Grossman v. Baumgartner

• Decision Date: 02 June 1966
• Citation: 218 N.E.2d 259,271 N.Y.S.2d 195,17 N.Y.2d 345
• Parties: , 218 N.E.2d 259 Fred GROSSMAN et al., Appellants, v. Leona BAUMGARTNER, as Commissioner of Health of the City of New York, et al., Respondents
• Court: New York Court of Appeals Court of Appeals

Page 195

271 N.Y.S.2d 195

17 N.Y.2d 345, 218 N.E.2d 259

Fred GROSSMAN et al., Appellants, v. Leona BAUMGARTNER, as Commissioner of Health of the City of

New York, et al., Respondents.

Court of Appeals of New York

June 2, 1966.

Lester Landy, Brooklyn, for appellants.

J. Lee Rankin, Corporation Counsel (Benjamin Offner and Seymour B. Quel, New York City, of counsel), for respondents.

Isidore Silver, New York City, for New York Civil Liberties Union, amicus curiae.

FULD, Judge.

Whether the prohibition against tattooing, provided by New York City's Health Code, constitutes an impairment of constitutional right, is the question we are here called upon to resolve.

The Health Code of New York City, in section 181.15, recites that it 'shall be unlawful for any person to tattoo a human being, except * * * for medical purposes by (one) licensed * * * to practice medicine or osteopathy.' Each of the plaintiffs was engaged in the business of tattooing in Coney Island for some years before the provision became effective in 1961. They seek a judgment (1) declaring that the section is unconstitutional and (2) enjoining the defendants, the Board of Health and the Department of Health, from enforcing it.

At the time of the trial, the plaintiff Grossman was a laborer, the plaintiff Funk, a roofer. The former testified in detail about the manner in which he had operated his tattooing parlor six days a week, all year round, from noon to midnight, in compliance with the then applicable rules of the Board of Health, until he was forced out of business by the new Health Code provision. He had, he noted, used a sterilizer and sterilized the dyes (which were employed) in pyrex baby bottles; he admitted that he wore no gloves and that the tattooing at times resulted in some bleeding.

The evidence offered on behalf of the defendants strongly supported the conclusion that there was a connection between tattooing and serum hepatitis, that those tattooed, despite all precautions taken by the tattooer, were subjected to a far greater risk of contracting hepatitis than those not tattooed.

Thus, the Assistant Commissioner of the City's Health Department, in charge of its inspection service, testified that in 1959 several cases of hepatitis, one resulting in death, had been traced to tattooing. Although the health authorities initially believed that it would be possible to adopt stringent regulations which would permit tattooing without danger to the public, supervision of the tattoo parlors to assure proper sterilization was found to be a practical impossibility and dangerous and unsanitary conditions continued to prevail. Persuaded that 'the threat of hepatitis (from tattooing) was too imminent * * * too dangerous and too deadly' to permit it to depend on regulatory measures to assure proper sterilization, the board enacted the challenged prohibitory section. The director of the Health Department's bureau of preventable diseases also testified that there was a direct causal connection between tattooing and the disease. It was his opinion, based on a statistical analysis, that those who were tattooed ran a risk of contracting hepatitis 'seven times as great' as those not attooed and that 'the tattoo industry, from a public health point of view * * * (was) not regulatable' in New York City. Other witnesses--a dermatologist, a psychiatrist and a public health expert--furnished additional confirmation for this view: all of them agreed that tattooing was a health hazard that could be controlled only by prohibition.

Despite this testimony, the trial court concluded, in essence, that there was no justification for abandoning regulation in favor of prohibition and declared the Health Code provision unconstitutional. The Appellate Division reversed with the comment that '(t)he record shows, to our minds conclusively, that the prohibition of lay tattooing was an advisable procedure for the security of life and health'. We agree with this determination.

A statute--or an administrative regulation which is legislative in nature--will be upheld as valid if it has a rational basis, that is, if it is not unreasonable, arbitrary or capricious. (See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 et seq., 58 S.Ct. 778, 82 L.Ed. 1234; Nebbia v. New York, 291 U.S. 502, 525, 54 S.Ct. 505, 78 L.Ed. 940; Chiropractic Ass'n of New York v. Hilleboe, 12 N.Y.2d 109, 237 N.Y.S.2d 289, 187 N.E.2d 756; Matter of Stracquadanio v. Department of Health, 285 N.Y. 93, 97, 32 N.E.2d 806, 808.) In the case before us, there is no warrant for the charge that the Board of Health acted arbitrarily or capriciously or that the regulation under attack was unreasonable. A review of the evidence given by the defendants' witnesses thoroughly demonstrates the compelling medical necessity for section 181.15 of the Health Code. Not only was a connection shown between tattooing and hepatitis but the proof convincingly established that rigorous regulation would be ineffective. The police power is exceedingly broad, and the courts will not substitute their judgment of a public health problem for that of eminently qualified physicians in the field of public health. (See, e.g., Chiropractic Ass'n of N.Y. v. Hilleboe, 12 N.Y.2d 109, 113--114, 237 N.Y.S.2d 289, 290--291, 187 N.E.2d 756, 757, supra; Matter of Viemeister v. White, 179 N.Y. 235, 72 N.E. 97, 70 L.R.A. 796; see, also, Town of Hempstead v. Goldblatt, 9 N.Y.2d 101, 105, 211 N.Y.S.2d 185, 187, 172 N.E.2d 562, 564.) As the Supreme Court has expressed it, 'The judicial function is exhausted with the discovery that the relation between means and end is not wholly vain and fanciful, an illusory pretense.' (Williams v. Mayor, 289 U.S. 36, 42, 53 S.Ct. 431, 433, 77 L.Ed. 1015; see, also, Matter of Application of Jacobs, 98 N.Y. 98, 115.) In its wisdom, the board in the case before us decided that the prohibition of lay tattooing was essential for the protection of the public health, and, as stated above, it may not be said that that determination was unreasonable or without justification. It follows, therefore, that the legislation is valid, and this is so notwithstanding that it will occasion the discontinuance of an existing business. Cf. Ferguson v. Skrupa, 372 U.S. 726, 731--732, 83 S.Ct. 1028, 10 L.Ed.2d 93; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535, 69 S.Ct. 251, 93 L.Ed. 212.)

The further plaint that the enactment of section 181.15 was an unconstitutional exercise of legislative power by the Board of Health, in violation of section 1 of article III of the State Constitution, may be quickly answered. As is apparent, subdivision b of section 558 of the...