 979; Matter of Galewitz, 3 AD2d 280; Hoffman v Ronan Co., 275 App Div 57; Curtiss-Wright Corp. v Incorporated Vil. of Garden City, 270 App Div 936, 296 NY 839; Craddock v Gordon, 250 App Div 830; Kress v West Side Tennis Club, 57 Misc 2d 772; Matter of Siegal v National Bead & Stone Co., 37 Misc 2d 897; Cook v Papa, 18 Misc 2d 871; Chic Maid Hat Mfg. Co. v Korba, 285 App Div 850.) VI. No service ever was effected upon United States Power Squadrons. (Delagi v Volkswagen AG of Wolfsburg, Germany, 29 NY2d 426; Berkey v Third Ave. Ry. Co., 244 NY 84; Simonson v International Bank, 16 AD2d 55, 14 NY2d 281; Henderson v Henderson, 247 NY 428; Guilford v Brody, 237 App Div 726; Terry Contr. v Tufano Contr. Corp., 29 AD2d 746; Matter of Walston & Co. v New York City Comm. on Human Rights, 41 AD2d 238.) VII. The proceedings against three of appellants are barred by the Statute of Limitations. (Matter of Phillips v County of Broome, 44 AD2d 882; Matter of Reiss v Kilborne, 56 Misc 2d 303; Matter of Horn v New York State Human Rights Appeal Bd., 75 AD2d 978.)

      Ann Thacher Anderson for State Division of Human Rights, respondent.
    I. The court below was correct in overruling appellants’ procedural objections. (Henderson v Henderson, 247 NY 428; Matter of Castle Hill Beach Club v Arbury, 2 NY2d 596.) II. The court below was correct in sustaining the division’s finding that appellants are subject to the Human Rights Law. (New York Roadrunners Club v State Div. of Human Rights, 81 AD2d 519, 55 NY2d 122; Matter of Walston & Co. v New York City Comm. on Human Rights, 41 AD2d 238; Matter of Castle Hill Beach Club v Arbury, 2 NY2d 596; Wright v Cork Club, 315 F Supp 1143; Kiwanis Club of Great Neck v Board of Trustees of Kiwanis Int., 52 AD2d 906, 41 NY2d 1034; People v Bogner, 20 NY2d 465; N.A.A. C.P. v Alabama, 357 US 449; Griswold v Connecticut, 381 US 479; Cornelius v Benevolent Protective Order of Elks, 382 F Supp 1182; Waugh v Mississippi Univ., 237 US 589; Webb v State Univ. of N. Y., 125 F Supp 910.) III. The court below was correct in sustaining the division’s conclusory finding and remedial directives.

      Katherine Levitan and Steven R. Shapiro for Bertha Adler and another, complainants-respondents.
    I. Appellants’ procedural rights were fully respected by the proceedings below. (City of Schenectady v State Div. of Human Rights, 37 NY2d 421; Delaney v Central Val. Golf Club, 263 App Div 710, 289 NY 577; McDonnell Douglas Corp. v Green, 411 US 792; Noseworthy v City of New York, 298 NY 76; Griffen v Manice, 166 NY 188; New York State Div. of

      Human Rights v New York-Pennsylvania Professional Baseball League, 29 NY 921; State Div. of Human Rights v New York City Dept. of Parks & Recreation, 38 AD2d 25; Beecham, Inc. v Certified Chems., 472 F Supp 348; Matter of Horn v New York State Human Rights Appeal Bd., 75 AD2d 978; State Div. of Human Rights v Monroe County Dept. of Social Servs., 69 AD2d 996; Matter of Russell Sage Coll. v State Div. of Human Rights, 45 AD2d 159.) II. The court below properly affirmed the State Division ruling that appellants are a “place of public accommodation” within the meaning of the Human Rights Law. (Canale v Binghamton Amusement Co., 37 NY2d 875; Rudman v Cowles Communications, 30 NY2d 1; Hylan Flying Serv. v State of New York, 49 NY2d 840; Matter of Livreri v Gargiulo, 49 NY2d 832; New York Roadrunners Club v State Div. of Human Rights, 81 AD2d 519; Matter of Walston & Co. v New York City Comm. on Human Rights, 41 AD2d 238; Matter of New York Athletic Club of City of N. Y. v City Comm. on Human Rights, 56 Misc 2d 565; Tillman v Wheaton-Haven Recreation Assn., 410 US 431; Daniel v Paul, 395 US 298; Sullivan v Little Hunting Park, 396 US 229.) III. Appellants’ discriminatory activities may be constitutionally prohibited under the Human Rights Law. (Mills v Alabama, 384 US 214; N.A.A. C.P. v Alabama, 357 US 449; De Jonge v Oregon, 299 US 353; Thomas v Collins, 323 US 516; Smith v Organization of Foster Families, 431 US 816; Moose Lodge No. 107 v Irvis, 407 US 163; Korzenik v Marrow, 401 F Supp 77; Stearns v Veterans of Foreign Wars, 394 F Supp 138, 527 F2d 1387, 429 US 822; Talley v California, 362 US 60; Shelton v Tucker, 364 US 479.)

      Robert Abrams, Attorney-General (Sheila Abdus-Salaam, Peter H. Schiff and Lawrence S. Kahn of counsel), for Robert Abrams, intervenor-respondent pro se.

    I. The court below correctly concluded that the Power Squadrons’ denial of membership to women constitutes an unlawful denial of the accommodations, advantages, facilities and privileges of a place of public accommodation. (New York Roadrunners Club v State Div. of Human Rights, 81 AD2d 519; Matter of Walston & Co. v New York City Comm. on Human Rights, 41 AD2d 238.) II. The Power Squadrons are not distinctly private clubs. (Anderson v Pass Christian Isles Golf Club, 488 F2d 855; Nesmith v Young Men’s Christian Assn. of Raleigh, N. C., 397 F2d 96; United States v Slidell Youth Football Assn., 387 F Supp 474; Wright v Cork Club, 315 F Supp 1143; Matter of Castle Hill Beach Club v Arbury, 2 NY2d 596; Olzman v Lake Hills Swim Club, 495 F2d 1333; Runyon v McCrary, 427 US 160; Daniel v Paul, 395 US 298.) III. The Human Rights Law is constitutional as applied to Power Squadrons. (Railway Mail Assn. v Corsi, 326 US 88; People v King, 110 NY 418; McCrary v Runyon, 515 F2d 1082, 427 US 160; Tillman v Wheaton-Haven Recreation Assn., 410 US 431; Sullivan v Little Hunting Park, 396 US 229; Moose Lodge No. 107 v Irvis, 407 US 163; N.A.A. C.P. v Alabama, 357 US 449.)

      Beverly Gross, Sonia Fishkin, Judith I. Avner, Marsha Levick and Lynn Hecht Schafran for Women’s Bar Association of the State of New York and another, amici curiae.

    I. The United States Power Squadrons and its chapters have a public nature. (McLaurin v Oklahoma State Regents, 339 US 637.) II. Sex discrimination is against the public policy of the State of New York. (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; General Elec. Co. v Gilbert, 429 US 125; City of Schenectady v State Div. of Human Rights, 37 NY2d 421; National Organization for Women v State Div. of Human Rights, 34 NY2d 416; New York State Div. of Human Rights v New York-Pennsylvania Professional Baseball League, 36 AD2d 364, 29 NY2d 921; Matter of Board of Educ. v New York State Div. of Human Rights [Burns], 56 NY2d 257.)
   OPINION OF THE COURT

Simons, J.

Petitioners appeal from orders confirming determinations that they have unlawfully discriminated against complainants.

It all started in 1973 when complainants Bertha Adler, Charlotte Arutt and Leslie Mayer, all interested in boating, sought to join petitioner United States Power Squadrons and one of its local squadrons, petitioners Hempstead Bay Power Squadron, Inc. (Arutt), Great Neck Power Squadron, Inc. (Adler), and Westchester Squadron, Inc. (Mayer). Complainants met every criteria for membership, save one; they were females and membership was open to males only. Their applications were denied and these proceedings followed.

The State Division of Human Rights found that complainants had been unlawfully discriminated against because of their sex and its determinations were affirmed by respondent Human Rights Appeal Board. Petitioners then instituted these four proceedings pursuant to section 298 of the Executive Law seeking to reverse and vacate respondent’s orders. The Appellate Division confirmed the orders and dismissed the petitions. We now affirm.

Petitioners do not contest the determinations that they have denied membership to women because of their sex and substantial evidence supports the finding that they have. They contend they are not subject to the provision of the Human Rights Law because (1) they are not “placets] of public accommodation, resort or amusement” and (2) they are “distinctly private” clubs (see Executive Law, § 292, subd 9; § 296, subd 2, par [a]). They contend also that the statute as applied interferes with the constitutional rights of association and privacy of their members, that the remedy of the division is overbroad and they raise a number of procedural objections.

Petitioner United States Power Squadrons, founded 70 years ago, is a nonprofit, tax exempt, foreign corporation whose purposes include promotion of safety and skill in boating. It comprises over 650 local squadrons throughout the United States and Puerto Rico. Each local squadron is separately incorporated but is chartered by the United States Power Squadrons after proving it can conduct an education program approved by United States Power Squadrons. Local squadrons are grouped geographically into 33 districts which serve as liaisons between the squadrons and United States Power Squadrons. The current total membership is approximately 70,000.

Local squadrons have their own by-laws but are governed by the constitution and by-laws of United States Power Squadrons. These provide that “any male person 18 years of age or over, having sufficient nautical knowledge, who is a citizen of the United States of America and who passes the prescribed examination” may join a local squadron and United States Power Squadrons. Petitioners Great Neck Power Squadron, Inc., Hempstead Bay Power Squadron, Inc., and Westchester Power Squadron, Inc., are located in New York. Pursuant to the constitution of United States Power Squadrons each conducts and offers free every year to the public, including women, a course in boating or piloting which is designed by the United States Power Squadrons. The course is advertised, it is sometimes offered as part of the adult education program of a local school district, and it is usually taught in public school buildings.

For many years, any man 18 or over who passed the examination for the basic boating course would be invited to become a member of United States Power Squadrons and the local squadron. The United States Power Squadrons’ membership manual at this time stated, “Ideally, every graduate of the Piloting Course should become an active member of USPS because [they] have shown an interest in boating education.” The official publication of United States Power Squadrons urged local squadrons to recruit new members immediately after grading the examination. Membership in the United States Power Squadrons is unlimited and increase of membership is strongly encouraged.

Nonmembers may take the basic boating course but the division found that in the past the advanced course has been reserved for members. Other advantages of membership include reduced rates on boat insurance, free admission to boat shows, discounts on nautical equipment and reduced rates for United States Power Squadrons publications. Members also have the right to fly a United States Power Squadrons flag which identifies them as capable boaters.

The State Division found that membership in United States Power Squadrons is extended to all males who pass the basic piloting course, that there is no plan or purpose of exclusivity other than sexual discrimination, that the actual potential membership in the Power Squadrons is more public than private, and that the only real limitation to membership in the Power Squadrons is that the applicant be male. It concluded that petitioners’ refusal to accept women for membership violated subdivision 2 of section 296 of the Human Rights Law which prohibits discrimination on the basis of sex in public accommodations. To remedy this illegality, it ordered petitioners to discontinue their male-only membership, practices, to extend membership invitations to the female complainants and to submit annual statistical reports detailing the number of male and female members in the New York squadrons.

I

Under New York law, it is an unlawful discriminatory practice “for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the * * * sex * * * of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof” (Executive Law, § 296, subd 2, par [a]). Petitioners contend that they are not within the proscription of this statute because they are not an owner or similar person and they do not operate a place of public accommodation.

The statutory definitions are set forth in section 292. Subdivision 9 defines “place of public accommodation, resort or amusement” inclusively and illustratively, not specifically, and sets forth an extensive list of examples of places within the statute. This definition has been expanded repeatedly over the years (compare L 1952, ch 285, § 4, with L 1960, ch 779; see, also, L 1962, ch 370; L 1969, ch 388). Originally, it included the phrase “and it is intended hereby to limit the procedures and jurisdiction of the commission to such places”, but the phrase was deleted in 1960, a clear indication that the Legislature intended that the definition of place of accommodation should be interpreted broadly. It excludes from its terms schools supported by public funds and “any institution, club or place of accommodation which is in its nature distinctly private.”

The statutory language states two concepts, the idea of public accommodation in the broad sense of providing conveniences and services to the public, and the idea of place.

The division found that petitioners are within the statute because they extend accommodations, facilities and privileges to members of the public. In doing so, it examined petitioners’ goals and the several aspects of its activities, specifically the educational nature of the corporation and the extensive educational programs it offers to a large segment of the public. The evidence showed that petitioners offer courses in boat handling and safety at virtually all their locations to approximately 70,000 people a year. These are not incidental services but the principal function of the organization. Indeed, the ability to maintain an education program is a prerequisite of a new local squadron. Moreover, the United States Power Squadrons with its local squadrons has taken part in the annual boat show at the New York Coliseum, distributing to the public printed material describing United States Power Squadrons as a national educational organization whose backbone is its educational program, it promotes and takes part in National Safe Boating Week, it has taken part in offering the New York Young Boatmen’s Course; it has sponsored and prepared a television program on boating in conjunction with the State of Georgia and it makes appearances at local schools. It also gives boating, fishing and tide reports on the radio. These widespread public activities to promote the Power Squadrons’ goals and to solicit public interest and participation in its courses are, as the division found, the equivalent of systematically offering a service or accommodation to the public and bringing petitioners within the statutory definition.

Petitioners also contend that they are not subject to the law because they do not operate from a fixed place of accommodation. Public accommodations are customarily supplied at fixed places, but not necessarily so. We define “place” as did the New Jersey court when construing similar statutory language. It is a term of convenience, not limitation (see National Organization for Women v Little League Baseball, 127 NJ Super 522, affd 67 NJ 320; see, also, New York Roadrunners Club v State Div. of Human Rights, 81 AD2d 519, affd on other grounds 55 NY2d 122; Matter of Walston & Co. v New York City Comm. on Human Rights, 41 AD2d 238; United States Jaycees v McClure, 305 NW2d 764 [Minn]). The statute itself suggests such an interpretation because it lists places of accommodations which have no fixed place of operation but supply their services at a variety of locations, e.g., travel and tour advisory services and public conveyances. The statute also applies to “establishments dealing with goods or services of any kind.” Analytically, such establishments may discriminate by denying goods and services without denying individuals access to any particular place, e.g., home delivery service or services performed in the customer’s home and mail order services.

The division found that petitioners conduct their activities at no fixed location but frequently at public schools and public buildings, they use public waterways, public parks and public marinas. It found that the place where petitioners’ meetings and activities occur was a “place” of public accommodation. We agree. The place of the public accommodation need not be a fixed location, it is the place where petitioners do what they do. The division’s interpretation and application of the statute was reasonable and consistent with the legislative mandate that the statute’s terms be interpreted liberally to accomplish its purpose (Executive Law, § 300; see, also, City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 428).

II

Petitioners contend alternatively that they are excluded from the operation of the statute because they are a private club.

The essence of a private club is selectivity in its membership. It must have a “ ‘plan or purpose of exclusiveness’ ” (see Tillman v Wheaton-Haven Recreation Assn., 410 US 431, 438; Sullivan v Little Hunting Park, 396 US 229, 236). Organizations which routinely accept applicants and place no subjective limits on the number of persons eligible for membership are not private clubs (Matter of Castle Hill Beach Club v Arbury, 2 NY2d 596). Moreover, the New York statutory exclusion is narrower than some (cf. US Code, tit 42, § 2000a, subd [e]). It does not refer simply to private clubs or establishments closed to the public but uses more restrictive language excluding from the statute’s provisions only clubs which are “distinctly private” (Executive Law, § 292, subd 9). We construe it strictly to promote its purposes (Executive Law, § 300).

Whether a place of public accommodation is a “distinctly private” club and therefore excluded from the operation of the statute is a question of fact (Matter of Castle Hill Beach Club v Arbury, supra), and petitioners have the burden of establishing entitlement to exclusion (McKaine v Drake Business School, 107 Misc 241, 243 [App Term]; Anderson v Pass Christian Isles Golf Club, 488 F2d 855, 857; Nesmith v Young Men's Christian Assn. of Raleigh, N. C., 397 F2d 96, 101). It is they who are familiar with the policies and practices of the club and have available the documents and records necessary to establish their claims. In determining the issue, the fact finder may consider whether the club (1) has permanent machinery established to carefully screen applicants on any basis or no basis at all, i.e., membership is determined by subjective, not objective factors; (2) limits the use of the facilities and the services of the organization to members and bona fide guests of members; (3) is controlled by the membership; (4) is nonprofit and operated solely for the benefit and pleasure of the members; and (5) directs its publicity exclusively and only to members for their information and guidance (see Wright v Cork Club, 315 F Supp 1143, 1153; see, also, Kiwanis Club of Great Neck v Board of Trustees of Kiwanis Int., 52 AD2d 906, 909 [dissenting opn], affd 41 NY2d 1034).

As the division found, membership in petitioner is extended to all males who pass the basic piloting course, the actual and potential membership is more public than private and there is no plan or purpose of exclusivity other than sexual discrimination. It is also apparent that petitioners encourage and solicit public participation in their programs, courses and membership; they do not attempt to limit their services to members only, or to operate their programs solely for the benefit of squadron members. Nor do they direct publicity exclusively and only to the members for their information and guidance.

Moreover, there are other significant distinctions between petitioner and the usual private club which support the division’s determination. For example, petitioners have secured tax exemptions as nonprofit educational organizations and pay no taxes; dues and contributions paid to United States Power Squadrons or any of its chapters are tax exempt. Such exemption sets them apart from private clubs, which do pay taxes and whose dues and contributions are not deductible as contributions to educational organizations. Additionally, petitioners have relationships with the Federal Government and various State governments which are not wholly consonant with their claim to be distinctly private. Thus, they regularly assist the United States Government in revising nautical charts and keeping them up to date; they have entered into agreements with agencies of various State governments to teach courses for high school credit, to make an educational film for public television, and even to teach boating safety to inmates of a State prison. These special relationships with government officials in the field of boating safety also include liaisons with the National Coast Guard and with the Coast Guard Auxiliary and United States Power Squadrons, among other organizations, is authorized to act as an agent of the Department of Environmental Conservation in connection with education for boating safety under section 79 of the Navigation Law. While government membership as a class of membership in United States Power Squadrons was abolished May 5, 1974, representatives of government continue to attend meetings of United States Power Squadrons when invited.

These features of petitioners’ operation cannot be regarded as incidental because petitioners’ central purpose and reason for being — “boating safety through education” — has become over the years of their existence more and more affected with a public interest.

All this being so, petitioners do not come within the statutory exclusion (cf. Kiwanis Club of Great Neck v Board of Trustees of Kiwanis Int., 52 AD2d 906, affd 41 NY2d 1034, supra). They may be clubs in the sense that they are controlled by their membership and presumably have private membership meetings, but they are not “distinctly private”. A purely private club does more to make certain that desirables are admitted than simply exclude persons believed to be undesirable and its activities are conducted principally for its members, not the public.

Ill

It is much too late in the day to challenge the constitutionality of civil rights legislation generally (see People v King, 110 NY 418) but petitioners challenge the constitutionality of it as applied to them. It is their claim that the statute denies them rights of association and privacy guaranteed under the Federal Constitution (US Const, 1st Amdt). While private discrimination may be characterized as a form of freedom of association recognized under the amendment, “the constitution places no value on it” and petitioners are not entitled to affirmative protection to further their discriminatory practices (Norwood v Harrison, 413 US 455, 470). Petitioners recognize that our statute is a proper exercise of the State’s power and since the division found upon substantial evidence that petitioners come within its terms, they were subject to its provisions (see Railway Mail Assn. v Corsi, 326 US 88 [labor union subject to New York Civil Rights Law]; United States Jaycees v McClure, 534 F Supp 766; cf. Jackson v Metropolitan Edison Co., 419 US 345; Moose Lodge No. 107 v Irvis, 407 US 163). Though nominally private, they are not exempt from the provisions of the Human Rights Law if they are not in fact private except for purposes of discrimination (see McCrary v Runyon, 515 F2d 1082, affd 427 US 160; Matter of Castle Hill Beach Club v Arbury, 2 NY2d 596, supra).

IV

We agree generally with the Appellate Division’s disposition of petitioner’s procedural objections but add these comments.

Petitioner United States Power Squadrons contends that it is a foreign corporation separate and distinct from local squadrons and it questions the power of the division to impose sanctions against it. United States Power Squadrons had sufficient presence in the State to subject it to the mandate of the division at the time of these proceedings because of the direction and control it exercised over the local squadrons and because of its activities in the State. It required local squadrons to comply with its rules when incorporating, when conducting power squadron activities, and in their membership practices. Thus, the national constitution and by-laws required that the by-laws of the local squadrons had to be approved by United States Power Squadrons and could not be amended without its approval. The boating courses were designed by the United States Power Squadrons, conducted with the regularity directed by it and with rules for admission which were uniform throughout the country. United States Power Squadrons established the requirements for membership and it had the power and authority to .expel individual members and to withdraw or revoke the affiliation of local squadrons at will. Indeed, the three local squadrons in these proceedings sought to admit women to membership but were unable to do so without losing their charters because all local members were required to be members of the United States Power Squadrons also. Furthermore, United States Power Squadrons was actually present in the State of New York insofar as its agents and representatives regularly came into the State to participate in boat shows and other public and organizational activities and because the advertising office for its magazine, The Ensign, was located in New York City. An organization which assiduously seeks to enlarge its membership and which continuously and systematically promotes its corporate goals by such activities in this State, whether conducted by officers and agents of the United States Power Squadrons or by the officers of affiliates which it dominates and controls is transacting business in New York and is subject to its jurisdiction (CPLR 302, subd [a], par 1; International Shoe Co. v Washington, 326 US 310; United States Jaycees v McClure, 305 NW2d 764 [Minn], supra). In view of its presence and its relationship to the local squadrons, both the United States Power Squadrons and the local squadrons properly may be considered as “owner[s]” or similar persons offering a public accommodation within the broad sweep of the statutory language contained in subdivision 2 of section 296 of the Human Rights Law.

United States Power Squadrons makes a similar argument in asserting the remedy is overbroad, that the required membership policies should not be imposed on it, a foreign corporation, but should be limited to the public activities of the local squadrons. Section 298-a expressly provides that the provisions of the Human Rights Law shall apply against nonresidents or foreign corporations. Pursuant to the statute, the division could have excluded United States Power Squadrons from the State entirely (subd 3). That being so, we see nothing arbitrary or unreasonable in the division taking the intermediate step of fashioning a remedy requiring the United States Power Squadrons to comply with the provisions of our laws if it chooses to continue its activities here.

Petitioners also contend that the remedy was excessive as to the local squadrons. They note that they have made several changes in their rules and that women are now admitted to all public functions and excluded only as to membership. We deem those changes immaterial. On the facts in this record, it is not possible or practical to divorce the public activities of these clubs from their operation and management. The educational aspects of petitioners’ operations are not isolated or incidental. They pervade the squadrons’ activities, both public and private, and complainants are entitled to share fully in them (cf. Kiwanis Club of Great Neck v Board of Trustees of Kiwanis Int., 52 AD2d 906, affd 41 NY2d 1034, supra; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 43 AD2d 807, mod 35 NY2d 143; Matter of New York Athletic Club of City of N. Y. v City Comm. on Human Rights, 56 Misc 2d 565). Without membership, complainants are denied the ability to participate in the governance of the national or local squadrons and to influence their policies and they are denied the “advantages, facilities and privileges” of a public accommodation (Executive Law, § 296, subd 2, par [a]).

Finally, we are not impressed with petitioner’s contention that its policies and rules were changed after the complaints were filed. The changes were not made to facilitate membership for women, but rather to tailor the operation of petitioner more closely to the paradigm of a private club after New Jersey courts found United States Power Squadrons in violation of its antidiscrimination laws (Hinden v United States Power Squadrons, NJ Super Ct, App Div, June 18, 1975, pet for certification den 69 NJ 382, app dsmd and cert den 426 US 943). The violations having been proved, the remedy was reasonable.

Accordingly, the orders of the Appellate Division should be affirmed, with costs to respondents.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur.

Orders affirmed, with costs.

      . “The term ‘place of public accommodation, resort or amusement’ shall include, except as hereinafter specified, all places included in the meaning of such terms as: inns, taverns, road houses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants, or eating houses, or any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirituous or malt liquors are sold; ice cream parlors, confectionaries, soda fountains, and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises; wholesale and retail stores and establishments dealing with goods or services of any kind, dispensaries, clinics, hospitals, bath-houses, swimming pools, laundries and all other cleaning establishments, barber shops, beauty parlors, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors; garages, all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls and public elevators of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants” (emphasis added).

      . The Coast Guard Auxiliary (see US Code, tit 14, §§ 821-832; see, also, 33 CFR part 5) is an adjunct of the Coast Guard comprising members who are owners of motorboats or yachts. Women are not barred from membership.