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PRELIMINARY STATEMENT

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, making it illegal to possess or to give to another domestic animals known as ferrets. Under the amendment to the Health Code, agents and employees of the City of New York are authorized to seize and destroy the seized ferrets. The plaintiffs seek a Preliminary Injunction and a Declaratory Judgment, as well as other relief as prayed for in their complaint.

FACTS

It is estimated that up to 20,000 ferrets are owned as pets in households in the City of New York. They are not weasels or wild animals, and have been domesticated for more than 2,000 years.

Prior to April 1. 1997, the law in New York State permitted persons to possess and sell ferrets, provided an annual license is obtained The requirement of a license was eliminated from the New York State Laws effective April 1, 1997, and there is no restriction presently in New York State against possessing, selling or breeding ferrets except the prohibition in the City of New York enacted in the form of an amendment to a health regulation.

POINT I

A preliminary injunction should be granted in a declaratory action to declare an administrative regulation unconstitutional where there is a threat of criminal prosecution and the loss of property rights (CPLR 6301).

POINT II

The New York City Charter provides for separate and distinct executive and legislative branches. The Board of Health is an executive agency and is not authorized to legislate. The City Council alone is vested with the legislative power of the City, and is the sole legislative body of the City as provided in the City Charter. Chapter 2, section 21. The Mayor is the chief executive officer of New York City. An executive may not usurp the legislative function by enacting social policies not adopted by the legislature and criminalizing what is lawful conduct in the rest of the State of New York.

In Under 21. Catholic Home Bureau for Dependent Children v. City of New York, 65 N.Y.2d 344, 492 N.Y.S.2d 522 (1985), the Court of Appeals ruled that the mayor of the City of New York had no authority to promulgate an executive order prohibiting employment discrimination on the basis of sexual orientation. The Court struck down the executive order as "an unlawful usurpation of the legislative power of the City Council"

We begin our analysis of the substantive issues presented by recognizing that the underlying structure of our representative system of governmental power is distributed -- the executive, legislative and judicial (N.Y.Constit., Art. III, sec. 1; art. IV, sec. 1; Art VI; See also NY City Charter, ch. 1, sec. 3; ch. 2, sec. 21). Respect for this structure and the system of checks and balances inherent therein requires that none of these branches be allowed to usurp powers residing entirely in another branch.

Subcontractors Trade Association v. Koch, 62 N.Y.2d 422, 427, 477 N.Y.S.2d 120, 122 (1984).

In Subcontractors, supra, the Court of Appeals invalidated an executive order by Mayor Koch mandating that a ten (10%) percent share of all construction contracts awarded by the City be given to "locally based enterprises." The Court noted that there "has been no specific legislative authority granted to the Mayor" and held that General Charter-conferred powers and City Council resolutions upon which New York City defendants rely in no way purport to authorize the Mayor to issue the executive order. However desirable the ostensible purpose may be, there is simply no legislative authority permitting the Mayor to unilaterally initiate this type of program or the means for effectuating it. In the absence of such specific authority, the executive action must be deemed an unlawful usurpation of the legislative function. (Citations omitted) 62 N.Y.2d 429-430. 477 N.Y S 2d 122 124 (emphasis added).

See also Fullilove v. Bearne, 48 N.Y.2d 376, 378, 423 N.Y.S.2d 144 (1979) (holding that the mayor did not have the authority, under our governmental system, the central feature of which is distribution of powers, to initiate affirmative action without legislative authorization, regardless of the policy's desirability); Broidrick v. Lindsay, 39 N.Y.2d 641, 385 N.Y.S.2d 265 (1976) (same).

Acorn Employment Service, Inc. v. Moss, 292 NY 147, 514 N.E.2d 340 (1944) (holding that City Charter SECT 885 -- currently codified at SECT 1105 -- which provides that "each head of an agency of the city may ... make rules and regulations for the conduct of his office or agency and to carry out its powers and duties: confers administrative, not legislative authority, invalidating regulation of the Commissioner of the License Department with respect to employment agencies).

Boord v. O'Brien, 277 AD 253, 98 N.Y.S.2d 1 (lst Dept 1950), aff'd, 302 NY 890, 100 N.E.2d 177 (1951) (invalidating two rules promulgated by New York City Police Commissioner to implement the legislative licensing scheme for hotel runners as being overly restrictive and legislative in nature).

People v. Soto, 68 Misc.2d 801, 804, 327 N.Y.S.2d 992, 995 (Crim. CT, Kings County 1971) (Department of Consumer Affairs lacked authority to ban topless dancing by regulation; such ban must be by act of the City Council).

Imperial Realty Co., Inc. v. City Rent Agency, 71 Misc.2d 688, 337 N.Y.S.2d 132 (Sup. CT NY Co. 1972) (granted a preliminary injunction staying a City Rent Agency rule reducing maximum rents, where there have been violations of the regulations of the Air Resources Department, as being beyond the agency's powers. The court ruled that the agency may no adopt and enforce a policy that is inconsistent with the state law.)

Art Dealers Association of America, Inc. v. Pacetta, 48 Misc.2d 173, 264 N.Y.S.2d 173 (Sup. CT NY Co. 1965) (permanently enjoining New York City Commissioner of Public Markets for enforcing a regulation against art galleries which require prices per unit to be posted on all objects being sold.).

Here, the Board of Health -- likely at the mayor's behest -is unlawfully attempting to usurp the legislative function.

POINT III

In People v. Strax, 80 Misc.2d 679, 363 N.Y.S.2d 474 (Crim.Ct. 1975), a physician was charged with a misdemeanor for failing to pay the Board of Health some $620 in registration fees for X-ray equipment an increase from the $25 in fees the doctor previously was charged. This increase was pursuant to an amendment to Section 5.09(a) of the Health code by the Board of Health. The Court granted the doctor's motion to dismiss, holding that the Board of Health's attempted amendment to the Health Code imposing the increased fees was void because the "fees" were actually "taxes" in that the purported "fees" exceeded the actual administrative costs of inspecting the X-ray equipment, and "infringed upon the legislative authority." 80 Misc.2d at 683, 363 N.Y.S.2d at 480. As the Court held, "When the money collected through a licensing or regulatory scheme exceeds the costs of administration, then the fee schedule is, in effect a revenue measure, and there is no question that only the legislature is empowered to tax. An administrative agency certainly has no such authority.'' 80 Misc.2d at 681, 363 N.Y.S.2d at 477. See also, Nitkin v. Administrator of the Health Services Administration of the City of New York, 91 Misc.2d 478, 399 N.Y.S.2d 162 (Sup. CT NY Co. 1975) (Baer. J.) (invalidating the Board of Health's amendment to Section 5.09 of the Health Code as a legislative "tax" which must be enacted by the City Council, not an administrative fee which the Board of Health may establish without statutory authority), aff'd on opinion below, 55 A.D.2d 566, 389 N.Y.S.2d 1022 (lst Dep't 1976), aff'd, 43 N.Y.2d 673, 400 N.Y.S.2d 817 (1977).

Just as the Board of Health's attempted amendment to the Health Code was held void and invalid in Strax and Nitkin, here the Board of Health's resolution amending the Health Code by adding Section 161.01 was legislative in nature and accordingly is void as in Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S.2d 464, 517 N.E.2d 1350 (1987).

The issue on Boreali was whether the Public Health Council of the New York State Department of Health (the State equivalents to the City Board of Health and Department of Health), had the authority, pursuant to the broad grant of powers contained in its enabling act, to promulgate regulations prohibiting smoking in public areas. These regulations contained certain exclusions for trade shows, conventions, and other enumerated areas. 71 N.Y.2d at 7, 523 N.Y.S.2d at 467.

Like the present case, Boreali presented the Court with a very narrow question. As the Court explicitly stated, there was no challenge made to (i) the merits of the proposed regulation, (ii) the propriety of the procedures by which the regulations were adopted, or (iii) whether passive smoking was harmful or the rights of smokers to smoke in public. "The only dispute is whether the challenged regulations were properly adopted by an administrative agency acting under a general grant of authority and in the face of the Legislature's apparent inability to establish its own broad policy on the controversial problem of passive smoking." 71 N.Y.2d at 8-9, 523 N.Y.S.2d at 467.

The Court of Appeals struck down the anti-smoking regulations at issue in Boreali as legislative and accordingly violative of the separation of powers, holding that the Public Health Council stretched its broad enabling statute 'beyond its constitutionally valid reach when it used the statute as a basis for drafting a code embodying its own assessment of what public policy ought to be." 71 N.Y.2d at 9, 523 N.Y.S.2d at 468. The Court did so for four reasons. First, the Court held that the Public Health Council had "constructed a regulatory scheme laden with exceptions based solely upon economic and social concerns." 71 N.Y.2d at 11-12, 523 N.Y.S.2d at 469-470. The Court found that the exemptions the Public Health Council carved out for bars, convention centers and the like "have no foundation in considerations of public health. Rather, they demonstrate the agency's own effort to weigh the goal of promoting health against its social cost and to reach suitable compromise." 71 N.Y.2d at 12, 523 N.Y.S.2d at 470. The Court held that such a balancing of health and other concerns "is a uniquely legislative guidelines at all for determining how to balance the competing concerns of public health and economic cost. Id. Accordingly, the Court held that, in balancing health and cost, the agency was "acting solely on its own ideas of sound public policy" and therefore "operating outside of its proper sphere of authority. "

In this case the Board of Health decided not to regulate domesticated dogs and cats which are known to often bite humans. They made a compromise and decided to regulate and outlaw the possession of domesticated ferrets.

POINT IV

The general statement that the department "shall have jurisdiction to regulate matters affecting health in the City of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city does not cede to the Department of Health the right to regulate any and all conduct by the residents that might affect their "health in the City of New York." Obviously, in enacting this provision of the Charter, the legislature of the State of New York did not intend that the Department of Health should regulate such matters as diet, exercise and the number of baths per week everyone should take. That residents may continue to keep domesticated dogs and cats, but may not henceforth keep domesticated ferrets, is not a decision that the Department of Health was empowered to make. In fact, a close reading of Section 556 of the New York City Charter discloses a wide range of duties, none of which call for the promulgation of rules effecting the private lives and private conduct of our citizens.

POINT IV

(*Editor's note: Yes I know there are two "POINT IV"s. That's the way it is on my copy!)

In While You Wait Photo Corp. v. Department of Consumer Affairs of the City of New York, 87 A.D.2d 46, 450 N.Y.S.2d 334, Appeal dismissed 57 N.Y.2d 957 (1982), the Department of Consumer Affairs was authorized by Section 77304.0, subdivision (b), to promulgate, amend and rescind regulations to carry out its powers and duties. The court ruled that the Department was empowered by the New York City Council to consider the safety and general welfare of the public in connection with its licensing responsibilities but may not impose conditions upon the renewal of the petitioner's license, despite its broad power to consider the safety and general welfare of the public. The Commissioner could not impose conditions that were not contained in the legislation. The court concluded, ''in effect, respondents are exercising a legislative function, and this they are not permitted to do (see, Acorn Employment Serv. v. Moss, 292 NY 147, for the proposition that refusing to issue a license except upon a condition not authorized by statute is arbitrary and capricious)."

The Court of Appeals in Candida Campagna v. Shaffer, 73 N.Y.2d 237, 242, 538 N.Y.S.2d 933, 935 (1989) ruled that, "an administrative officer has no power to declare through administrative fiat that which was never contemplated or delegated by the Legislature. An agency cannot, by its regulations, effect its vision of societal policy choices".( Citations omitted) and may adopt only rules and regulations which are in harmony with the statutory responsibilities it has been given to administer.

The Commissioner of the Department of Health may have an aversion to ferrets and the Mayor may refer to them in radio broadcasts mistakenly as "weasels," but their individual views and preferences for domesticated dogs and cats, and their aversion to domesticated ferrets, are irrelevant- and they may not legislate their personal preferences.

While a state or municipality may enact valid laws to protect the health, safety and welfare of its citizens, there are limits to what a state can do within its police powers. The state may not enact a statute that is "entirely arbitrary". Smith v. Calhoun, 283 US 553, 566-67 (1931); see, Cowan v. City of Buffalo, 247 AD 591, 594 (4th Dept. 1936) ("reasonableness of a regulations is one of the inherent limitations to the police power").

While the separation of powers doctrine gives the legislature considerable leeway in delegating its regulatory powers, enactments conferring authority on administrative agencies in broad or general terms must be interpreted in light of the limitations that Article III, section 2, of the New York Constitution imposes.

Furthermore, the amendment to Section 161.01 of the Code is arbitrary and capricious, and is not rationally related to the accomplishment of a legitimate state or New York City interest. It is, therefore, unconstitutional because it is, in violation of the due process clause of the United States and the New York State Constitutions.

POINT V

The New York State constitution, Article IX sec. 2(c) provides that local governments have the power to adopt and amend local laws not inconsistent with the provisions of the constitution and general laws relating to the same subjects including safety, health and the well being of persons or property.

The legislative intent to preempt need not be express. It is enough That the Legislature has impliedly evinced its desire to do so and that desire may be inferred from a declaration of State policy by The Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area.

Similarly, with respect to inconsistency, we have stated that there need not be an express conflict between State and local laws to Render a local law invalid ( Consolidated Edison Co. v. Town of Red Hook, 60 N.Y.2d at p. 108, 468 N.Y.S. 2d 596, 456 N.E.2d 487, supra). Rather, inconsistency "has been found where local laws prohibit what would have been permissible under State law or impose 'prerequisite "additional restrictions" on rights under State law, so as to inhibit the Operation of the State's general laws" (id., Quoting F.T.B. Realty Corp. v.Goodman, 300 NY 140, 147-148, 89 NE 2d 865 (citations omitted).

N.Y.S. Club Ass'n v. City of New York, 69 NY 2d 211, 218, 513 N.Y.S.2d 349,351 (CT App. 1987)

(*Editor's note: A page may be missing here. At this point, the page numbers on my copy jump from page 11 to 13.)

Where the constitutionality of a statute is challenged, an injunction prohibiting its implementation pending litigation is appropriate (citations omitted). To withhold relief while illegal enforcement of an unconstitutional statute strips a litigant of a constitutionally protected right would defeat the purpose of the declaratory action (citations omitted). The granting of such preliminary relief is contingent upon a demonstration that the moving party is likely ultimately to succeed on the merits, and that, in the absence of a preliminary injunction, it will suffer irreparable injury (citations omitted). In addition, the moving party must demonstrate that a balancing of the equities favors its position.

* * * *

Moreover, retroactive legislation may not impair or destroy vested rights (citations omitted).
Medical Malpractice Ins. Ass'n. v. Cuomo, 138 A.D.2d 177, 531 N.Y.S.2d 231, 233 (AD 1 Dept. 1988).

Enforcement of the amendment of the code will make possession of ferrets acquired before its amendment illegal.

CONCLUSION

The plaintiffs' motion for a preliminary injunction should be granted to protect the rights of the plaintiffs and of other law abiding citizens in the City of New York that plan to own and now own ferrets.

The laws of the State of New York were amended by the legislature to remove even the requirement of a permit for the possession of a ferret in the State of New York. If there was some special circumstance that makes New York City different than any other city in the State of New York, that would make it dangerous to own a ferret in New York City but not dangerous to own one anywhere else in New York State, then it is the duty of the New York City council to pass such legislation.

An administrative fiat should not be permitted to subject expose New York City residents to the threat of criminal and civil penalties for conduct that has never been considered illegal in the State of New York.