COURT OF APPEALS
STATE OF NEW YORK
APL-2013-00291
NEW YORK STATEWIDE COALITION OF HISPANIC CHAMBERS OF
COMMERCE; THE NEW YORK KOREAN-AMERICAN GROCERS
ASSOCIATION; SOFT DRINK AND BREWERY WORKERS UNION,
LOCAL 812, INTERNATIONAL BROTHERHOOD OF TEAMSTERS; THE
NATIONAL RESTAURANT ASSOCIATION; THE NATIONAL
ASSOCIATION OF THEATRE OWNERS OF NEW YORK STATE; and
THE AMERICAN BEVERAGE ASSOCIATION,
Petitioners-Respondents,
For a Judgment Pursuant to Articles 78 and 30 of the Civil Practice Law and
Rules,
- against -
THE NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL
HYGIENE; THE NEW YORK CITY BOARD OF HEALTH; and DR.
THOMAS FARLEY, in his Official Capacity as Commissioner of the New
York City Department of Health and Mental Hygiene,
Respondents-Appellants.
BRIEF OF AMICI CURIAE WILFREDO LOPEZ AND ANDREW
GOLDBERG IN SUPPORT OF RESPONDENTS-APPELLANTS
Andrew Goldberg, Esq.
Attorney for Amici Curiae
30 Fifth Avenue, 10B
New York, New York 10011
Tel.: 917-922-9697
April 15, 2014
TABLE OF CONTENTS
Page
Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of Interest of the Amici Curiae.. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Point I.
THERE ARE SOUND PUBLIC HEALTH REASONS WHY
THE CITY CHARTER VESTS LEGISLATIVE POWER IN THE
BOARD OF HEALTH AND THE CHARTER ITSELF DOES
NOT MAKE THE BOARD SUBSERVIENT TO THE CITY
COUNCIL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Point II.
THE APPELLATE DIVISION’S HOLDING THAT THE
BOARD MUST LOOK TO THE CITY COUNCIL FOR A
SPECIFIC DIRECTIVE EXCEPT IN THE SITUATION OF A
“HAZARD PER SE” IS WRONG AS A MATTER OF LAW
AND WILL SEVERELY UNDERCUT THE BOARD’S
ABILITY TO ACT PROMPTLY AND EFFECTIVELY TO
PUBLIC HEALTH CHALLENGES.. . . . . . . . . . . . . . . . . . . . . . . . . 23
Point III.
FOR THE REASONS STATED BY JUDGE BELLACOSA IN
BOREALI V. AXELROD, THE BOREALI PRECEDENT
SHOULD NOT BE APPLIED TO THE NEW YORK CITY
BOARD OF HEALTH. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1
TABLE OF AUTHORITIES
Cases
Board of Health v. Heister, 37 N.Y. 661 (1868). . . . . . . . . . . . . . . . . . . . . . 30
Boreali v. Axelrod, 71 N.Y.2d 1 (1987). . . . . . . . . . . . . . . . . . . . . . . . . 29-32
Grossman v Baumgartner, 17 NY2d 345 (1966). . . . . . . . . . . 10, 11, 23, 30
In re Bakers Mut. Ins. Co., 301 N.Y. 21 (1950). . . . . . . . . . . . . . . . . . . . . . 30
Paduano v. City of New York, 45 Misc.2d 718 (Sup. Ct. N.Y. Co.),
aff’d on op. below, 24 A.D.2d 437 (1st Dep’t 1965), aff’d,
7 N.Y.2d 875 (1966), cert. denied, 385 U.S. 1026 (1967). . . . . . . 23, 24, 30
People v. Blanchard, 288 N. Y. 145 (1942). . . . . . . . . . . . . . . . . . . . . . 11, 30
People ex rel. Lieberman v. Vandecarr, 175 N.Y. 440 (1903),
aff’d on other grounds, 199 U.S. 552 (1905). . . . . . . . . . . . . . . . . . . . . . . . 30
People ex rel. Knoblauch v. Warden of Jail of Fourth
Dist. Magistrate’s Court, 216 N.Y. 154 (1915). . . . . . . . . . . . . . . 10, 11, 30
Quaker Oats Co. v. City of New York and Hill Packing Co.
v. City of New York, 295 N.Y. 527 (1946), aff’d mem.,
33 U.S. 787 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Schulman v. New York City Health & Hospitals Corp.,
38 N.Y.2d 234 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 30
Statutes and Laws
1901 City Charter § 1172. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1938 City Charter § 558. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2
1967 City Charter § 1706(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
City Charter § 553. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
City Charter § 554. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
City Charter § 556. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-21
City Charter § 558. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 12, 16, 19, 22
L.1866, Ch. 74, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
L.1866, Ch. 686, § 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Public Health Law § 225(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Public Health Law § 2168. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Patient Protection and Affordable Care Act of 2010, § 4205.. . . . . . . . . . . 31
Rules and Regulations
Health Code § 11.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Health Code § 13.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Health Code § 81.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Health Code § 81.08. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 27
Health Code § 81.50. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 26
Health Code § 131.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Health Code § 141.08. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Health Code Article 165. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3
Health Code § 173.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 27
Health Code § 173.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Other Authorities
Baumgartner, Leona, One Hundred Years of Health:
New York City, 1866 - 1966, Bull. N.Y. Acad. Med,
Vol. 45, No. 6 (June 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-16
Breiger, Gert H., Sanitary Reform in New York City:
Stephen Smith and the Passage of the Metropolitan Health Bill,
Bulletin of the History of Medicine, Vol. XL, No. 5,
September-October, 1966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Final Report from the 2001 Charter Revision Commission . . . . . . . . . . . . 16
Report of the 1936 Charter Revision Commission. . . . . . . . . . . . . . . . . . 7, 15
STATEMENTS OF INTEREST OF THE AMICI CURIAE
Wilfredo Lopez was formerly the Deputy General Counsel of the New
York City Department of Health from 1980 to 1992 and General Counsel from
1992 to 2006. As General Counsel, he oversaw the Department’s Legal
Division, which addressed the legal aspects of such issues as tobacco control,
trans fat restrictions, calorie menu labeling, the provision of clinical services
in conformity with State hospital and professional practice requirements,
isolation, quarantine and detention of individuals, AIDS and STD
4
confidentiality, epidemiological investigations, human subjects research,
nuisance abatement, regulation of food establishments and other permitted
activities, vital statistics and school health practice. The Legal Division also
drafted all Board of Health Resolutions amending the NYC Health Code, and
otherwise provided legal services to the Board. Upon his retirement at the end
of 2006 Mr. Lopez was vested with the honorific titles of General Counsel
Emeritus to the NYC Health Department and Counsel Emeritus to the NYC
Board of Health.
He has also authored articles in the field of public health and public
health law. In 2007 Mr. Lopez, in collaboration with the federal Centers for
Disease Control and Prevention (CDC), served as Executive Editor of “The
National Action Agenda for Public Health Legal Preparedness.” He is the
co-editor and co-author of a text book entitled “Law in Public Health Practice.”
Mr. Lopez’ other professional activities in the field include serving as a
member of the Committee on Public Health Strategies to Improve Health of the
National Academies’ Institute of Medicine (2009 to 2012), a member of the
National Advisory Committee to the Public Health Law Research Program of
the Robert Wood Johnson Foundation (2009 to Present), and a member of a
workgroup assisting the CDC’s National Center for Health Statistics to revise
5
the Model State Vital Statistics Act and Regulations (2009 to 2011). Until
2012 he provided professional consulting services in the field of public health
law, including services to CDC.
Andrew Goldberg was formerly a staff attorney with Bronx Legal
Services and MFY Legal Services between 1986 and 1998, where he
represented low-income clients in a range of issues, many involving public
health. Between 1998 and 2002, he was responsible for supervising an
environmental litigation project at the New York Public Interest Research
Group, Inc. (NYPIRG). Between 2002 and 2011, he returned to MFY Legal
Services where he was responsible for supervision of various Projects,
including a Mental Health Law Project.
Between 1986 and 2003, he was a lead attorney in New York City
Coalition to End Lead Poisoning v. Koch, NY County Index No. 42780/1985,
which sought to compel the Department of Health and the Department of
Housing Preservation and Development to properly enforce laws intended to
protect children from lead poisoning. In 1992, he was appointed to the New
York City Mayor’s Committee to End Lead Paint Poisoning to represent the
interests of tenants and families with lead poisoned children.
6
PRELIMINARY STATEMENT
To address public health and disease control, it has long been recognized
that the Board of Health “has plenary powers of legislation [to adopt a sanitary
code].” Report of the 1936 Charter Revision Commission at 38.1 This plenary
authority was originally granted by the State Legislature in 1866, when the
Legislature created the Metropolitan Board of Health. Since then, this
authority has been incorporated into every New York City Charter using
language that is almost identical to the current City Charter § 558(b).
Utilizing this legislative power, the Board of Health oversees the content
of the Health Code, which is a comprehensive body of law that includes
provisions for the control of disease, for maternal, infant child and school
health services, for the promulgation and enforcement of environmental
sanitation requirements, and for the collection and registration of information
and activities related to vital statistics. This power is necessarily broad
because the control of disease and the protection of public health requires a
high degree of expertise and discretion. This is especially true because the
1 A copy of the proposed Charter for the City of New York, which was adopted at
the general election held November 3, 1936, effective January 1, 1938, and Report of the
New York Ci ty Charter Revis ion Commission is avai lab le a t
http://hdl.handle.net/2027/mdp.39015082604532.
7
field of disease control — both communicable and chronic — not only
addresses dangerous substances that affect health, but also addresses unhealthy
behavior that can be equally as detrimental, such as the excessive consumption
of certain foods like high sugar content drinks, which is the subject of the
Board’s Portion Cap Rule.
Leaving aside the particular Health Code amendment that is the subject
of this litigation, the amici believe the Appellate Division was unaware of the
implications of its broad holding, which is:
[the New York City Board of Health] has no
inherent legislative power. It derives its power to
establish rules and regulations directly and solely
from the legislature, in this case, the City Council.
(R. 1779) The Appellate Division went on to state that:
In our view, the City Charter’s Enabling Act,
granting the Board of Health explicit power to
establish, amend, and repeal the Health Code, was
clearly intended by the legislature to provide the
agency with the discretion to engage in interstitial
rule making designed to protect the public from
inherently harmful and inimical matters affecting the
health of the City ....
(R. 1790-91) If not modified or reversed by this Court, an affirmance of the
lower court’s holding will mean that the Board of Health’s historic
independence from the political process will be substantially diminished
8
because the Board will no longer have plenary authority to address all public
health concerns as they arise, but only those that follow a specific directive
emanating from the City Council or, as the lower court also held, are a “health
hazard per se.” Furthermore, even if dealing with a “health hazard per se,” the
decision below implies that the Board of Health can only address such a danger
on an all-or-nothing basis. If the decision of the lower court is allowed to
stand, there may be serious repercussions because the New York City Board
of Health will, for the first time since its establishment in 1866, be constrained
by the need to obtain legislative direction before it could otherwise act to
confront many public health threats.
ARGUMENT
Point I.
THERE ARE SOUND PUBLIC HEALTH
REASONS WHY THE CITY CHARTER VESTS
LEGISLATIVE POWER IN THE BOARD OF
HEALTH AND THE CHARTER ITSELF DOES
NOT MAKE THE BOARD SUBSERVIENT TO
THE CITY COUNCIL.
The New York City Board of Health is a body of experts in the field of
public health, who are appointed by the Mayor, with the advice and consent of
the New York City Council, and they serve fixed staggered terms of six years.
9
City Charter § 553. Members of the Board may not be removed except for
cause and only after an opportunity for a hearing. City Charter § 554. The
Board is not an ordinary administrative agency in the executive branch of New
York City government. Its amendments to the New York City Health Code are
final and do not require further executive or legislative approval.2 The Board
is a body whose structure is designed to provide unique expertise in the field
of public health and whose independence under the City Charter is designed
to insulate it from political influences.
Under the New York City Charter, the Board of Health has legislative
authority independent of the City Council to amend the New York City Health
Code. See City Charter § 558(b). As this Court has stated in decisions
ranging from 1915 to 1975, the Board of Health may “legislate,” Grossman v
Baumgartner, 17 NY2d 345, 351 (1966), has “plenary” legislative powers,
People ex rel. Knoblauch v. Warden of Jail of Fourth Dist. Magistrate’s Court,
216 N.Y. 154, 160-162 (1915), and has “legislative authority in the field of
health regulation,” Schulman v. New York City Health & Hospitals Corp., 38
2 The Board of Health, for example, is not subject to executive control under the
New York City Charter the way the State Public Health Council is subject to executive
control under Public Health Law § 225(4), because amendments made by the State Council
to the State Sanitary Code require the separate approval of the State Commissioner of Health.
10
N.Y.2d 234, 237 (1975). Although this power to legislate originally was
granted by the State Legislature, this Court also has made specific reference to
the fact that this legislative authority is set forth in the New York City Charter,
whether in Section 558(b) of the current City Charter or in an earlier version
of the Charter, such as Section 1172 of the 1901 City Charter, Section 558 of
the 1938 City Charter, or Section 1706(2) of the City Charter between 1967
and 1977. See, e.g., People ex rel. Knoblauch v. Warden of Jail of Fourth Dist.
Magistrate’s Court, 216 N.Y. at 160-162 (“The present charter extended and
enlarged the powers of the board of health” and those “powers are very broad
— well-nigh plenary....”); People v. Blanchard, 288 N. Y. 145, 147 (1942)
(Referring to both Section 1172 of the 1901 City Charter and Section 558 of
the 1938 City Charter, the Court said, “the main business of safeguarding the
public health has always of necessity been done by local boards or officers
through sanitary by-laws or ordinances which have been accorded the force of
law.”); Grossman v Baumgartner, 17 NY2d at 351 (Citing City Charter § 558,
the Court said the Charter “empowers the Board of Health to legislate in the
field of health generally”); and Schulman v. New York City Health &
Hospitals Corp., 38 N.Y.2d at 237 (Citing City Charter § 1706, the Court said
the Board of Health is recognized as the “sole legislative authority in the field
11
of health regulation in the City of New York.”). For example, the current City
Charter § 558(b) states that the Board of Health “from time to time may add to
and alter, amend or repeal any part of the health code … not inconsistent with
the constitution, laws of this state or this charter ....” (Emphasis added) By
subjecting the Board only to the authority of state law and the City Charter, and
not necessarily to the New York City Administrative Code enacted by the City
Council, the Board’s plenary power is confirmed in the plain and unambiguous
language of City Charter § 558(b).
This legislative authority has its origin in the early 1860’s, when
epidemics of typhus, smallpox, and cholera were present in the City of New
York, and the rate of mortality from these diseases was greater than the
mortality rates in other cities in the United States and in Western Europe. At
that time, the City’s ineffective response to one public health crisis after
another was, to a large extent, caused by the dysfunctional structure of the
City’s government, where three different municipal entities had overlapping
responsibility for public health. These were the Board of Health (consisting
of the Mayor, Alderman and Councilmen), the Commission of Health (which
included the Mayor, the Presidents of the Boards of Aldermen and
Councilmen, the Resident Physician and the Health Officer of the Port), and
12
the City Inspector’s Department. With public health decision making so
diffused and subject to political whim, no single entity was responsible for
coordinating the City’s response to disease. See, Breiger, Gert H., Sanitary
Reform in New York City: Stephen Smith and the Passage of the Metropolitan
Health Bill, Bulletin of the History of Medicine, Vol. XL, No. 5,
September-October, 1966.
Then, in 1866, the State Legislature transferred legislative authority for
public health from these various municipal entities to a single newly created
Metropolitan Board of Health. See L.1866, Ch. 74, Sec. 12 and L.1866, Ch.
686, Sec. 3. In the early years that followed, it was this new Board that
effectively introduced better organization and professionalism. With this new
organization, the Board was able to handle the next cholera epidemic with
unprecedented success. The Board implemented a model of
physician-investigators, and started a campaign to address sanitation. A
laboratory was established to examine water, milk and foods. The Board of
Health began to investigate a variety of health hazards to reduce the spread of
disease, increase public safety and improve the quality of life, such as
ventilation, heating and overcrowding in public schools, the living conditions
of infants in foundling asylums, venereal disease, the condition of meat, the
13
explosions from products such as kerosene lamps, and safety measures along
the waterfront.3 Baumgartner, Leona, One Hundred Years of Health: New
York City, 1866 - 1966, Bull. N.Y. Acad. Med, Vol. 45, No. 6 (June 1969) at
558-59.
During the next twenty years, the Board expanded its influence into new
areas of public health. The Board oversaw the development of the first
sanitary code, it sought greater accuracy in the reporting of births and in
determining the causes of death, it began to regulate the practice of medicine
and surgery, it established a laboratory to make smallpox vaccine, and it
engaged in public education to help control the spread of contagious disease
and to teach the proper care of infants. The Board also started to address the
deplorable conditions in tenement housing, street sanitation, and regulation of
noxious trades. In the 1890s, the Board became involved in developing
widespread applications of new discoveries in bacteriology and immunology.
Many of these public health advances were codified in the New York City
3 The authority vested in the Metropolitan Board of Health was not limited to
communicable disease. For example, Section 12 of the Bill specified that the Board “shall
also possess ... all the power and authority for the protection of life or health, or the care or
preservation of health, or persons diseased or threatened therewith, conferred by any law or
ordinance relating to any part of said District...” (Emphasis added) This language is
strikingly similar to the broad authority vested in the current Board by Charter § 558(b) to
enact in the Health Code “additional provisions for security of life and health in the city ....”
14
Sanitary Code, now the Health Code, established by the Board of Health. Id.
at 559-63.
Then in 1936, a New York City Charter Revision Commission not only
reaffirmed the Board’s legislative authority over matters affecting health, but
it also expressed the need to provide the Board more political independence
than the Board had received during its first 70 years of existence. To do so, the
Commission altered the length of members’ terms, it staggered their terms, and
it made it more difficult to remove members. In the Report of the 1938 Charter
Revision Commission, the Commission explained:
The Board of Health exercises extraordinary police
powers affecting the health of the city. By its power
to adopt a sanitary code the Board has plenary
powers of legislation. … .The important legislative
and semi-judicial powers of the Board of Health are
recognized by giving to it a greater degree of
independence through the lengthening of the terms
of its members to eight years and making them
overlap and allowing removal only on charges. Two
of the members must be doctors of medicine….
Report of the New York City Charter Revision Commission at page 38
(emphasis added). And in 2001, the City Charter Revision Commission
emphasized the continuing legislative nature of the Board of Health's authority,
describing the Board as follows:
15
The main function of the Board of Health is to
promulgate the New York City Health Code, a
significant body of the law that can encompass any
matter within the jurisdiction of the Department of
Health, and which has “the force and effect of law”
[New York City Charter, Section 558].
Final Report from the 2001 Charter Revision Commission at 69.4
Today, the New York City Board of Health consists of the
Commissioner of the Department of Health and Mental Hygiene and ten
additional members, five of whom must be doctors of medicine. If not
physicians, the other five members must hold at least a master’s degree in
“environmental, biological, veterinary, physical or behavioral health or
science, or rehabilitative science or in a related field.” City Charter § 553(a).
The Board, pursuant to City Charter City Charter § 558(b), has the authority
to “add to and alter, amend or repeal” any part of the Health Code whenever
it is necessary to prevent disease and to protect the public health.
The modern-day Health Code is a two volume compendium of
comprehensive public health ordinances consisting of five titles:
Title I: General Provisions, including the
declaration of public health emergencies and
4 Indeed, in recent years there have been numerous other Charter Revision
Commissions, for example in 1989, 1998, 2002, 2005 and 2010, and none of them have
altered the authority of the Board of Health under § 558.
16
permitting and licensing requirements for many
activities;
Title II: Control of Disease, including disease
reporting requirements, the removal and detention of
cases, contacts and carriers who may be a danger to
public health, such as cases of drug resistant
tuberculosis and SARS, and laboratory
requirements;
Title III: Maternal, Infant, Child and School
Health Services, including requirements for schools,
the regulation of child care services such as day
care, the wholesomeness and age-appropriate
portion size of food and beverages served and the
prohibition of beverages with added sweeteners, and
the regulation of summer day camps;
Title IV: Environmental Sanitation, including
the wholesomeness of food and the sanitary aspects
of food preparation, the regulation of food service
establishments including restriction of trans fats and
calorie posting, mobile food vending, requirements
for buildings, drinking water, sewage disposal, pest
prevention and management, animals, bathing
establishments, beaches, and radiation control. It is
important to note that with regard to the supervision
and regulation of the food supply of the City of New
York, § 556(c)(9) requires the Department to
“ensure that such businesses and activities are
conducted in a manner consistent with the public
interest ...” so that the mandate is not limited to just
strict sanitary issues; and
Title V: Vital Statistics, including the
registration of births, terminations of pregnancy,
deaths, and the handling of human remains.
17
In sum, in light of both the breadth and depth of the Health Code and the
critical need to make sure that the Code will always reflect the most current
knowledge in public health protection, the New York City Charter has for
almost a century and a half vested legislative power to amend the Health Code
in the Board of Health. Yet, as a result of the Appellate Division’s holding, the
Board of Health will no longer have plenary authority. Instead, as explained
in Point II below, according to the Appellate Division, the Board will have
authority to address only those matters that follow a specific directive
emanating from the City Council or are a “health hazard per se,” and then only
if the hazard is addressed on an all-or-nothing basis. But if the Appellate
Division’s holding were to become the final rule, it is hard to imagine the New
York City Council — now having to provide guidance in matters that were
previously the province of the Board of Health — will be capable of providing
legislative directives in all of these areas of public health concern. This is
especially troubling given the rapid pace in which disease can develop.
Furthermore, the Appellate Division’s holding that the Board of Health
“has no inherent legislative power [but] derives its power to establish rules and
regulations directly and solely from the legislature, in this case, the City
Council,” calls into question many of the prior amendments to the Health Code
18
because much, if not all of the existing Health Code, has been enacted pursuant
to the provisions of Charter §§ 558 and 556 without additional specific
legislative guidance from the City Council. These actions by the Board of
Health include, but are by no means limited to:
• Health Code § 173.13 (prohibiting the use of
interior lead paint) (1960);
• Health Code § 141.08 (the fluoridation of
drinking water) (1964);
• Health Code § 131.15 (a requirement for the
installation of window guards in residential
dwellings to prevent injuries from falls)
(1976);
• Health Code § 11.07 (the establishment of an
immunization registry) (1994);
• Health Code § 13.07 (the establishment of a
diabetes registry) (2005);
• Health Code § 81.08 (restricting trans fats in
food service establishments) (2006); and
• Health Code § 81.50 (requiring the posting of
calories in certain food service
establishments) (2008).
The amici are concerned that the Appellate Division’s decision, if not
modified, will open the door to other litigants who are dissatisfied with
existing provisions of the Health Code and will now be able to challenge them
19
on the ground that the Board lacked the authority to adopt them. It should be
further noted that of all of the municipal codes applicable in NYC, such as the
Building, Fire and Housing Maintenance codes, only the Health Code is not
located within the Administrative Code and not enacted by the City Council.
This is in accordance with the City’s legislative scheme intentionally
established by the state legislature and sustained by the appellate courts of this
state for well over a century. If this allocation of legislative authority is to be
altered, it should be accomplished through a recognized charter revision
process and not by court decision because the implications arising from
changing the authority of the Board of Health cannot be fully recognized by a
court, especially in the context of a lawsuit challenging a single Health Code
amendment issued by the Board.
This said, the Board of Health of course must still adopt provisions that
are within the substantive boundaries of Charter §§ 556 and 558. Charter §
558(c) states that the Board of Health “may embrace in the health code all
matters and subjects to which the power and authority of the department [of
health] extends” and Charter § 556 states that the department of health “shall
have jurisdiction to regulate all matters affecting health in the city of New
York....” Section 556 then goes on to delineate a long list of specific areas that
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are within the Department’s jurisdiction, including the two that are at issue
here, 556(c)(2) and (9), providing more than enough legislative guidance to
support the Portion Cap Rule. These substantive boundaries are both specific
and broad.5 And any question as to whether this broad delegation is
constitutional was settled long ago. Of course this does not mean that the
Board’s action is not subject to court review, it only means that such review
should be pursuant to the arbitrary and capricious standard. See, Appellants’
Brief at 18-28, Appellants’ Reply Brief at 41-49.
5 Clearly under the City Charter’s distribution of power there can be no doubt that
the Board of Health and the City Council both have a role to play in improving and
protecting public health. For example, the City Council surely is empowered to determine
the location of swimming pools in the City of New York, but the authority to determine the
proper chemical composition or the design and construction of swimming pools should
remain the sole jurisdiction of the Board of Health. (Health Code Article 165) The same is
true for the location and operation of a restaurant, but determining the sanitary preparation
of food in food service establishments is primarily the responsibility of the Board of Health,
so that food-borne illness is avoided. (Health Code § 81.07) There are also many other
aspects of public health authority that fall within the overlapping responsibility and
concurrent authority of both the City Council and the Board of Health, such as the regulation
of trans fats where both the Council and the Board have enacted similar provisions. But it
cannot be said that the Board of Health did not have the authority to act as it did in this
instance.
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Point II
THE APPELLATE DIVISION’S HOLDING
THAT THE BOARD MUST LOOK TO THE
CITY COUNCIL FOR A SPECIFIC
DIRECTIVE EXCEPT IN THE SITUATION OF
A “HAZARD PER SE” IS WRONG AS A
MATTER OF LAW AND WILL SEVERELY
UNDERCUT THE BOARD’S ABILITY TO ACT
PROMPTLY AND EFFECTIVELY TO PUBLIC
HEALTH CHALLENGES.
The Appellate Division has additionally erred by constraining the Board
of Health’s authority to specific directives emanating from the City Council,
unless the Board’s action concerns a matter that can be “classified as a health
hazard per se” and, then, to situations where the Board intends to regulate the
matter on an all-or-nothing basis rather than on an incremental basis. To date,
no other appellate court ever has limited the Board’s authority only to matters
that are “inherently harmful” or to matters where the Board has taken an all or
nothing approach. There is no legal authority to support this restriction and the
restriction will undermine the effectiveness and independence of the Board.
To begin, the Appellate Division makes an illogical leap in reasoning
when it concludes that the City Charter’s broad grant of legislative authority,
as expressed in Charter § 558, was intended to allow the Board to engage in
“interstitial rule making” only with regard to “inherently harmful and inimical
22
matters.” The lower court said:
In our view, the City Charter’s Enabling Act ... was
clearly intended by the legislature to provide the
agency with the discretion to engage in interstitial
rule making designed to protect the public from
inherently harmful and inimical matters affecting the
health of the City.... (Emphasis added.)
(R. 1790-91) To support this conclusion, the lower court cites without
explanation to Grossman v. Baumgartner. This reliance on Grossman v.
Baumgartner is misplaced. While the Grossman decision does note that there
was testimony to the effect that tattooing was a health hazard, there was no
holding by the Court of Appeals that the Board of Health’s authority extended
to only inherently harmful matters. Indeed, such an interpretation by this
Court in Grossman would have been inconsistent with Paduano v. City of New
York, 45 Misc.2d 718 (Sup. Ct. N.Y. Co.), aff’d on op. below, 24 A.D.2d 437
(1st Dep’t 1965), aff’d, 17 N.Y.2d 875 (1966), cert. denied, 385 U.S. 1026
(1967). In Paduano, this Court upheld the Board’s authority to require
fluoridation of New York City’s drinking water supply. Notwithstanding that
it is clear that un-fluoridated water is not “inherently harmful,” this Court
found the Board’s fluoridation program fit squarely within the language of
Charter § 558(b) authorizing the Board of Health to include in the Health Code
23
“additional provisions for security of life and health in the city ....” Therefore,
on appeal, the Appellate Division’s reasoning that the Board’s authority only
encompasses “inherently harmful and inimical matters” cannot be affirmed by
this Court without also distinguishing, limiting or overruling Paduano v. City
of New York.
Next, the Appellate Division equates a “health hazard” with “inherently
harmful and inimical matters affecting the health of the City,” and then the
lower court characterizes an inherently harmful matter as a “health hazard per
se.” The Appellate Division said:
The Board of Health, however, does not claim
that soda consumption can be classified as such a
health hazard. Rather, the hazard arises from the
consumption of sugary soda in excess quantity. The
risks of obesity and developing diabetes and other
illnesses are greater in those who drink soda to
excess than in those who drink it in moderation or
not at all. Thus, since soda consumption cannot be
classified as a health hazard per se, the Board of
Health’s action in curtailing its consumption was not
the kind of interstitial rule making intended by the
legislature.
(R. 1792, emphasis added)
Regarding a “hazard per se,” the lower court seems to think that the only
way to deal with this kind of hazard is to take an all-or-nothing approach, and
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that the Board lacks authority to independently promulgate any rule that is not
“an all-encompassing regulation.” The Court says:
As indicated, the regulatory scheme is not an
all-encompassing regulation. It does not apply to all
[Food Service Establishments]. Nor does it apply to
all sugary beverages....
(R. 1785) The lower court also says:
[T]he selective restrictions enacted by the
Board of Health reveal that the health of the
residents of New York City was not its sole concern.
If it were, the Soda Ban would apply to all public
and private enterprises in New York City. By
enacting a compromise measure — one that
tempered its strong health concerns with its unstated
but real worries about commercial well-being, as
well as political considerations — the Board
necessarily took into account its own non-health
policy considerations. Judged by its deeds rather
than by its explanations, the Board of Health’s
jurisdictional rationale evaporates.
(R. 1788)
In sum, the Appellate Division has conflated the harm being addressed
by the Board of Health in promulgating the Portion Cap Rule, which is
excessive soda consumption, with the more general phenomenon of ordinary
soda consumption. The Court’s reasoning seems to be that because the Board
of Health did not limit all soda consumption from all establishments — which
25
would be evidence of the Board treating all soda consumption as a “health
hazard per se” — the Board therefore lacks the authority to determine that
excessive soda consumption is harmful. In other words, the Appellate Division
holds that the Board of Health lacks the authority to address a public health
matter in an incremental manner. Choosing to address a public health threat
in an incremental manner can be due to many important and relevant factors
that are not based on commercial or economic considerations, often requiring
the very types of expertise with which the Board is statutorily vested. For
example, the degree to which a particular rule can be enforced in the real world
may be affected by the degree to which a danger may be measured or
scientifically detectable;6 the degree to which a rule can be reasonably
complied with and not be subject to a defense of impossibility;7 and, as in this
6 For example, Health Code § 173.14(b) defines “lead-based paint” to mean “paint
or other similar surface coating material containing 1.0 milligram of lead per square
centimeter ... or greater.” This standard, however, is not a “health-based” standard nor is it
“all or nothing” because paint with a lower content of lead is still toxic and a danger to
children. Instead, this standard reflects the lowest level at which machines used for testing
are reliable for determining the lead content of paint. While establishing this level is contrary
to the “all or nothing” approach adopted by the Appellate Division, it is in fact a necessary
judgment that the Board of Health employs in order to regulate or eliminate hazards. If the
reasoning of the Appellate Division decision is allowed to stand, then any one of the myriad
substances that are regulated in the Health Code may be subject to challenge too.
7 A fundamental principle of sound government is that all laws and regulations should
be operationally feasible and capable of compliance. Thus, the calorie labeling requirement
found in Health Code § 81.50 was made applicable to only food service establishments that
(continued...)
26
case, the jurisdictional authority to regulate only part of the various types of
facilities that present a danger cannot be ignored.
This rejection of incrementalism in the promulgation of health
regulations by the Board of Health flies in the face of real world experience
where very few dangers are treated on an all-or-nothing basis. The Board of
Health routinely determines and codifies in the Health Code the levels at which
a particular matter becomes harmful and establishes the required remedial
action. For example, the restriction on trans fats in food service establishments
does not apply to all foods containing any level of trans fat, but, rather only to
foods that contain at least 0.5 grams per serving (Health Code § 81.08(b)).
Similarly, the prohibition on the sale and use of lead-based paint for consumer
use does not apply to all paint containing lead, but only to paint containing
more than 0.009 percent of metallic lead (Health Code § 173.13(a)(1)).
To take the position, as the Appellate Division has here, that the Board
can only address inherently harmful matters, or health hazards per se, is a
proposition made up of whole cloth. It is worthy to note that neither the
7(...continued)
are one of a group of 15 or more such establishments offering for sale substantially the same
menu items that are standardized for portion size and content. It was not made applicable
to “Mom and Pop” restaurants because it was determined that these establishments could not
reasonably comply with the requirement.
27
immunization registry nor the calorie labeling requirements, nor many other
Health Code provisions, are based on findings of per se health hazards. To
hold, as the Appellate Division holds, that the City Council must adopt a local
law to address any matter — such as excessive soda consumption — in the
absence of a “hazard per se” that is addressed on a all-or-nothing basis, is
simply contrary to the City’s legislative scheme, which grants the Board of
Health the authority to promulgate the Health Code and it is dangerous to the
public’s health.
Furthermore, to hold that the Board can only address per se hazards, and
only in an all-or-nothing manner, would cripple the Board’s future ability to
protect the public. To make it wait for increasingly dysfunctional legislatures
to provide specific legislative guidance would make the Board no more than
a bald administrative rule making body. To prohibit an incremental approach
in the present case would mean that all past actions that employed an
incremental approach, as well as all future actions, would be subject to attack
because the Appellate Division’s view on incremental solutions in the present
case would be indistinguishable from any other case.
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Point III
FOR THE REASONS STATED BY JUDGE
BELLACOSA IN BOREALI V. AXELROD,
THE BOREALI PRECEDENT SHOULD NOT
BE APPLIED TO THE NEW YORK CITY
BOARD OF HEALTH
The amici agree with the analysis of the Appellants, that the “separation
of powers doctrine” and the decision in Boreali v. Axelrod, 71 N.Y.2d 1
(1987), do not apply to the Board of Health (Appellants’ Brief at 18-28,
Appellants’ Reply Brief at 8-24) and will not repeat these arguments.
Furthermore, the amici also agree with the reasoning of the Appellants that the
Portion Cap Rule should survive even if the Boreali analysis is applied here.
Instead, the amici urge this Court to consider the opinion of Judge Bellacosa
in Boreali v. Axelrod.
In his dissent, Judge Bellacosa warned that the “legal denigration of the
[Public Health Council] and its work is a grave mistake.” Now, many years
later, he appears to have been correct because if one looks at the development
of the State Sanitary Code since Boreali one gets the sense that it has
atrophied, with no significant new initiatives in the field of public health.
Applying Judge Bellacosa’s reasoning to the present case, he would find
it relevant that the statutory authority of the Board of Health “was delegated
29
by the Legislature,” id. at 16, this authority “has not been withdrawn” either by
the Legislature or by amendment to the City Charter, id., the Board of Health
has regularly exercised its authority with this Court’s “express approbation,”8
id. at 17, and the Board’s power includes adoption and amendment of a
comprehensive code “dealing with the root source of [its] authority.” Id. In
addition, Judge Bellacosa would find it important that the New York City
Charter “wisely refrained from enacting a rigid formula” for the exercise of the
Board of Health’s authority “because that calls for expert attention.” Id.
Applying these principles to this case, Judge Bellacosa would likely argue for
reversal of the lower court’s decision and would likely conclude that the
“legislative forbearance” set forth in the language of the New York City
Charter “represents both a sound administrative law principle and, at the
threshold, a constitutional one as well.” Id.
With its broad grant of authority under the City Charter the Board of
Health has historically been recognized as a leader in the field of public health,
8 See, e.g., Board of Health v. Heister, 37 N.Y. 661 (1868); People ex rel. Lieberman
v. Vandecarr, 175 N.Y. 440 (1903), aff’d on other grounds, 199 U.S. 552 (1905); People ex
rel. Knoblauch v. Warden of Jail of Fourth Dist. Magistrate’s Court, 216 N.Y. at 160-162;
People v. Blanchard, 288 N. Y. at 147; Quaker Oats Co. v. City of New York and Hill
Packing Co. v. City of New York, 295 N.Y. 527, 539 (1946), aff’d mem., 33 U.S. 787
(1947); In re Bakers Mut. Ins. Co., 301 N.Y. 21 (1950); Grossman v Baumgartner, 17 NY2d
at 351; Paduano v. City of New York, 45 Misc.2d 718; Schulman v. New York City Health
& Hospitals Corp., 38 N.Y.2d at 237.
30
establishing many state and national precedents. For example, it was able to
introduce the sanitary requirements, organization and professionalism that
enabled New York City to handle cholera epidemics with unprecedented
success in the late-1800s, to be the first to prohibit the use of interior lead paint
in 1960, to establish an immunization registry in 1994 serving as the model for
a later state law (PHL § 2168), to institute a diabetes registry in 2005, and to
require the posting of calories in certain food service establishments in 2008
also serving as a model that was later incorporated into § 4205 of the federal
Patient Protection and Affordable Care Act of 2010; all without specific
guidance from the City Council. And finally, while the lower court
significantly undermines the Board’s independence and places its authority
more directly under the control of the City Council, Judge Bellacosa would
likely argue against this curtailment of the Board’s independence because it
disrupts the balance of power that exists legislatively under the New York City
Charter and it imposes new limits on the plenary authority to the Board of
Health over matters that pertain to public health. In this case, he would likely
repeat:
It was prescient and sound governance ... to grant
flexibility to the objective expert entity so it could in
these exceptional instances prescribe demonstrably
31
needed administrative regulation for the public
health, free from the sometimes paralyzing polemics
associated with the legislative process.
Id. at 17-18.
In sum, the amici respectfully believe that for the reasons stated by
Judge Bellacosa, the decision of the court below should be reversed. If, on the
other hand, the decision of the lower court is allowed to stand, there may be
serious repercussions because the New York City Board of Health will, for the
first time since its establishment in 1866, be constrained by the need to obtain
legislative direction before it could otherwise act to confront many public
health threats.
CONCLUSION
For the reasons stated, the decision appealed from should be reversed.
Dated: April 15, 2014
Respectfully submitted,
_____________________________
Andrew Goldberg, Esq.
Attorney for Amici Curiae
30 Fifth Avenue, 10B
New York, New York 10011
Tel.: 917-922-9697
Email: andrew.goldberg@verizon.net
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