New Amber Auto Service, Inc. v. New York City Environmental Control Bd.

• Citation: 163 Misc.2d 113,619 N.Y.S.2d 496
• Parties: NEW AMBER AUTO SERVICE, INC. and Spin Holdings, Inc. d/b/a Jack's Place, Plaintiffs, v. NEW YORK CITY ENVIRONMENTAL CONTROL BOARD and the City of New York, Defendants.
• Decision Date: 09 November 1994
• Court: United States State Supreme Court (New York)

Page 496

619 N.Y.S.2d 496

163 Misc.2d 113

NEW AMBER AUTO SERVICE, INC. and Spin Holdings, Inc. d/b/a Jack's Place, Plaintiffs, v. NEW YORK CITY ENVIRONMENTAL CONTROL BOARD and the City of New York, Defendants.

Supreme Court, New York County IAS Part 2.

Nov. 9, 1994.

Jerald D. Kreppel, New York City, for plaintiffs.

Paul A. Crotty, Corp. Counsel (Desiree Kim, New York City, of counsel), for defendants.

WALTER B. TOLUB, Justice.

Plaintiffs, New Amber Auto Service, Inc. ("New Amber") and Spin Holdings, Inc. d/b/a Jack's Place ("Spin Holdings"), move for a judgment (1) declaring § 24-141 of the N.Y. City Administrative Code unconstitutional; (2) declaring § 3.3(a) of the N.Y. City Environmental Control Board's Rules and Regulations (15 RCNY 31-53(a)) unconstitutional; and (3) awarding each plaintiff remission of its fine and counsel fees.

In the alternative, plaintiff New Amber seeks a judgment pursuant to CPLR Article 78 on the grounds that the final determination of the defendant N.Y. City Environmental Control Board ("ECB") against it was arbitrary and capricious.

Defendants ECB and the City of New York cross-move to dismiss the claims of plaintiff New Amber pursuant to CPLR 3211(a)(7) and to deny plaintiff's motion for a declaratory judgment.

Defendants' cross-motion which seeks an order dismissing the claims of Spin Holdings, or in the alternative, pursuant to CPLR § 1003, dropping Spin Holdings from this action on the ground that it is a misjoined party, was held in abeyance by this court during argument on the motion and cross-motion pending the resolution of the constitutional claims asserted by New Amber.

Plaintiff New Amber is an auto body shop located in Queens, New York. On September 1, 1993, an inspector from the New York City Department of Environmental Protection ("DEP") was passing the auto body shop when he noticed one of New Amber's workmen spray painting a car which was emitting paint fumes, an "odorous air contaminant", into the open air. The inspector issued a notice of violation and hearing to New Amber for violation of § 24-141 of the Administrative Code. Thereafter, an administrative hearing was held at the ECB with regard to the violation issued and a decision was rendered by the Administrative Law Judge ("ALJ") against plaintiff. New Amber's appeal of the decision was denied on March 16, 1994.

Plaintiff Spin Holdings owns and operates a cafe in Battery Park City, New York. On January 28, 1994, Spin Holdings was issued a notice of violation and hearing by a DEP inspector for violation of § 24-141 of the Administrative Code based upon said plaintiff's emission of noxious cooking odors and fumes into the air. A hearing was held at the ECB with regard to this violation and a decision was rendered by the ALJ against Spin Holdings. Thereafter, Spin Holdings appealed the decision and the appeal is currently pending. Both plaintiffs paid their fines of $220 each.

The case at bar involves New York City's air pollution control code which has as its stated purpose "to preserve, protect and improve the air resources of the city so as to promote health, safety and welfare, prevent injury to human, plant and animal life and property, (and) foster the comfort and convenience of its inhabitants ..." (Administrative Code § 24-102). In order to control and reduce air pollution, § 24-102 declares it "to be the policy of the city to actively regulate and eliminate (harmful or objectionable) emissions ..." and, provides that the code "be liberally construed so as to effectuate the purposes described in this section ..."

§ 24-141 of the Administrative Code provides in relevant part:

" § 24-141 Emission of air contaminant (including odorous air contaminant) or water vapor; detriment to person, property or plant and animal life. No person shall cause or permit the emission of air contaminant ... or water vapor if the air contaminant or water vapor causes or may cause detriment to the health, safety, welfare or comfort of any person, or injury to plant and animal life, or causes or may cause damage to property or business ...

(b) the prohibition of this section includes, but is not limited to, emissions of odorous air contaminant from the following sources:

* * *

(20) Paint, oil, shellac, turpentine or varnish manufacture," (emphasis added)

§ 24-104 of the Administrative Code defines "air contaminant" as "any particulate matter or any gas or any combination thereof in the open air, other than uncombined water or air"; "odorous air contaminant" as "any air contaminant which is released in sufficient concentrations to be detected by the human olfactory sense"; and, "emission" as "dispersion of an air contaminant into the open air of the city."

15 RCNY § 31-53 provides in relevant part:

" § 31-53 Evidence. (a) Burden of proof. The complainant shall have the burden of proof in establishing that the respondent has committed or caused the violation charged in the notice of violation, but the proponent of any factual proposition shall be required to sustain the burden of proof with respect thereto. The notice of violation shall constitute prima facie evidence of the facts stated therein."

Unconstitutional vagueness

New Amber challenges the constitutionality of Administrative Code § 24-141 both on its face and as applied. It argues that it is vague on its face since "(t)here is no definition of what constitutes a 'detriment to the health, safety, welfare, or comfort of any person.' " It further argues that the statute has no objective standard which determines compliance with, or violation of, the law. For example, plaintiff posits that a reasonable person may not be bothered by the spray painting, where a sensitive person might. It is argued that this leads to arbitrary and discriminatory application. New Amber also challenges § 3.3(a) of the ECB Rules and Regulations on the basis that it is unconstitutionally vague and violative of due process because it fails to specify what the burden of proof is at an ECB hearing.

At the onset we observe that a legislative enactment is presumed to be valid and the party seeking to invalidate the provision has the heavy burden of demonstrating that the statute is unconstitutional. (People v. Bright, 71 N.Y.2d 376, 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355). It is the obligation of the court to construe the statute, if possible, to preserve its constitutionality. (People v. Epton, 19 N.Y.2d 496, 505, 281 N.Y.S.2d 9, 227 N.E.2d 829, cert. denied 390 U.S. 29, 88 S.Ct. 824, 19 L.Ed.2d 808).

We also note that of necessity, statutes must speak in general terms and leave room for the flexible and reasonable application of executives, administrators, and judicial officers. "(I)t is not necessary that the legislature supply administrative officials with rigid formulas in fields where flexibility in the adaptation of the legislative policy to infinitely variable conditions constitute the very essence of the programs. Rather, the standards prescribed by the Legislature are to be read in light of the conditions in which they are to be applied." (Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31, 416 N.Y.S.2d 565, 389 N.E.2d 1086).

Courts have considered the legislative intent in enacting similar statutes to the one at issue herein, i.e., to prohibit or control air contamination in the interest of health, safety, and enjoyment of life or property, and have concluded that it would be impracticable to precisely define in advance what may constitute an impermissible emission. (See, e.g., Liberty Lines Express, Inc. v. New York City Environmental Control Board, 160 A.D.2d 295, 296, 553 N.Y.S.2d 389; West Bronx Auto Shop, 33 Misc.2d 29, 223 N.Y.S.2d 984, aff'd 17 A.D.2d 772, 232 N.Y.S.2d 391, modified and aff'd 13 N.Y.2d 730, 241 N.Y.S.2d 861, 191 N.E.2d 913; Delford Industries, Inc. v. New York State Department of Environmental Conservation, 126 Misc.2d 355, 481 N.Y.S.2d 587; see also, People of the State of Michigan v. Olsonite Corporation, 80 Mich.App. 763, 265 N.W.2d 176).

A statute is unconstitutionally vague on its face if it specifies no comprehensible standard or guide capable of interpretation (Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214) or "when it cannot validly be applied to any conduct" (Brache v. County of Westchester, 658 F.2d 47, 50 (2d Cir.1981), cert. denied 455 U.S. 1005, 102 S.Ct. 1643, 71 L.Ed.2d 874; see also; Tennessee v. Garner, 471 U.S. 1, at 11-12, 105 S.Ct. 1694, at 1701-02, 85 L.Ed.2d 1).

The following two-part test has been used by the United States Supreme Court to determine whether a statute is unconstitutionally vague as applied: "whether the statute give(s) the person of ordinary intelligence a reasonable opportunity to know what is prohibited' and ... whether the law 'provide(s) explicit standards for those who apply (it).' " (United States v. Schneiderman, 968 F.2d 1564, 1568 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1283, 122 L.Ed.2d 676 (1993), quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222; see also, Quintard Associates, Ltd. v. New York State Liquor Authority, 57 A.D.2d 462, 394 N.Y.S.2d 960, app. dsm'd. 42 N.Y.2d 973, 398 N.Y.S.2d 1035, 367 N.E.2d 878).

The New York Court of Appeals has noted that " 'due process requires only a reasonable degree of certainty so that individuals of ordinary intelligence are not forced to guess at the meaning of the statutory terms' " (41 Kew Gardens Rd. Assoc. v. Tyburski, 70 N.Y.2d 325, 336, 520 N.Y.S.2d 544, 514 N.E.2d 1114, quoting Foss v. City of Rochester, 65 N.Y.2d 247, 253, 491 N.Y.S.2d 128, 480 N.E.2d 717; City of New York v. Castro, 160 A.D.2d 651, 652, 559 N.Y.S.2d 508; see also, Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322).

In addition to providing a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, a statute...