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PLAINTIFFS REPLY

MEMORANDUM OF LAW AND IN

OPPOSITION TO DEFENDANTS

CROSS-MOTION TO DISMISS

POINT ONE

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 New York.

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" as follows:

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.

POINT TWO

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 human beings."

POINT THREE

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."

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"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.

CONCLUSION

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.