City of New York v. Job-Lot Pushcart

• Decision Date: 14 March 1995
• Docket Number: JOB-LOT,D,JA-R
• Citation: 623 N.Y.S.2d 851,213 A.D.2d 210
• Parties: CITY OF NEW YORK, Plaintiff-Respondent, v.PUSHCART, et al., Defendants,efendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 851

623 N.Y.S.2d 851

213 A.D.2d 210

CITY OF NEW YORK, Plaintiff-Respondent, v. JOB-LOT PUSHCART, et al., Defendants, JA-RU, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

March 14, 1995.

G. Gutwirth, for respondent.

F.B. Locker, for appellant.

Before MURPHY, P.J., and ROSENBERGER, ELLERIN, RUBIN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about April 12, 1994, which, inter alia, granted plaintiff's motion for a preliminary injunction against defendant JA-RU, enjoining it from violating New York City Administrative Code § 10-131(g), affirmed, without costs.

The IAS court properly found that Administrative Code § 10-131(g), which, inter alia, governs the sale, possession, manufacturing, distributing and transporting of toys or imitation pistols or revolvers, was not preempted by 15 U.S.C. § 5001, and Federal regulation 15 CFR part 1150, which also governs, inter alia, the manufacture, shipping, and transport of any toy, look-alike and imitation firearms.

Consideration of issues arising under the Supremacy Clause of the U.S. Constitution (Art. VI) "start[s] with the assumption that the historic police powers of the States were not to be superseded by Federal Act unless that was the clear and manifest purpose of Congress" (Rice v. Santa Fe Elev. Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447). "In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law ..." (Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407). A conflict occurs either because "compliance with both federal and state regulations is a physical impossibility" (Florida Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248), or because the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" (Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581). Here, rather than being inconsistent, the code complements the Federal statute inasmuch as both statutes may be satisfied simultaneously. In this regard, defendant argues that the Federal statute allows what the Administrative Code prohibits, namely, the sale of black, blue, silver or aluminum guns, provided they contain the required blaze orange plug or blaze orange band markings prescribed by the federal regulations. However, it is feasible to make a red or purple toy gun with an orange band, thus satisfying both laws. Defendant also claims that the Federal statute expressly provides for a blaze orange plug or a band marking on the barrel of the toy, recessed no more than 6 millimeters from the muzzle end of such barrel (15 U.S.C. § 5001[b][1], [2]; 15 CFR 1500.3[b], while Administrative Code § 10-131(g) requires that the barrel of such guns "be closed with the same material of which the toy or imitation pistol or revolver is made for a distance of not less than one-half inch from the front of said barrel. It gives an example that "if a plastic blaze orange plug is inserted in a metal toy gun, it would be violative of the Code on its face." However, a toy gun with a closed barrel and an orange blaze band, made in a color other than those prohibited by the Administrative Code, would also satisfy both laws. As defendant concedes, the Federal statute allows for a "blaze orange band" around the perimeter of the gun barrel on functioning water or light-emitting guns in lieu of plugging in the barrel in its entirety. Moreover, as the I.A.S. court properly found, the purpose of the Federal statute and Administrative Code are the same: to prevent the sale of toy guns so closely copied from actual weapons as not to be readily discernible as toys, which plaintiff has shown have been utilized in the commission of violent crimes.

Accordingly, the court properly found that plaintiff was likely to prevail in its effort to enforce the Administrative Code against defendant. In addition, its conclusion that irreparable harm would occur without the injunction, based on the role toy guns play in the commission of crimes, and its determination that the equities balance in plaintiff's favor, on the grounds that the City has a right to protect its citizenry, were well founded.

We have reviewed defendant's other claims and find them to be without merit.

All concur except ROSENBERGER and RUBIN, JJ., who dissent in a memorandum by RUBIN, J., as follows:

RUBIN, Justice, dissenting.

At issue on this appeal is whether a section of the New York City Administrative Code that regulates the sale, possession and use of toy guns ( § 10-131[g] is preempted by federal legislation entitled "Penalties for Entering Into Commerce of Imitation Firearms" (15 U.S.C. § 5001; Coalition of New Jersey Sportsmen v. Florio, 744 F.Supp. 602, 607). The Administrative Code provision, enacted into law in 1955, makes it unlawful "to sell or offer for sale, possess or use or attempt to use or give away, any toy or imitation pistol or revolver which substantially duplicates an actual pistol or revolver, unless said imitation or toy pistol or revolver shall be colored in colors other than black, blue, silver or aluminum, and further provided that the barrel of said toy or imitation pistol or revolver shall be closed with the same material of which the toy or imitation pistol or revolver is made for a distance of not less than one-half inch from the front end of said barrel" ( § 10-131[g]. The Administrative Code also requires "the name of the manufacturer or some trade name, mark or brand by which the manufacturer can be readily identified" to be stamped legibly on the item.

Plaintiff brought this action seeking to permanently enjoin defendants from continuing to violate Administrative Code § 10-131(g) and from maintaining what it contends is a common law nuisance. Supreme Court granted a motion by plaintiff to preliminarily enjoin defendants from distributing the toy guns which, according to plaintiff's brief, are "entirely black in color * * * except for one orange piece at the tip" and fail to carry "any stamp bearing the name of the manufacturer, trade name or brand". Defendants assert, however, and plaintiff does not deny, that the toys are in full compliance with federal legislation governing their coloring and markings.

In 1988, Congress enacted 15 U.S.C. § 5001, providing detailed requirements regarding the appearance of non-functional firearms. Insofar as pertinent to the facts of this case, the law prohibits "any person to manufacture, enter into commerce, ship, transport, or receive any toy, look-alike, or imitation firearm" without a "blaze orange plug inserted in the barrel * * * recessed no more than 6 millimeters from the muzzle end of the barrel of such firearm" (15 U.S.C. § 5001[a], [b]. The statute states that: "The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall--(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or (ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B-B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure" (15 U.S.C. § 5001[g].

It is apparent from even a cursory examination of the Administrative Code provision that its requirements for the marking and identification of toy firearms are inconsistent with those contained in the federal statute. It is also hard to imagine a more specific expression of Congressional intent than the preemption of local ordinances that "provide for markings or identification inconsistent with provisions of this section" (15 U.S.C. § 5001[g]. Undeterred by either the obvious inconsistency or the intent of Congress, Supreme Court held that the Administrative Code provision is not inconsistent with federal law because "making a toy gun, red or purple, or yellow or green and putting a manufacturer's label on it could simultaneously be done by a manufacturer together with the insertion of an orange plug, that is if the manufacturer wanted his products...