Bd. of Health Pub. Review Comm. v. N.Y.C., Index No. 100847/2013

• Court: New York Supreme Court
• Writing for the Court: Donna Mills, J.
• Citation: Bd. of Health Pub. Review Comm. v. N.Y.C., 2014 NY Slip Op 32327(U), Index No. 100847/2013 (N.Y. Sup. Ct. Sep 04, 2014)
• Decision Date: 04 September 2014
• Docket Number: Index No. 100847/2013
• Parties: BOARD OF HEALTH PUBLIC REVIEW COMMITTEE, and all similarly situated food establishments in the City of New York and all affected by Defendants' improper conduct and action, Petitioners, v. NEW YORK CITY, BOARD OF HEALTH OF THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGEINE, DR. THOMAS FARLEY, in his Official Capacity as Commissioner of the New York City Department of Health and Mental Hygiene, NEW YORK CITY CORPORATE COUNSEL, Respondents.

2014 NY Slip Op 32327(U)

BOARD OF HEALTH PUBLIC REVIEW COMMITTEE,and all similarly situated food establishments in the Cityof New York and all affected by Defendants' improper conductand action, Petitioners, v. NEW YORK CITY, BOARD OF HEALTH OF THE CITYOF NEW YORK, NEW YORK CITY DEPARTMENTOF HEALTH AND MENTAL HYGEINE, DR. THOMAS FARLEY,in his Official Capacity as Commissioner of the New York City Departmentof Health and Mental Hygiene,NEW YORK CITY CORPORATE COUNSEL, Respondents.

Index No. 100847/2013

SUPREME COURT Of THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 58

September 4, 2014

Decision and Order

Recitation (CPLR 2219 [a]) of papers used on this Article 78 proceeding and cross motion:

Papers

Exhibits

Petitioners

Notice of Motion

Attorney Affirmation (Grimaldi)*

Attorney Affirmation (Sementilli)*

Additional Attorney Affirmation (Grimaldi)*

Additional Attorney Affirmation (Sementilli)*

Respondents

Notice of Cross Motion to Dismiss

Affidavit of Quintian

A-V

Affidavit of Marcus

Memorandum in Support of Cross Motion

Memorandum in Further Support of Cross Motion

*The court notes any number of date and service irregularities with these documents. However, in the interest of justice, noting that the respondents acknowledge notice of the nature and content of the petition, and with due regard for the preference of this court to determine matters on the merits, this court overlooks these irregularities. See e.g. 3105 Grand Corp. v City of New York, 262 App Div 17 (2d Dept 1941), affd 288 NY 178 (1942); see also CPLR 3212.

Donna Mills, J.:

This hybrid declaratory judgment/Article 78 petition arises with regard to the food inspection procedures and concomitant powers of respondents the Board of Health of the City of New York (BOH), and the New York City Department of Health and Mental Hygiene (DOHMH). Petitioners, who comprise some forty restaurant owners in the borough of the Bronx, complain that the food inspectors for the BOH levy fines excessively, inconsistently, beyond their powers, without notice of inspection, and unconstitutionally. Respondents cross-move to dismiss the petition.

Background

Without a high degree of specificity, petitioners describe the current state of affairs with regard to food inspections as generally unfair and legally unconstitutional. From what the court can discern of the somewhat incoherent submissions of the petitioners, they complain that food inspectors of the BOH impose excessive fines and fees on restaurant owners without regard for the economic hardship being levied, and with particular, and improper, regard for a policy of revenue-generation. They also complain that those fines and fees are deposited in a pension fund for the BOH, which has no oversight or appropriate auditing mechanisms.

Petitioners also argue that the food inspectors do not give notice of their intention to conduct inspections, sometimes causing severe economic loss to business owners, who sometimes are unable to continue to serve food during inspections. In addition, the fines and fees levied as a result of the inspections are inconsistent, because the food inspectors have varying degrees of expertise, and procedurally unfair, as supervisors sometimesmake follow-up visits to locations that have been fined, sometimes increasing the fines greatly upon discovering violations that were purportedly overlooked.

At the core of the petition is the complaint that certain provisions of the New York City Charter (Charter) establish and provide rules for the BOH that are unconstitutional. More specifically, the petitioners object to Charter sections 556 (c) (2) and (c) (9), 558 (b) and (c), and 1043. As a backdrop, it is useful to note that the Charter provides in section 551 (a) that "[t]here shall be a department of health and mental hygiene, the head of which shall be the commissioner of health and mental hygiene . . . . The department shall have and exercise all powers of a local health department set forth in law."

Charter section 556 addresses supervision of matters affecting public health. Section 556 (c) (2) provides that the BOH shall "supervise the reporting and control of communicable and chronic diseases and conditions hazardous to life and health; exercise control over and supervise the abatement of nuisances affecting or likely to affect the public health." Meanwhile, section 556 (c) (9) provides that the BOH shall "supervise and regulate the food and drug supply of the city and other businesses and activities affecting public health in the city, and ensure that such businesses and activities are conducted in a manner consistent with the public interest and by persons with good character, honesty and integrity."

Section 558 of the Charter addresses the management of the health code for the city (Health Code). Subsection (b) of that section specifies powers that the petitioners claim the BOH is exercising improperly with regard to the Health Code: To wit:

"(b) The board of health from time to time may add to and alter, amend or repeal any part of the health code, and maytherein publish additional provisions for security of life and health in the city and confer additional powers on the department not inconsistent with the constitution, laws of this state or this charter, and may provide for the enforcement of the health code or any orders made by the commissioner or the board of health, by such fines, penalties, forfeitures and imprisonment as may be prescribed therein or otherwise by law."

The breadth of the powers granted in subsection (b) is described in subsection (c). More specifically, subsection (c) provides, among other items, that "[t]he board of health may embrace in the health code all matters and subjects to which the power and authority of the department extends."

Charter section 1043 (a) provides, with regard to the authority and powers delegated, that "[e]ach agency is empowered to adopt rules necessary to carry out the powers and duties delegated to it by or pursuant to federal, state or local law. No agency shall adopt a rule except pursuant to this section." Subsections (b) and (d) of section 1043 set forth procedures for adopting rules by providing for the publication of the proposed rule and allowing an opportunity for public comment. Charter section 1041 (5) (a) sets forth the definition of a "rule" as including, but not being limited to, among other possibilities, "any statement or communication which prescribes (i) standards which, if violated, may result in a sanction or penalty; (ii) a fee to be charged by or required to be paid to any agency; [or] (iii) standards for the issuance, suspension or revocation of a license or permit. . . ."

The court notes that the Health Code enacted by the BOH (see §558 [b]) provides that: "[t]he Department may inspect any premises, matter or thing within its jurisdiction, including but not limited to any premises where an activity regulated by this Code iscarried on . . . ." 24 RCNY Health Code § 3.01 (a). With regard to the exercise of the powers granted,

"[i]n order to determine whether the provisions of this Code or the provisions of other law which the Department has the authority to enforce are being complied with, the Department may investigate or authorize an investigation to be made of any matter, incident, thing, person or event within its jurisdiction."

24 RCNY Health Code § 3.01 (b).

In addition, Article 81 of the Code grants the general power to inspect food service establishments, and

"[w]here the Department seeks a fine or monetary penalty for a violation of this Code or any other State or local law or regulation enforced by the Department, it shall bring a proceeding at either the Health Tribunal at OATH or at the Environmental Control Board, and such proceedings shall be governed by the procedures of such Tribunal or Board, as the case may be."

RCNY Health Code § 3.12 (b).

Finally, Health Code section 3.11 (a) provides that

"any person who is determined to have violated this Code or any other applicable law or regulation, or who holds, or is required to hold, a permit from the Board or the Commissioner or who is registered, or required to be registered, with the Department shall be subject to a fine, penalty and forfeiture of not less than two hundred and not more than two thousand dollars for each violation of a provision of this Code or any other applicable law or regulation relating to such businesses, trades, occupations and other activities. Each such violation shall be a separate and distinct offense, and in the case of a continuing violation, each day's continuance thereof shall be a separate and distinct offense."

Petitioners argue that these statutory provisions, together with the process ofrestaurant inspection and violation enforcement, are unfair and unconstitutional. As the underpinning for this position, the petitioners cite the New York State Constitution, article 9, section 1 (a), which provides that "[e]very local government, except a county wholly included within a city, shall have a legislative body elective by the people thereof," and that the Charter, in turn, provides that "[t]here shall be a council which shall be the legislative body of the city. In addition to the other powers vested in it by this charter and other law, the council shall be vested with the legislative power of the city." Charter § 21.

Petitioners maintain that these two provisions mean that the appointees of the executive, that is to say, the BOH, may not intrude upon the legislative prerogatives of the City Council. In essence, the petitioners argue that the powers exercised by the BOH impinge upon the separation of powers intended by the New York State Constitution and, indeed, the United States Constitution. See Subcontractors Trade Assn. v Koch, 62 NY2d 422, 427 (1984) ("the underlying structure of our representative system of government consists of three branches in which all governmental power is distributed — the...