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The Plaintiffs allege:

1. The plaintiff, THE HUMANE SOCIETY OF NEW YORK, is a domestic not-for-profit corporation incorporated under the laws of the State of New York

2. The plaintiffs GUY F. GLASS. LEWlS REECE BARATZ and GARY KASKEL reside in the City of New York, own ferrets, and they and their families wish to own and continue to own ferrets in the City of New York.

3. The plaintiffs in the above entitled action sue both on their own behalf and also on behalf of the thousands of persons in the City of New York that own ferrets as household pets or may wish to own ferrets.

4. Defendant RUDOLPH GIULIANI is the mayor of the City of New York.

5. Defendant CITY OF NEW YORK is a municipal corporation chartered by the legislature of the State of New York, and the other named defendants are officers or bodies of the City of New York authorized to act as such pursuant to the New York City Charter.

6. Defendant THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK is a mayoral executive agency created pursuant to Chapter 22 of the City Charter with jurisdiction over matters affecting health in the City of New York as per City Charter section 556.

7. Defendant NEAL L. COHEN is the Commissioner of the Department of Health of the City of New York and the chairman of the Board of Health of the City of New York, which promulgated the amendment to the regulation.

8. Venue is proper in New York County pursuant to CPLR 504(3) because the cause of action arose in New York County, where the regulation was adopted and will be enforced.

9. On or about June 29, 1999, the Board of Health and the Department of Health of the City of New York adopted and promulgated an amendment to Section 161.01 of the Health Code of the City of New York. Which, in part, made it illegal to sell or give to another person, possess, harbor or keep certain listed animals, including ferrets.

10. Under the amendment to the Health Code, ferrets may be seized by any employee of the City of New York and the Commissioner may provide for its "disposition". As alleged below, such disposition may require that the ferrets so seized be killed.

11. The amendment of Section 161.01 of the Health Code of the City of New York violates both the equal property rights and due process clauses of the New York Constitution.

12. The amendment of Section 161.01 of the Health Code of the City of New York is unconstitutional and beyond the scope of authority delegated to the Board of Health.

13. The amendment of the New York City Health Code is alleged to have been promulgated pursuant to Section 558 of the New York City Charter, which provides in subdivision (e) that any violation of the health code shall be treated and punished as a misdemeanor. It also provides that an administrative tribunal established by the Board of Health shall have the power to enforce its final decisions and orders and may impose pecuniary penalties as if they were money judgments. Without court proceedings and to pursue any other remedies in a civil action in any court in the City.

14. The legislature of the State of New York in 1997 amended Section 11-0511 of the Environmental Conservation Law and deleted therefrom subdivision 2, which had, previous to the amendment, required persons owning a ferret in the State of New York to pay for and obtain a license.

15. On and after April 1, 1997, it was lawful under the law of the State of New York to possess a ferret without any permit or permission from any government agency or officer.

16. Article IX of the New York State Constitution confers on local governments the affirmative authority to enact local laws that are not inconsistent with or in conflict with the laws of the State of New York. The New York City Council did not enact a local law prohibiting the possession of ferrets.

17. The prohibition promulgated by the Board of Health of the City of New York making it illegal for a resident of the City of New York to possess a ferret under the penalty of criminal and civil penalties is an administrative regulation, and not a law enacted by the local legislature of the City of New York in compliance with its Charter.

18. Section 558 of the New York City Charter, in subdivision (b), authorized the Board of Health to publish additional provisions that "are not inconsistent with the constitution, laws of this state or this charter". It does not delegate legislative powers to the agency.

19. The amendment to New York City Health Code section 161.01 is illegal because it prohibits conduct expressly permitted by state law and is inconsistent with the general laws enacted by the New York State legislature.

20. The enforcement of Health Code section 161.01 could necessitate the seizure of ferrets from any person that possesses a ferret in the City of New York and their destruction as provided in that Regulation. The destruction of friendly and lovable pets is against public policy and would be an objectionable and distasteful burden that should not be imposed upon the plaintiffs and other residents and institutions in the City of New York.

2l. The enforcement of Health Code section 161.01 will subject persons owning ferrets in the City of New York to criminal and civil penalties causing many to either abandon them in the streets and public parks of the City of New York or request their destruction by animal welfare institutions or veterinarians.

22. The amendment to Health Code section 161.01, specifically excludes in subparagraph (c)(1) domesticated dogs and in subparagraph (c)(2) domesticated cats, but subparagraph (4) does not exclude ferrets, animals that have been domesticated for more than two thousand years worldwide.

NEED FOR DECLARATORY RELIEF,
IRREPARABLE INJURY

23. By reason of Section 161.01 of the Health Code, the plaintiffs and other residents of the City of New York owning ferrets live in fear of severe criminal and civil penalties. They also fear that their household pets may be confiscated and put to death at the caprice of officials of the Department of Health.

24. The plaintiffs, their families and other persons owning ferrets in the City of New York will suffer serious and irreparable injury and damage, and will continue to do so in deprivation of their state and federal constitutional rights to due process of law.

25. Immediate relief in the form of a Declaratory Judgment is needed to prevent the imposition of criminal and civil penalties upon owners of ferrets and the abandonment and destruction of their household pets.

SECOND CAUSE OF ACTION

26. The plaintiffs repeat and reallege each of the allegations in paragraphs 1 through 25 above, both inclusive as if fully set forth herein.

27. The plaintiffs, by reason of the conduct of the defendants as alleged herein above, have been deprived of due process required under Article I, section 6 of the New York State Constitution.

28. Persons that acquired ferrets before the promulgation of the regulation when it was lawful to possess a ferret have been deprived of their property and legal rights without due process.

THIRD CAUSE OF ACTION

29. The plaintiffs repeat and reallege each of the allegations in paragraphs 1 through 28 above, both inclusive as if fully set forth herein.

30. Section 161.01 of the Health Code of the City of New York is an unlawful and invalid usurpation by an executive mayoral agency of legislative powers that are reserved to the New York City Council pursuant to Chapter 2, section 21 of the New York City Charter.

FOURTH CAUSE OF ACTION

31. The plaintiffs repeat and reallege each of the allegations in paragraphs 1 through 29 above, both inclusive as if fully set forth herein.

32. Section 161.01 of the Health Code is arbitrary and capricious and is not rationally related to the accomplishment of a legitimate municipal purpose or interest.

33. There is no reasonable purpose in prohibiting the possession of domesticated ferrets. It was a legislative choice to exclude domesticated dogs and cats that are known on numerous occasions to bite animals, adults and children from the regulation and at the same time to prohibit the possession of domesticated ferrets that very seldom, if ever, bite any humans.

34. There is no rational basis for the Board of Health to treat differently owners of domesticated ferrets and owners of domesticated dogs and cats. The regulation as promulgated by administrative fiat contains no explanation for the disparate treatment of owners of domesticated animals.

35. By reason thereof, Section 161.01 of the Health Code is void because it violates the equal protection requirements of Article 1, Section 1 and Section 6 of the New York State Constitution, and is a usurpation of legislative functions by an administrative agency.

36. No previous application has been made to any court or judge for the relief requested herein.

WHEREFORE, the plaintiffs pray for a Judgment,

(i) declaring that the amendment of Section 161.01 of the New York City Health Code was enacted by the Board of Health in violation of the New York City Charter, is inconsistent with the New York State Constitution, and is therefore null, void and without force of law;

(ii) permanently restraining and enjoining each and every defendant, and all agencies, officers and bodies of the City of New York, its employees and agents, from exercising any of their respective power rights or duties to enforce Section 161.01 of the Health Code insofar as it applies to ferrets;

(iii) awarding the plaintiffs the costs and disbursements of this action, including reasonable attorneys' fees, together with such other and further relief as the Court deems just and proper.

(Iv) that a preliminary injunction be granted staying enforcement of section 161.01 of the New York City Health Code the adjudication of this action.

New York, New York.
October 271999

Irving Heisler
Attorney for the plaintiffs