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LOCAL FIRM SCORES MAJOR VICTORY IN WESTCHESTER TOWN’S ATTACK ON MASSAGE ESTABLISHMENTS

White Plains law firm Tilem & Associates won a major Court victory yesterday when a Supreme Court Justice granted the firm’s application andforest-yin-1-169x300  issued a Temporary Restraining Order (TRO) against the Town of Greenburgh’s enforcement of its local law regulating massage establishments.   In 2015 the Town of Greenburgh, New York in Westchester County passed an ordinance which required massage establishments to obtain special permits from the Town in order to operate within the unincorporated part of the Town.  During consideration of the ordinance by the Town Board, the proposed legislation was not without controversy.  In fact the Town Board received a letter from the New York State Department of Education letting the Board know that licensed massage therapists were wholly regulated by the State of New York and were licensed by the State Department of Education and that the regulation by the State preempted any such regulation by the Town and unfairly burdened professionals licensed by the State.

Notably, the Greenburgh ordinance regulates licensed massage therapists not unlicensed massage therapists and requires those that are already licensed to obtain a Greenburgh License.  Also notably, the Greenburgh ordinance defines Massage, a term already defined in sec 7801 of the New York State Education Law.

Based upon the clear preemption of these regulations by New York State Law, the American Massage Therapy Association brought a lawsuit to invalidate the Greenburgh Law in 2016.   However, after a significant amount of litigation that lawsuit was dismissed on a technicality.  On September 29, 2016, Acting Supreme Court Justice Helen Blackwood ruled that “what appears to be a meritorious claim fails due to petitioners’ lack of standing.”  Standing is a legal principle that requires a litigant to demonstrate some injury before they can bring a lawsuit. Since neither the  American Massage Therapy Association nor an individual petitioner had been directly affected or harmed by the new law Judge Blackwood ruled that they could not maintain the original action.

In the interim, according to the Westchester Journal News, the local law has already resulted in the closure of 6 massage businesses in the Town.  Forest Yin Spa on Central Ave., in Hartsdale, the Town of Greenburgh had remained opened.  In July the establishment was “raided” by the police. Despite the arrest of one woman for Prostitution, a misdemeanor and Massaging without a state license, a felony the case was troubling.  The prostitution charge was withdrawn by the prosecutors prior to arraignment and the felony charge was reduced to a non-criminal offense of disorderly conduct and the record was sealed.  Despite the fact that the “raid” resulted in no criminal convictions Greenburgh sought to revoke the Town issued permit and the Spa was allowed to remain open while the spa appealed to the Town Board.  The appeal was denied and on December 19, 2017, the Town Board ordered the Spa closed.  Shortly thereafter, immediately before the long Christmas weekend, the Town closed the Spa.

This firm filed an emergency application to reopen the Spa in Westchester County Supreme Court on December 27, 2017.  The application also sought to set aside the Greenburgh Law based upon several legal issues including the fact that the Town Ordinance is preempted by New York State Law, specifically by the New York State Education Law.  Yesterday, December 28, 2017, the Administrative Judge for the Ninth Judicial District, sitting as the Duty Judge on the emergency application granted a Temporary Restraining Order (TRO) against the Town which barred the enforcement of the Greenburgh Town Law against the Spa and directed that the Spa be permitted to reopen.

This was a significant victory for the Spa and our firm despite the long battle ahead.  We believe that this law would set a dangerous precedent by allowing local regulation of professions already regulated by the State such as Doctors or Lawyers.  While the battle will continue, the Spa can remain open, at least for now.