Big Apple Food Vendors' Ass'n v. City of New York

• Decision Date: 18 June 1996
• Citation: 644 N.Y.S.2d 216,228 A.D.2d 282
• Parties: BIG APPLE FOOD VENDORS' ASSOCIATION, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 216

644 N.Y.S.2d 216

228 A.D.2d 282

BIG APPLE FOOD VENDORS' ASSOCIATION, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

June 18, 1996.

Judd Burstein, Thomas R. Newman, New York City, for plaintiffs-appellants.

Elaine R. Witkoff, New York City, for defendants-respondents.

Before MURPHY, P.J., and MILONAS, ROSS, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Louis York, J.), entered December 14, 1995, which, inter alia, granted the motion by defendants The City of New York, the New York City Department of Health and Commissioner Margaret A. Hamburg, M.D., for summary judgment dismissing the complaint to the extent of declaring that Local Laws, 1995, No. 15 of the City of New York ("Local Law 15") is constitutional, unanimously affirmed, without costs.

The IAS court properly determined that the prohibition of Local Law 15 against the holding of multiple permits by a single individual or entity for the vending of food from sidewalk carts and vehicles on public space represents a reasonable exercise of the police power (see, Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11-12, 390 N.Y.S.2d 827, 359 N.E.2d 337; Duchein v. Lindsay, 42 A.D.2d 100, 102, 345 N.Y.S.2d 53, affd, 34 N.Y.2d 636, 355 N.Y.S.2d 375, 311 N.E.2d 508, appeal dismissed 419 U.S. 809, 95 S.Ct. 21, 42 L.Ed.2d 35). The prohibition is a logical and reasonable outgrowth of the limitation placed on the maximum number of permits the New York City Department of Health is authorized to issue, established by Local Law 17 of 1983 (see, Short Stop Indus. Catering Corp. v. City of New York, 127 Misc.2d 363, 366, 485 N.Y.S.2d 921), and therefore is rationally related to the legitimate interest of the City in enabling a broader spectrum of individuals and entities to obtain mobile food vendor permits and in preventing illegal trafficking in this City-conferred privilege (see, Good Humor Corp. v. City of New York, 290 N.Y. 312, 317, 49 N.E.2d 153; Huggins v. City of New York, 126 Misc.2d 908, 909, 484 N.Y.S.2d 748). The issue of "whether the legislation is the most efficacious means of achieving the desired goal is not for the court to consider" (Huggins v. City of New York, supra at 910-911, 484 N.Y.S.2d 748).

Nor did the IAS court err in rejecting the contentions by plaintiffs that the multiple permit restriction of Local Law 15 violates their right to due process and equal protection of the law or constitutes a violation of the Takings Clause in that it allegedly deprives them of a constitutionally protected property right. Plaintiffs lack any protected property interest in renewing multiple mobile food vending permits in perpetuity (see, Jones v. Reagan, 748 F.2d 1331, 1338-1339, cert. denied 472 U.S. 1029, 105 S.Ct. 3505, 87 L.Ed.2d 636; Khalil v. Spencer, 143 Misc.2d 429, 541 N.Y.S.2d 301). The City Council has the plenary power to define the scope of entitlement to mobile food vendor permits and the concomitant authority to enact new laws that redefine, alter or eliminate the scope of that entitlement (see, Story v. Green, 978 F.2d 60, 63; Matter of Lap v. Axelrod, 95 A.D.2d 457, 459, 467 N.Y.S.2d 920). Nor does the establishment of the borough-specific permits violate the due process clause. Defendants' goal of ensuring...