|SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
|THE HUMANE SOCIETY OF NEW YORK,
|GUY F. GLASS, LEWIS REECE BARATZ and
||MEMORANDUM OF LAW
|THE CITY OF NEW YORK, THE DEPARTMENT
|OF HEALTH OF THE CITY OF NEW YORK, RUDOLPH
|GIULIANI, and NEAL L. COHEN,
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.
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
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.
|A PRELIMINARY INJUNCTION SHOULD BE
GRANTED TO PRESERVE THE STATUS
QUO WHERE THE ALTERNATIVE WOULD
BE THE LOSS OF DUE PROCESS RIGHTS.
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).
|THE AMENDMENT, SECTION 161.01 OF
THE HEALTH CODE OF THE CITY OF NEW
YORK, SHOULD BE DECLARED VOID
BECAUSE IT IS AN UNLAWFUL
USURPATION OF THE CITY COUNCIL'S LEGISLATIVE ROLE BY AN
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
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)
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.
THE BOARD OF HEALTH HAS CERTAIN
DELEGATED POWERS; BUT AS AN
ADMINISTRATIVE AGENCY, IT IS
NOT EMPOWERED WITH LEGISLATIVE POWERS.
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.
THE FUNCTIONS, POWERS AND DUTIES
OF THE NEW YORK CITY DEPARTMENT
OF HEALTH ARE DELINEATED AND
LIMITED BY SECTION 556 OF THE NEW
YORK CITY CHARTER.
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
note: Yes I know there are two "POINT IV"s. That's the
way it is on my copy!)
THE BOARD OF HEALTH RESOLUTION
AMENDING THE HEALTH CODE IS
LEGISLATIVE AND BEYOND THE SCOPE
OF THE DEPARTMENT'S AUTHORITY.
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
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
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.
LOCAL GOVERNMENT MAY NOT
EXERCISE ITS POLICE POWER BY
ADOPTING A LOCAL LAW INCONSISTENT
WITH CONSTITUTIONAL OR GENERAL LAW.
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
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)
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.
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.
Attorney for the Plaintiffs.