People on Complaint of Ullmann v. Butcher
| Decision Date | 15 December 1960 |
| Citation | 209 N.Y.S.2d 723,28 Misc.2d 24 |
| Parties | PEOPLE of the State of New York on the Complaint of Walter ULLMANN v. Oscar BUTCHER, Defendant. |
| Court | New York Court of Special Sessions |
Charles H. Tenney, Corporation Counsel, New York City (Joseph Entel, New York City, of counsel), for the People.
Oscar Butcher, in pro. per.
RICHARD F. DALY, Magistrate.
This case was tried before me, sitting, with defendant's consent, as a Court of Special Sessions, held by one city magistrate. My decision, therefore, is upon the merits. The substantial facts are not in dispute.
The defendant, the owner of premises 37 Longfellow Avenue, Staten Island, New York, is charged with violating the provisions of Section 143.03 of the New York City Health Code in that pursuant to notices of the Department of Health of the City of New York he has failed to connect the plumbing facilities in his residence with the municipal sewer in Longfellow Avenue.
The defendant contends that by virtue of outstanding permits for a septic tank which have never been revoked and the health inspector's admission that no health hazard or nuisance exists he is not obliged to comply with the notices.
On the trial the defendant offered in evidence permits from the Borough President and the Department of Health for said septic tank; a Certificate of Occupancy from the Department of Buildings; a permit from the Fire Department. The permit from the Borough President dated December 7, 1955 states 'This permit * * * is subject to revocation at any time by the Borough President * * *'. The permit from the Department of Health dated December 12, 1955 states 'This permit shall be valid only as long as the said sewage disposal system does not create a health hazard or a nuisance.' A municipal sewer has been installed along Longfellow Avenue and connections thereto have been permitted since June 17, 1959.
The people contend that Section 143.03 of the New York City Health Code automatically revoked the permits and that said section requires the defendant to connect with the sewer. The contention necessarily involves the question of the right to revoke existing permits and the application of the law relating to the exercise of the police power. Section 558 of the New York City Charter provides that the Sanitary Code of the City of New York (now called New York City Health Code) shall have the full force and effect of law. Section 561 of the charter provides that the Board of Health may in its discretion grant, suspend or revoke permits for businesses or other matters in respect to any subject regulated by the department.
The New York City Health Code (revised Sanitary Code) was enacted by the Board of Health on March 23, 1959, but did not take effect until October 1, 1959. Part of the Resolution of the Board of Health in enacting the Health Code reads as follows:
'Resolved further, that all permits, approvals or certificates heretofore or which may be issued prior to the effective date of this resolution by the Board of Health of the City of New York, the Commissioner of Health of the City of New York or the Department of Health of the City of New York pursuant to the Sanitary Code of the City of New York or regulations relating to said Sanitary Code, in effect prior to the effective date of this resolution and which permits, approvals or certificates are in effect and valid on the effective date of this resolution shall continue in full force and effect until the expiration thereof, if any, unless sooner revoked by the Commissioner of Health or the Board of Health of the City of New York, but the activities carried on under such permits, approvals or certificates shall, following the effective date of this resolution, comply in all other respects with the provisions of the Sanitary Code of the City of New York as reenacted hereby.' (Italics supplied.)
Section 143.03 of the New York City Health Code reads as follows:
'Sewage from any buildings or premises shall be discharged directly into the municipal sewage disposal system or into a facility connecting with such municipal system, but if there is no public sewer or other part of the municipal sewage disposal system to which connection can be made from the building or premises concerned, or if it is impracticable to discharge sewage from such building or premises into the municipal system, a private sewage disposal system may be used. * * *'
The New York City Health Code is designed for the preservation of human life and for the care, promotion and protection of Health. A law designed to protect the health of the public should be liberally construed and the courts should give effect to its obvious purposes. This rule of construction is well settled in New York. In People v. Frudenberg, 209 N.Y. 218, at page 221, 103 N.E. 166, at page 167, the court in applying the rule to the Sanitary Code, stated: 'Section 183 of the Sanitary Code is designed to protect the public health, and it should receive at the hands of the court a liberal interpretation.' See also People ex rel. Ogden v. McGowan, 118 Misc. 828, 195 N.Y.S. 286; People ex rel. Newman v. Murray, 174 Misc. 251, 19 N.Y.S.2d 902; Cranston, Inc. v. Department of Health of City of New York, 168 Misc. 749, 6 N.Y.S.2d 275.
People on Complaint of Yonofsky, v. Blanchard, 288 N.Y. 145, 42 N.E.2d 7, upheld the constitutionality of the legislative power of the Board of Health to add to and alter, amend or repeal any part of the Sanitary Code as well as the Regulations regarding to the matter contained in the said code.
Must the defendant comply with the provisions of the Health Code even though his permits have not been revoked and his septic tank has not become a nuisance?
The resolution aforementioned declares that defendant's permits are still in full force and effect unless sooner revoked by the Commissioner of Health, but the 'activities' carried on under such permits, i. e., discharging the sewage from the premises, must, nevertheless, comply in all other respects with the provisions of the Health Code. The court interprets this to mean that the defendant must comply with section 143.03 of the Health Code.
Is Section 143.03 of the Health Code a reasonable enactment in the exercise of the police power to avoid danger to public health?
Jordan v. Smith, 137 Misc. 341, 242 N.Y.S. 142, affirmed 254 N.Y. 585, 173 N.E. 877, held that legislation relating to sewers is an exercise of police power in interest of the health and well being of the general public.
The fact that defendant's septic tank has as yet not become a nuisance does not affect the power of the Board of Health to anticipate that possible evil or to legislate to prevent it.
The Court of Appeals in Stubbe v. Adamson, 220 N.Y. 459, at page 469, 116 N.E. 372, at page 375, stated:
'The Legislature is justified in guarding against evils both real and fairly to be anticipated, by any legislation which reasonably tends to prevent them, and it has a wide discretion in formulating the means which shall be adopted to this end. It is a sufficient basis for legislative action if only there are reasonable grounds for belief that the evil may occur, and even though there be 'an earnest conflict of serious opinion on the subject''.
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