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Hempstead battling decision barring free-air ordinance

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The Town of Hempstead is fighting a court decision that temporarily bars it from requiring gas station owners to provide free compressed air 24 hours a day so drivers can fill their tires.

For decades, local stations were permitted to charge a fee for use of their air compressors, provided that the machine indicated that free air was available. Then the Town Board enacted an ordinance in 2016, mandating that gas station owners offer free air 24 hours a day, seven days a week.

The Gasoline and Automotive Service Dealers Association and Long Island Gasoline Retailers Association challenged the constitutionality of the ordinance in court last August. Also joining in the suit were several local entrepreneurs like William McCabe, owner of SSVE, which manufactures coin-operated air machines and car vacuums.

Nassau County Supreme Court Justice Karen Murphy ruled in January that the town could not enforce its 2016 ordinance, which amended a 1978 law allowing stations to install compressed air machines –– and to charge for air after hours.

Murphy did not rule on the merits of the new law itself, but rather the manner in which it was enacted. Passage of the ordinance, she wrote in her decision, “appears on its face to be an attempt to circumvent the purpose of the Open Meetings Law,” which requires that the public receive notice of government meetings and that board votes be held in public.

Michael Deery, the town’s communications director, responded to Murphy’s ruling in an emailed statement: “The decision recently issued on the town’s legislation related to ‘free air’ solely addresses the requested preliminary injunction and does not end the case. The town does not comment on ongoing litigation.”

The new town law, if it were to stand up to judicial scrutiny, would subject small gas station owners to criminal charges, including imprisonment for up to 15 days and fines of $2,500 per week, for having coin-operated compressed air machines on their premises, even though state law permits them. The plaintiffs argue in their lawsuit that the town ordinance appears to be at odds with state law.

Town attorney Joseph Ra said at a Feb. 21 Town Board meeting that officials hoped to meet with the plaintiffs before the board’s next meeting on March 7. That is, in part, why the board tabled discussion of the issue at its February session.