People v. Nemadi

• Decision Date: 21 June 1988
• Parties: The PEOPLE of the State of New York, v. Ben NEMADI, Sharok Jacobi, Shaben Realty Associates, Inc., Defendants.
• Court: New York City Court

Page 693

531 N.Y.S.2d 693

140 Misc.2d 712

The PEOPLE of the State of New York, v. Ben NEMADI, Sharok Jacobi, Shaben Realty Associates, Inc., Defendants.

Criminal Court of the City of New York New York County, SAPP 2.

June 21, 1988.

Office of the Corp. Counsel of the City of New York (Linda Stanch, of counsel and Peter L. Zimroth), New York City, for the People.

Robert Cahn, of counsel and Walter Cohen, New York City, for defendants.

LOUISE GRUNER GANS, Judge.

Defendants, owners of a multiple dwelling at 219-21 West 145th Street, Manhattan, are charged by two separate informations, with failing to "provide, install and maintain window guards" in a number of apartments in that building, in violation of New York City Health Code Section 131.15 as amended and of Local Laws, 1940, No. 33 of the City of New York (Admin.Code, Section 17-123). These sections of the New York City Health and Administrative Codes require the installation of window guards in apartments inhabited by children under the age of 11. The alleged failure to install window guards, where required, is the basis for the additional charges of failure "reasonably to act and to take necessary precautions" to protect human life and health, New York City Health Code, Section 3.09, and of maintaining a nuisance, New York City Health Code, Section 3.11.

Defendants have moved to dismiss the charges against them claiming that the window guard regulations, as recently amended, are void because they were never published in the City Record. The regulations are also said to contravene numerous unspecified constitutional requirements in that 1. no intent or mens rea is allegedly required to establish a violation of the window guard regulations; 2. culpability under the window guard regulations is premised on an irrebuttable presumption of guilt; 3. Section 558(e) of the City Charter arbitrarily classifies the violation of every New York City Health Code regulation, including Section 131.5, as a misdemeanor; 4. these provisions are enforced in a discriminatory fashion in that only private landlords and not managers of publicly owned housing are prosecuted; 5. the regulations constitute an unauthorized tax; and 6. they subject the defendants to severe economic hardship.

Extensive consideration of defendants' omnibus challenge to New York City Health Code, Section 131.15 shows it to be without merit.

A brief description of the underlying statutory/regulatory scheme may be helpful to an understanding of the issues and the applicable law. Section 131.15 of the New York City Health Code, requiring the installation of window guards in apartments where children under the age of 11 reside, was first enacted in 1976. The Section set forth a detailed landlord-tenant inquiry-response procedure to be followed by landlords in order to determine which apartments require window guards. Under the 1976 enactment, property owners subjected to criminal prosecution or civil penalties for failure to install these safety devices could defend by showing that they had made the proper inquiries and had received either a negative response or no response from their tenants. Former Section 131.15(b).

In 1986, the New York City Administrative Code was amended and implementing regulations ("the regulations") promulgated. Local Laws No. 33 of 1986, codified at N.Y.C. Administrative Code, Section 17-123. The amendments and regulations were duly published. ¹ Instead of the previous landlord-tenant inquiry response procedure, the amendments and regulations require landlords to provide their tenants with annual notices prescribed by the Department of Health, and to attach the notices to all leases. Sections 2, 3 of the regulations.

Window guards must now be installed not only where children under the age of 11 reside, but also on request, even where no children are in residence. Regulations The 1986 amendments to the New York City Administrative Code were accompanied by amendments to the New York City Health Code, Section 131.15, including the expanded obligation to provide window guards on request, Section 131.15(c). Not only was the defense based on a tenant's failure to respond or on a negative response deleted, but the new Section 131.15 made it the "duty of each such person who manages or controls a multiple dwelling to ascertain whether such child resides therein...." New York City Health Code, Section 131.15(a). In addition, failure to install or maintain window guards is declared to be a public nuisance, as well as a condition dangerous to life and health, Section 131.15(d).

Section 3(a), (c), (d). When those in control of a multiple dwelling lack knowledge of a tenant's need or desire for window guards, they are required to conduct an inspection of the affected apartment or apartments. Landlords must inform the Health Department and request its assistance when notices provided pursuant to regulations, Section 3(a), (b), (d) are not returned, and whenever they are refused access to a housing unit in order to conduct an inspection. A tenant's negative response or failure to respond was eliminated as a defense if the owner had actual knowledge of the need or desire for window guards or did not make the required effort to find out. Regulations, Section 3. For the first time, the regulations penalize conduct by tenants impeding the effectiveness of the window guard program. Refusal to respond to a landlord's notice or to permit inspection is prohibited. Regulations, Section 4.

Taken together, Health Code, Section 13.1.15 as amended in 1986, and Section 17-123 of the Administrative Code along with the implementing regulations will be referred to hereafter as the "Window Guard Rules."

STRICT LIABILITY

Defendants contend that the imposition of criminal sanctions for violation of Section 131.15 of the New York City Health Code may not be premised on strict liability.

It is true that "criminal offenses requiring no mens rea have a 'generally disfavored status.' " Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985). However, particularly in areas affecting public health and safety, it has long been recognized that the creation of strict liability offenses was a valid exercise of state and local police power. Typically, strict liability offenses are prescribed as a matter of legislative policy rather than because of their intrinsically evil nature. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); People v. Munoz, 9 N.Y.2d 51, 211 N.Y.S.2d 146, 172 N.E.2d 535 (1961); People v. Swift and Co., 286 N.Y. 64, 35 N.E.2d 652 (1941); People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 121 N.E. 474 (1918); Tenement House Department v. McDevitt, 215 N.Y. 160, 109 N.E. 88 (1915); People v. Miller, 138 Misc.2d 639, 524 N.Y.S.2d 622 (Sup.Ct., N.Y.Co., 1988).

Indeed, Penal Law, Sections 15.10 and 15.15 recognize that strict liability offenses may be created by the Penal Law. People v. Davis, 112 Misc.2d 138, 446 N.Y.S.2d 159 (Crim.Ct., Bronx Co., 1981).

In enacting Admin.Code, Section 17-123 and Health Code, Section 131.15 pursuant to City Charter, Section 558(e), the City Council and Health Department respectively have acted to protect the lives of young children from accidental death and injury resulting from window falls, based on extensive findings concerning the frequency of such accidents, as noted in Bryant Westchester Realty Corp. v. Bd. of Health, 91 Misc.2d 56, 397 N.Y.S.2d 322 (Sup.Ct., N.Y.Co., 1977) and Sorbonne Apts. v. Bd. of Health, 88 Misc.2d 970, 390 N.Y.S.2d 358 (Sup.Ct., N.Y.Co., 1976).

The hazard sought to be prevented by the Window Guard Rules is of the sort traditionally dealt with by means of strict liability offenses. The complexity of modern life, especially in modern urban areas, has "call[ed] into existence new duties and crimes which disregard any ingredient of The recent decision by the Court of Appeals in People v. Coe, 71 N.Y.2d 852, 527 N.Y.S.2d 741, 522 N.E.2d 1039 (1988), addressed the question of when criminal prosecution of violations of the Public Health Law was permissible on the basis of strict liability.

                intent."   Morissette v. United States, 342 U.S. at 253, 72 S.Ct. at 245.   Numerous and detailed regulations controlling the exposure of workers to industrial hazards, the high speed of mechanized transport, the crowding and conditions of living quarters, and mass distribution of food and drugs all seek to minimize risk to the public health safety or welfare.   Id. at 254, 72 S.Ct. at 245.   Like these programs, the several provisions governing window guards are a comprehensive scheme to protect the lives and safety of young children by requiring of those who control and are obligated by law to maintain residential property that they take the elemental precautions dictated by common sense.  Effective enforcement of such broad based programs would be illusory if intent were made an element of these offenses.   People v. Swift, 286 N.Y. 64, 68-69, 35 N.E.2d 652 (1941);   People v. Ortiz, 125 Misc.2d 318, 479 N.Y.S.2d 613 (Crim.Ct., Bronx Co., 1984)
                

Coe, supra, involved an interpretation of the language of Section 12-b(2) of the Public Health Law imposing sanctions on any person who "wilfully violates" a provision or regulation of the Public Health Law. The Court of Appeals recognized that for a statute to impose strict liability, "a clear legislative intent to impose strict criminal liability" is required. At 855, 527 N.Y.S.2d 741, 522 N.E.2d 1039, Penal Law, Section 15.15(2). Not finding evidence of such intent, the Court held that the phrase "wilfully violates" in P.H.L., Section 12-b(2) requires a showing that the underlying offense (a violation of P.H.L., Section 2803-d(7)), was committed "knowingly," that is, with a culpable mental state.

Sanctions for violations of...