|SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
|THE HUMANE SOCIETY OF NEW YORK, GUY F.
| GLASS, LEWIS REECE BARATZ and GARY KASKEL,
||Index No. 121839/99
|THE CITY OF NEW YORK, THE DEPARTMENT
|OF HEALTH OF THE CITY OF NEW YORK, RUDOLPH
|GIULIANI, and NEAL L. COHEN,
MEMORANDUM OF LAW AND IN
OPPOSITION TO DEFENDANTS
CROSS-MOTION TO DISMISS
ARTICLE 1, THE BILL OF RIGHTS OF THE
NEW YORK STATE CONSTITUTION GUARANTEES
TO THE RESIDENTS OF THIS STATE CERTAIN BASIC
FREEDOMS WHICH MAY BE NOT BE NULLIFIED
BY ADMINISTRATIVE DECREES.
Chapter 22 of the New York City Charter, section 556, provides
that the Department of Health of the City of New York shall have
jurisdiction over matters affecting health in the City of New
York. This provision does not however make the Commissioner the
sole judge and arbiter of what is healthy or not healthy nor does
it grant to the Commissioner the authority to enact regulations
governing private conduct. The province of the agency is to enforce
the laws enacted by the New York State legislature and laws enacted
by the New York City Council.
The New York State Environmental Conservation Law defines the
animals that are dangerous and inclined to inflict harm and therefore
may not be not be possessed by residents in the State of New York.
Ferrets are not included in the list of animals.
Article IX of the New York State constitution confers upon local
governments the authority to enact 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 the amendment to the New York
City Health Code. And the amendment by the Commissioner is
inconsistent with and in conflict with the laws of the State of
The amendment to the regulation, Article 161.01 of the Sanitary
Code and Regulations was preceded by Regulation 22 (Exhibit A
annexed to the Moed affidavit) It defined "wild animals" as follows:
The term "wild animals" shall be taken to mean and include tame
or untamed lions, bears, wolves, foxes, snakes or other animals
with similar vicious propensities.(Obviously a domestic animal
such as a four pound ferret can not be seriously considered as
similar to a lion or a bear!)
When the Sanitary Code was recodified as the Health Code in 1959,
section 22 of the Sanitary Code was transferred into section 161.01
(Exhibit B annexed to the Moed affidavit). It defined "wild animals"
Sec. 161.01. Wild animals prohibited.(a) No person shall keep
an animal of a species which is wild, ferocious, fierce, dangerous
or naturally inclined to do harm, in any place other than:" in
a zoo, a laboratory or a circus.
WILD ANIMALS ARE NOW ANY ANIMAL
WHICH THE COMMISSIONER DECIDES
IS A WILD ANIMAL OR CAN DO HARM.
The amendment to the regulations which the plaintiffs object
to is supplied as Exhibit D annexed to the Bryant affidavit. It
adds a new class of animals. It deletes "an animal of a species
which is wild, ferocious, fierce, dangerous or naturally inclined
to do harm in any place" and substitutes in its place a new classification
" wild animals identified in subsection (b) of this section or
in regulations promulgated by the Commissioner pursuant to subsection
(e) of this section".
The new subsection (e) provides that the Commissioner may henceforth
prohibit the possession of any animal (a bird, mammal, reptile,
animal or insect) "which the Commissioner determines is naturally
inclined to do harm and capable of inflicting bodily harm upon
'ADMINISTRATIVE AGENCIES CAN ONLY
PROMULGATE RULES TO FURTHER THE IMPLEMENTATION
OF THE LAW AS IT EXISTS; THEY HAVE NO AUTHORITY TO CREATE
A RULE OUT OF HARMONY WITH THE STATUTE .' Jones v.
47 N.Y. 2d 42
While it is true that the plaintiffs have the burden to establish
that the regulation being challenged herein is arbitrary this
court is not prevented from protecting the rights of the residents
of the City of New York.
"While this standard is limiting, it does not render the judiciary
powerless. An agency has no authority to create rules and regulations
without a statutory predicate either express or implied (Matter
of Bates v. Toia, 45 NY 2d 460, 464). That would be tantamount
to legislation by administrative fiat, and, by definition, irrational
(Matter of Harbolic v. Berger, 43 NY2d 102, 109; Matter
of Jones v. Berman, 37 NY2d 42, 53). Thus, administrative
rules are not judicially approved in a pro forma manner (Matter
of Bates v. Toia, supra, at 464). Courts must scrutinize
administrative rules for genuine reasonableness and rationality
in the specific context presented by a case."
"An agency has no authority to create rules and regulations
without a statutory predicate either express or implied (Matter
of Bates v. Toia, supra, at 464, 410 N.Y.S. 2d 265, 382
N.E. 2d 1128). That would be tantamount to legislation by administrative
fiat, and, by definition, irrational ( Matter of Harbolic
v.Berger, 43 NY 2d 102, 109, 400N.Y.S. 2d 780, 371 N.E 2d
499: Matter of Jones v. Berman, 37 NY 2d 42, 53, 371 N.Y.S2d
422, 332 NE 2d 303). Thus, administrative rules are not judicially
approved in a pro forma manner (Matter of Bates v. Toia,
supra, at 464, 410 N.Y.S. 2d 265, 382 NE 2d 1128). Courts must
scrutinize administrative rules for genuine reasonableness and
rationality in the specific context presented by a case"
Kuppersmith v.Dowling 93 NY2d 90, 96 (Ct. App 1999)
The supporting affidavit of assistant corporation Louise Moed
in paragraph 7 reveals the basic problem with the respondent's
position. She argues that there is a rational basis for the prohibition
of wild animals in the City of New York since 1933 because the
Sanitary Code was enacted in 1948 and recodified in 1959, that
they all contained a prohibition against the possession of wild
animals or animals naturally inclined to do harm. Her proof that
ferrets were wild or naturally inclined to do harm is that in
1966 there existed a list maintained by the Division of Veterinary
Medicine of the Department of Health and this list listed ferrets
among animals that were "naturally inclined to do harm"- and plaintiff
Gary Kaskel asked for a copy of the list in 1997.
The question remains does Louise Moed argue that ferrets are
wild animals? (they have been domesticated for more than 2000
years!) Or does she claim that they are naturally inclined to
do harm? -Are dogs and cats naturally inclined to do harm? There
are thousands of dog bite and cat bite reports each year of children
and adults that are treated in New York City hospitals.
Does the existence of a list of animals in the archives of the
Division of Veterinary Medicine prove that ferrets are wild or
does it prove that they are naturally inclined to do harm? What
was the scientific evidence that triggered the decision to place
ferrets on this list?
In paragraph 11 Ms. Moed summarizes the process that preceded
the enactment of the amendment to the Health Code, which criminalized
the possession of ferrets in the City of New York. Previously
ferrets were not listed in the Health Code. It previously only
stated in general terms that in New York City no one was permitted
to keep "an animal of a species which is wild ferocious, fierce,
dangerous or naturally inclined to do harm". The Department and
Ms. Moed does not make clear what was the basis for the decision
to outlaw the possession of ferrets. Does the Department claim
that ferrets are wild animals - like lions and tigers? Are these
small and fun loving pets fierce animals? Are these beloved pets
naturally inclined to do harm? And if so why are instances of
ferret biting people so rare that they have to rely on newspaper
reports of an incident in London in 1834. Newspaper reports are
not reliable. In the USA we have had numerous reports of alien
encounters and other events that are not credible. A citizens
rights should not depend upon hearsay and rumor. Why is only California
the source of negative reports about ferrets?
She relies on New York City Friends of Ferrets v. The City
of New York, 876 F Supp 529 ( SDNY ) a decision in the Federal
Court in 1995. It was decided before the promulgation of the amendment
to the regulation, which is the subject of the present lawsuit.
In that case the court was faced with the claim that the department
must take immediate steps to seize and destroy ferrets that had
bitten someone because they could be carriers of rabies. The court
concerned with public safety permitted the Department to continue
with their program to seize ferrets - to cut of their heads and
test them for rabies. (In every case where they had done so they
reported back to the owners that their ferrets were free of rabies.)
The Court explained its decision in the following paragraph,
"Here, the undisputed evidence, discussed supra at 535-538,
establishes that the City's ban on ferrets and its summary euthanasia
and testing of ferret that bite humans has ample basis in public
health concerns regarding the propensity of pet ferrets to bite,
particularly infants and small children, and the uncertain pathogenesis
of rabies in domestic ferrets; therefore, the City's regulation
of ferret ownership cannot be deemed arbitrary or irrational"
It should be noted that in that case the Federal Court dealt
with the question whether the Department of Health is authorized
to seize a ferret that had bitten a human being and test it for
rabies. The new regulation now decrees that there is no need for
a report of a ferret biting someone. From now on no one may even
own a ferret.
Ms. Moed in par. 11 reports that a public hearing was duly held
on June 3, 1999 prior to the enactment of the regulation. The
hearing was however a sham. I bring to the Court's attention that
although a public hearing is a predicate for the promulgation
of a regulation, the Commissioner did not attend the hearing-
nor did any other person charged with the duty and responsibility
for the enactment of regulations. At the hearing no one presented
the facts or arguments that support the inclusion of ferrets among
the list of dangerous animals. They permitted opponents to speak
and then completely ignored what was said and proceeded with the
enactment of the regulations based apparently upon a report and
summary by Linda Hall Vassall the director of Veterinary Public
Health Services (whose views were not presented at the so called
public hearing) - so that they could be answered and contrary
evidence presented by the citizens that attended the hearing and
were concerned about the regulation.
It is also interesting to note that the threat of rabies which
was dispositive in New York City Friends of Ferrets v. The
City of New York et al., 876 F. Supp 529 (S.D.N.Y.1995) is
no longer the basis for the department's hostility to ferrets.
Mr. Boyce in his affidavit in paragraph 5 states, "As is noted
in the Statement of Basis and Purpose annexed to the new amendment
to Health Code sec. 161.01, there has been one change in the public
health concerns since the time of Mr. Kurtz's affidavit, namely,
that more is known about the pathogenesis of rabies in ferrets,
and an approved ferret rabies vaccine now exists."
Most importantly the affidavit of Edward Boyce reveals absence
of any scientific or reasonable basis for this regulation. In
paragraph 2 he reveals the source of his "professional familiarity".
He reviewed literature and had conversations with employees of
the department and with other unidentified professionals. He looked
at records and files maintained by the Bureau and the Department.
There is however no disclosure as to his scientific or educational
credentials or who among the defendants made the decision that
ferrets are dangerous or of the scientific basis for that decision.
The board revealed that in adopting the regulation against ferrets
it relied upon a report it received that California will continue
to ban ferrets but paid no heed to the fact the legislature of
the State of New York eliminated even the requirement of an annual
permit for the possession of a ferret in the State of New York.
It also was not influenced by the fact that the other forty nine
states do not ban ferrets and the possession of ferrets is lawful
anywhere else in the State of New York. The board instead relied
upon the unsubstantiated report of a New Hampshire veterinarian
that a child that had been bitten by a ferret.
It is lawful anywhere else in the State of New York to possess
a ferret as a pet. You can own one in Albany, Syracuse and even
in Yonkers but the Commissioner of the Department of Health of
the City of New York has decided that no one in the City of New
York may possess a ferret. Vague rumors and conversations with
unnamed persons and newspaper articles do not establish that there
exists a threat to the safety of the citizens of the City of New
York and therefore it is proper to deprive as many as twenty thousand
residents of this city of their personal pets.
As citizens we have the right not to be deprived of our rights
and personal liberties. The legislators we elect may pass laws
but administrators should not exceed their defined duties and
become the arbiters of our daily lives.
Attorney for the Plaintiffs.