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

• Decision Date: 14 December 1995
• Citation: 638 N.Y.S.2d 540,168 Misc.2d 483
• Parties: BIG APPLE FOOD VENDORS' ASSOCIATION, et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants.
• Court: New York Supreme Court

Page 540

638 N.Y.S.2d 540

168 Misc.2d 483

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

Supreme Court, New York County.

Dec. 14, 1995.

Tenzer Greenblatt L.L.P., New York City (James G. Greilsheimer and Andrew M. Zeitlin, of counsel), for plaintiffs.

Paul A. Crotty, Corporation Counsel of New York City, New York City (Terri Feinstein Sasanow and Gabriel Tassig, of counsel), for defendants.

LOUIS B. YORK, Justice.

This is an action by plaintiffs Big Apple Food Vendors' Association, et al., representing holders of multiple permits issued by defendant Department of Health ("DOH") authorizing the vending of food from sidewalk carts and vehicles on public space. Plaintiffs challenge the constitutionality of those portions of Local Laws, 1995, No. 15 of City of New York ("Local Law 15") which prohibit current permit holders from renewing more than one such permit and designate 200 of the unissued full-term permits for use exclusively in boroughs other than Manhattan. Plaintiffs argue that Local Law 15 is unconstitutional because it violates their rights to due process and the takings and equal protection clauses and is vague. Plaintiffs also seek a preliminary injunction compelling defendants to issue any remaining mobile food vending permits without regard to the multiple permit restriction or the outer borough restriction. Defendants cross-move to dismiss the complaint and argue that Local Law 15 makes permits available to a broader spectrum of individuals and entities and decreases the likelihood and ability of permit holders to illegally lease permits and/or charge excessive fees for the use of carts.

DOH is empowered to supervise and regulate the public health aspects of the city's food supply and other businesses and activities affecting public health in the city under § 556(q) of the New York City Charter. Individuals who wish to act as food vendors within the City must obtain authorization from the commissioner of DOH. (Administrative Code of City of NY, Title 17, ch. 3, subchapter 2). Mobile food vendors who operate on public space must be licensed and must also obtain permits for their vehicles or pushcarts. (Administrative Code, §§ 17-307(a)(1), 17-307(b)(1)). Permits are designated as either full-term or temporary and must be renewed every two years.

Traditionally, there was no limit on the number of permits a particular vendor could obtain or renew and DOH was not required to maintain a waiting list. There was also no geographical restriction on where permits could be used. However, as of July 30, 1983, the number of full-time permits that DOH was authorized to issue was limited to 3000, and the number of temporary permits was limited to 1000. (Administrative Code, §§ 17-307(b)(2)(a), 17-307(f)(3)(a)). This limit does not apply to vendors who are concessionaires of the Department of Parks and Recreation or to restaurants and vendors who operate on private space.

Local Law 15, which was passed by the City Council on January 19, 1995 and signed by the Mayor on February 3, 1995, amended Title 17 to prohibit the issuance of more than one permit, whether full-term or temporary, to any person. (Administrative Code, § 17-307(b)(2)(c)). Title 17 now also compels the commissioner to establish waiting lists which are to be administered in accordance with procedures to be established by rules of the commissioner. (Administrative Code, § 17-307(b)(2)(b)(ii), 17-307(b)(2)(e), 17-307(f)(3)(d)). The new law also designates 200 of the 3000 full-time permits for use exclusively in the four boroughs outside of Manhattan, fifty for each borough. (Administrative Code, § 17-307(b)(2)(b)). Finally, Local Law 15 states that mobile food vending permits shall be issued only to persons who at the time of the application have not had a permit revoked or suspended and who satisfy the commissioner that they are fit and able to conduct, maintain or operate a food vending business. (Administrative Code, § 17-307(b)(2)(c), 17-307(f)(3)(b)).

Plaintiffs assert that enforcement of Local Law 15 will have disastrous and crippling effects on the food vending industry. They contend that permit holders have relied on their ability to hold and renew multiple permits and have invested substantial sums of money to develop their businesses. Plaintiffs allege that Local Law 15 is the latest in a series of laws and regulations designed to harass and restrict their pursuit of their occupation. (Plaintiffs' Memorandum of Law at 9). They contend that three years ago the number of permits issued had fallen below the cap which was established in 1983 and that defendants have unjustifiably refused to issue the remaining permits. (Id.). Plaintiffs believe that enforcement of Local Law 15 as well as other restrictions on vending are a "thinly disguised attempt by the defendants to drive as many food vendors as possible out of business and destroy the industry as it has existed for many years." (Id.).

Defendants contend that Local Law 15 was enacted for the purpose of, among other things, making permits available to a broader spectrum of individuals and entities, as well as to decrease the likelihood and ability of permit holders to illegally lease permits and/or charge excessive fees for the use of carts. Defendants note that the permits are concentrated in a small number of owners and are primarily used in Manhattan. Defendants assert that over half of the existing food vendor permits are held by 58 corporations; 986 of the 3000 permits are held by eight corporations and three corporations controlled by one individual hold 499 permits. Defendants argue that the prohibition of multiple permit holding, and the establishment of 200 borough-specific permits are reasonably designed to achieve the goals stated above.

Plaintiffs' first argument is that Local Law 15's prohibition on holding multiple permits is arbitrary and capricious and not rationally related to a legitimate government purpose. Plaintiffs argue that if defendants' true aim was to encourage entry into this industry, they would issue any remaining licenses or eliminate the cap which was imposed in 1983.

The New York City Council is vested with "broad power to regulate the use of the city streets and to provide by local law for the good government of the city and the preservation and promotion of the health, safety and general welfare of its inhabitants." (Good Humor Corp. v. City of New York, 290 N.Y. 312, 317, 49 N.E.2d 153; New York State Constitution, art. 9, § 2(c)(10); Municipal Home Rule Law § 10(1)(ii)(a)(12); New York City Charter § 28(a)). Accordingly, "[l]egislative enactments in furtherance of the police power of a municipality are presumed to be constitutional and are judicially unassailable if they are not arbitrary and bear a rational relationship to the end sought to be achieved." (Huggins v. City of New York, 126 Misc.2d 908, 910, 484 N.Y.S.2d 748; see also Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284; Barr v. City of Syracuse, 97 Misc.2d 453, 457, 411 N.Y.S.2d 814; Collis v. Town of Niskayuna, 178 A.D.2d 868, 577 N.Y.S.2d 919). The presumption can only be upset by proof beyond a reasonable doubt. (Brady v. State, 80 N.Y.2d 596, 602, 592 N.Y.S.2d 955, 607 N.E.2d 1060; Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d at 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284). There is a further presumption that the Legislature has investigated and found facts necessary to support the legislation as well as the existence of a situation showing or indicating its need or desirability. (Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d at 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284).

Here, defendants have demonstrated a legitimate end to be achieved, i.e. "enabling a broader spectrum of individuals and entities to obtain mobile food vendor permits and in preventing illegal trafficking in this City-conferred privilege." (Defendants' Memorandum of Law at 15). Furthermore, the prohibition on multiple permits is rationally related to that interest since it prevents individuals or corporations from perpetually monopolizing permits to the exclusion of other interested parties and prevents such permit holders from charging excessive fees to those who are forced to lease the carts from them. Defendants have submitted evidence which indicates that permit holders have been willing to lease carts for as much as $9,000 while only paying $100 for the registration fee. (See e.g. Moving Affidavit at Exhibit A). Defendants also point out that such monopolies may exclude individuals from entering the industry and also allows the permit holders, rather than DOH, to determine who will be able to use the permits which are issued. Finally, Local Law 15 does not preclude plaintiffs from continuing to sell or lease mobile food vending carts or other vehicles. It merely says that such sale or lease may not include the permit for the vehicle.

Plaintiffs may well be correct in asserting that they have invested substantial amounts of time and money in developing their businesses and that the prohibition on holding multiple permits will effectively put some of them out of business because they rely on operating a fleet of carts rather than just one cart. However, "[w]hether 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, 126 Misc.2d at 910-11, 484 N.Y.S.2d 748; Health Ins. Assn. v. Harnett, 44 N.Y.2d 302, 312, 405 N.Y.S.2d 634, 376 N.E.2d 1280). Indeed, even the fact that the regulation renders it impossible for some individuals to continue in the business does not render it invalid. (Huggins v. City of New York, 126 Misc.2d at 911, 484 N.Y.S.2d 748).

The Court also rejects plaintiffs' argument that the proper means to this end would be to remove the cap on the number of permits which...