APL-2013-00291
New York County Clerk’s Index No. 653584/12
Court of Appeals
STATE OF NEW YORK
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,
Plaintiffs-Petitioners-Respondents,
For a Judgment Pursuant to Article 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 Department of Health
and Mental Hygiene,
Defendants-Respondents-Appellants.
>> >>
WATKINS BRADLEY LLP
Attorneys for Amici Curiae
228 Park Avenue South # 14905
New York, New York 10003
212-937-4281
Of Counsel:
Adam Francois Watkins
Stephanie F. Bradley
Date Completed: May 12, 2014
BRIEF OF AMICI CURIAE NEW YORK CITY COUNCIL
MEMBERS MARIA DEL CARMEN ARROYO,
INEZ BARRON, FERNANDO CABRERA, ANDREW COHEN,
COSTA CONSTANTINIDES, ROBERT E. CORNEGY,
LAURIE A. CUMBO, CHAIM DEUTSCH, RAFAEL ESPINAL,
JULISSA FERRERAS, DANIEL R. GARODNICK,
VINCENT J. GENTILE, VANESSA GIBSON, VINCENT IGNIZIO,
COREY JOHNSON, PETER KOO, KAREN KOSLOWITZ,
RORY LANCMAN, MARK LEVINE, ALAN MAISEL,
MELISSA MARK-VIVERITO, STEVE MATTEO, ROSIE MENDEZ,
ANNABEL PALMA, ANTONIO REYNOSO, DONOVAN RICHARDS,
YDANIS RODRIGUEZ, DEBORAH ROSE, RITCHIE TORRES,
ERIC ULRICH, PAUL VALLONE, AND MARK WEPRIN,
AND NEW YORK CITY PUBLIC ADVOCATE LETITIA JAMES
i
TABLE OF CONTENTS
PAGE NUMBER
TABLE OF AUTHORITIES .................................................................................... ii
PRELIMINARY STATEMENT ............................................................................... 1
INTEREST OF AMICI CURIAE ............................................................................... 3
ARGUMENT ............................................................................................................. 5
I. The Board Does Not Possess Any Extraordinary, Legislative
Powers To Restrict Access to Safe and Legal Foods ............................ 5
A. The Board’s Claim of Extraordinary Legislative Powers
Would Usurp the City Council’s Role as New York City’s
Legislative Body ............................................................................ 6
B. The Board Has No Legislative Powers To Enact the Ban ........... 11
II. The Ban Establishes Legislative Public Policy That Only the
State or City Legislature May Enact ................................................... 16
A. The Ban Is Largely Based on Social, Economic, and Other
Non-Health-Related Considerations............................................ 17
B. The Ban Creates a Novel Regulatory Regime Without
Legislative Guidance or Approval .............................................. 23
C. The Issue of Sugar-Sweetened Beverage Consumption Is
an Area of Ongoing Legislative Debate ...................................... 30
D. The Board’s Expertise Was Not Necessary To Make the
Fundamental Policy Decisions To Target a Safe and Legal
Food, and To Limit Its Availability by Capping Portion
Sizes ............................................................................................. 32
CONCLUSION ........................................................................................................ 34
ii
TABLE OF AUTHORITIES
CASES
Am. Kennel Club, Inc. v. City of New York,
Index No. 13584/89 (Sup. Ct. N.Y. Cty. Sept. 19, 1989) .................................... 14
Boreali v. Axelrod,
71 N.Y.2d 1 (1987) ...................................................................................... passim
Carr v. Schmid,
105 Misc. 2d 645 (Sup. Ct. N.Y. Cty. 1980) ....................................................... 14
Green v. Safir,
174 Misc. 2d 400 (Sup. Ct. N.Y. Cty. 1997) ....................................................... 10
Grossman v. Baumgartner,
17 N.Y.2d 345 (1966) .......................................................................................... 15
Health Ins. Ass’n v. Corcoran,
154 A.D.2d 61 (3d Dep’t 1990) ............................................................................. 7
Metzen v. United States,
19 F.3d 795 (2d Cir. 1994) ................................................................................... 19
N.Y.C. Board of Estimate v. Morris,
489 U.S. 688 (1989) ............................................................................................. 16
People v. Weil,
286 A.D. 753 (1st Dep’t 1955) ............................................................................ 15
Rodriguez v. Popular Democratic Party,
457 U.S. 1 (1982) ................................................................................................. 10
Sailors v. Board of Education,
387 U.S. 105 (1967) ............................................................................................. 10
Under 21 v. City of New York, 65 N.Y.2d 344 (1985) ............................................ 11
Village of Saratoga Springs v. Saratoga Gas, Elec. Light & Power Co.,
191 N.Y. 123 (1908) ............................................................................................ 12
iii
STATUTES AND SESSION LAWS
1967 N.Y.C. Local Law No. 127 ............................................................................. 14
1977 N.Y.C. Local Law No. 25 ............................................................................... 14
1979 N.Y.C. Local Law No. 5 ................................................................................. 14
2008 N.Y.C. Local Law No. 9 .......................................................................... 10, 29
2009 N.Y.C. Local Law No. 51 ................................................................................. 9
2011 N.Y.C. Local Law No. 11 ............................................................................... 10
2011 N.Y.C. Local law No. 74 .................................................................................. 9
Laws of N.Y. 1971, ch. 626 ..................................................................................... 14
LEGISLATIVE MATERIALS
N.Y.C. Council Res. No. 0768-2011 ....................................................................... 31
N.Y.C. Council Res. No. 1265-2012 ....................................................................... 31
Transcript, Minutes of the Committee on Health, New York City Council (Mar. 1,
2007)..................................................................................................................... 25
Transcript, Minutes of the Joint Committees on Health and Parks & Recreation,
New York City Council (Oct. 14, 2010) .............................................................. 10
REGULATIONS
R.C.N.Y. tit. 24, § 173.13 ........................................................................................ 28
R.C.N.Y. tit. 24, § 47.71 .......................................................................................... 27
OTHER AUTHORITIES
Community Health Care Association of N.Y. State, Defining New Directions: New
York City Childhood Obesity Initiative ............................................................... 29
iv
Final Report of the New York City Charter Commission, January 1989 -
November 1989 (Mar. 1990) ............................................................................... 13
GrowNYC, Healthy Food, Healthy City: Greenmarket EBT 2011 Progress Report
.............................................................................................................................. 29
Introductory Notes to New York City Health Code, Title II ................................... 28
Kelly D. Brownell, et al., Personal Responsibility And Obesity: A Constructive
Approach To A Controversial Issue, 29 HEALTH AFFAIRS No. 3 (2010) ............ 22
National Institutes of Health, Clinical Guidelines on the Identification, Evaluation,
and Treatment of Overweight and Obesity in Adults: The Evidence Report
(1998) .............................................................................................................. 7, 29
New York City Council Fiscal Year 2014 Adopted Expense Budget ..................... 29
1
PRELIMINARY STATEMENT
Defendants make the extraordinary and troubling claim that they hold
powers that the Constitution and City Charter confer only upon the elected
legislature. Defendants’ theory, if accepted, would fundamentally alter the
relationship and interactions between New York City’s executive and legislative
branches – at the expense of the elected City Council. As current Council Members
and Public Advocate, amici curiae encourage this Court to reject Defendants’
claims that the Board of Health (the “Board”) – an appointed executive body –
holds the power to establish laws and public policy for the City. Such power rests
with the City Council.
Thus, this Court should affirm the Appellate Division’s Decision and Order,
which affirmed the Decision and Order of the Supreme Court invalidating the
Board’s enactment of New York City Health Code § 81.53 (referred to by the
parties as the “Ban,” the “Rule,” or the “Portion Cap Rule”). As the lower courts
correctly concluded, the Board does not hold any extraordinary legislative powers,
and the Board’s enactment of the Ban violated the separation of powers under
Boreali v. Axelrod, 71 N.Y.2d 1 (1987).
Amici curiae Council Members and Public Advocate are particularly
concerned by the Board’s asserted intrusion into the City Council’s legislative
authority. Amici curiae are familiar with the difficult, varied, and politically
2
sensitive issues that must be resolved in order to impose new laws with far-
reaching and novel implications on social, economic, and public health concerns.
The Ban is exactly this kind of law. The decision whether to enact the Ban was
therefore a question for the City Council.
As an initial, but critically important, matter, the Board does not possess any
legislative powers of its own. The plain text of the New York City Charter (the
“Charter”) identifies the City Council as the sole legislative body for New York
City. Numerous judicial decisions confirm this view. The older case law relied
upon by Defendants does not actually recognize that the Board holds any
inherently legislative powers, and in any event, these cases do not apply to the
modern governmental structure of the City. Thus, the Board’s actions are subject to
an ordinary separation-of-powers analysis under Boreali.
Such an analysis establishes that the Ban’s enactment embodied
impermissible legislative policy-making. The Board weighed public health
interests with a variety of other social and economic concerns when it enacted the
Ban. Similar to other anti-obesity legislation that the City Council has considered
in the past, the Board necessarily balanced these interests when it decided to target
certain sugar-sweetened drinks – food that is safe and legal to consume – and when
it selected a specific regulatory mechanism over other potential policies in order to
discourage consumption of these drinks. As amici curiae can attest, the City
3
Council has itself considered various policy options with similar aims. The
Council’s rejection of such measures simply reflects a lack of agreement that it is
appropriate to target such drinks specifically in order to address obesity, in light of
the myriad significant and competing interests surrounding laws like the Ban.
If upheld, the Ban would set a dangerous precedent. Defendants contend that
the Board was delegated legislative authority over any matter affecting health. But
this logic goes too far. Almost any policy decision affecting individual behavior or
social and economic choices affects health in some way. This is particularly true
for conditions like obesity that are strongly tied to individual behavior and culture.
While some individual behavior might very well be worthy of governmental
attention, it is critical that these decisions be made by the legislature in the first
instance so that any public health concerns may be properly weighed against the
social and economic costs of such regulation.
For these reasons, this Court should affirm the lower courts’ invalidation of
the Ban.
INTEREST OF AMICI CURIAE
Amici curiae are thirty-two individual New York City Council Members –
constituting a majority of Council Members – and New York City Public Advocate
Letitia James. The New York City Council is the lawmaking body of New York
City. Each of its fifty-one elected Council Members represents a Council District
4
in one of the five New York City boroughs. See New York City Charter (“N.Y.C.
Charter”) §§ 21-22.
The New York City Public Advocate is the second-highest ranking official
in City government and is elected by the residents of all five City boroughs. The
Public Advocate serves as a direct link between the electorate and city government,
effectively acting as an ombudsman for New Yorkers by providing oversight for
city agencies, investigating citizens’ complaints about city services and making
proposals to address perceived shortcomings or failures of those services. N.Y.C.
Charter §§ 10(a), 24.
The amici curiae Council Members and Public Advocate have a substantial
interest in 1) preserving the separation of powers between the Council and
executive agencies; and 2) protecting the interests of businesses and residents in
their districts. The Ban implicates both of these concerns. In particular, the amici
curiae are deeply troubled by the vast assertion of combined legislative and
executive authority that Defendants have claimed in their arguments before this
Court. In this regard, these amici curiae can explain how this broad claim of
authority improperly infringes the City Council’s role as the legislative body of
New York City, and that the Board’s powers are no greater than other executive
agencies. The amici curiae can also explain the City Council’s own deliberations
concerning measures similar to the Ban, and how the Ban embodies intensely
5
political decisions that are both fundamentally legislative and far beyond the scope
of any grant of authority to Defendants.1
ARGUMENT
I. The Board Does Not Possess Any Extraordinary, Legislative Powers To
Restrict Access to Safe and Legal Foods
To justify their claim of authority to enact the Ban, Defendants argue that
the Board wields “extraordinary authority” that is “legislative” in nature and insist
that – even if this Court concludes the Board is not immune from separation-of-
powers requirements – this Court must defer to its action because the “Legislature
cannot always anticipate developing problems.” See Appellants’ Br. at 21, 24, 48.
Defendants’ reliance on such expansive views of their authority reflects the
extraordinary nature of the Ban – it imposes a legislative public policy with no
approval from a legislative body. Under well-established principles of New York
law, which apply to the Board no differently than any other agency, the Board’s
well-defined, but limited, public health powers simply do not permit such
unilateral action.
1 No party or counsel for a party to this action authored this Brief in whole or in part, and no
party or counsel for a party made a monetary contribution intended to fund the preparation or
submission of this Brief. No person other than amici curiae or their counsel made a monetary
contribution to the preparation or submission of this Brief.
6
A. The Board’s Claim of Extraordinary Legislative Powers Would Usurp
the City Council’s Role as New York City’s Legislative Body
In order to circumvent these limits on the Board’s authority, Defendants now
urge this Court to recognize expanded legislative powers on the part of the Board.
But under Defendants’ view, the Board’s authority would be startlingly broad – it
would permit the Board to impose legislative enactments on any matter affecting
health in any way. Though Defendants attempt to recast their argument, see
Appellants’ Reply Br. at 4-6, a Board with such powers could essentially supplant
the Council’s role as the City’s legislative body on a wide array of issues. The
prospect of such a combined legislative-executive body is deeply alarming to the
amici curiae Council Members and Public Advocate – a concern that both lower
courts correctly shared. This Court should similarly recognize that the Board does
not enjoy such broad legislative powers, and that its actions are subject to an
ordinary separation-of-powers analysis under Boreali.
Defendants claim that the Board holds legislative authority – perhaps sole
legislative authority – to impose any law “affecting the health in the city of New
York.” Appellants’ Br. at 21 (quoting N.Y.C. Charter §556). They also rely on
specific Charter provisions directing the Department of Health to “supervise the
reporting and control of communicable and chronic diseases,” and to “supervise
and regulate the food and drug supply of the city.” N.Y.C. Charter §556(c)(2) &
(9); Appellants’ Br. at 45. Defendants argue that based on these provisions, and on
7
language from decades-old case law, the Board may properly enact legislative
policies like the Ban – notwithstanding the requirements set forth by the Court of
Appeals in Boreali.
This is not so.
Unlike the enactments examined in Defendants’ cases, the Ban represents a
new and novel attempt by the Board to leverage its regulatory authority over
“matters affecting health,” as directed by the City Charter and City Council into
authority over any behavior that might be associated with chronic disease, or even
with risk factors for conditions like obesity and obesity-related ailments. But the
range of such behaviors is vast, for “hardly any aspect” of behavior “does not
interrelate with public health policy” in some way. See Health Ins. Ass’n v.
Corcoran, 154 A.D.2d 61, 72 (3d Dep’t 1990). It is well-recognized, after all, that
a range of behavioral, social, and cultural factors are all tied to conditions like
obesity. See National Institutes of Health, Clinical Guidelines on the Identification,
Evaluation, and Treatment of Overweight and Obesity in Adults: The Evidence
Report (“The Evidence Report”), at xi (1998).2 So while Defendants justify the
Ban based on their belief that drinking sugary beverages contributes to dangerous
chronic diseases, so too does eating fatty foods, exercising too infrequently,
watching too much television, or smoking.
2 Available at http://www.nhlbi.nih.gov/guidelines/obesity/ob_gdlns.pdf.
8
Importantly, Defendants do not articulate any principle that would limit their
ability to regulate such behaviors directly and unilaterally, and with no input from
the City Council. Thus, Defendants’ expansive interpretation of the Board’s
powers would not prohibit policies even more intrusive than the Ban. Under their
view, the Board could enact laws mandating servings of vegetables with restaurant
meals or requiring exercise prior to food purchases. After all, these requirements
affect health in similar ways as the sugar-sweetened beverage consumption that the
Ban targets. But even if such activities are worthy of encouragement, they cannot
be enforced as law without any involvement by elected legislative representatives.
Moreover, it remains entirely unclear how the drastic shift in legislative
authority that Defendants suggest would work in practice. Defendants contend that
the Board is not subservient to the Council – indeed, they suggest that the Board
may possess “sole legislative authority” over health. See Appellants’ Br. at 25. As
such, they argue that the Board’s legislative power is coextensive with that of the
Council. See id. But Defendants do not explain how those coextensive powers
would interact or coexist. They thus ask the Court to ignore the practical
implications, including the question of whose enactments would control over
whose. But these are fundamentally important questions, not small details to be
ironed out later.
9
Defendants’ interpretation of the Charter is also troubling because under
their view, a wide variety of the City Council’s own past enactments would now
fall under the Board’s claim of legislative authority. For example, in 2009 and
2011, the City Council passed new laws requiring bicycle parking for parking
garages over a certain size. See 2011 N.Y.C. Local Law No. 74; 2009 N.Y.C.
Local Law No. 51. Although parking regulations might seem far afield of the
Board’s authority, efforts to encourage bicycling such as bicycle parking mandates
certainly affect the health of city residents. Indeed, the Department of Health
specifically tracks bicycling by New Yorkers as part of its Community Health
Survey.3 But if Defendants’ expansive claim of authority is valid, then there was
no need for the Council to go through the difficult legislative process to craft a
compromise over these bicycle parking rules. The Board could have issued the
very same regulations on its own as a matter affecting health. For similar reasons,
under Defendants’ view, the Board alone could have enacted policies like the
Council’s “green carts” legislation in 2008, which sought to increase the
accessibility of fruits and vegetables in neighborhoods with “few healthy food
options close to home.” 2008 N.Y.C. Local Law No. 9, Council Int. No. 665-A.
And even the Council’s efforts to develop smoking bans would fall under the
3 See, e.g., New York City Department of Health and Mental Hygiene, Community Health
Survey 2011, available at https://a816-healthpsi.nyc.gov/SASStoredProcess/guest?
_PROGRAM=%2FEpiQuery%2FCHS%2Fchsindex&year=2011.
10
Board’s proposed unilateral authority under Defendants’ new vision of the Board’s
powers, notwithstanding Boreali. See, e.g., 2011 N.Y.C. Local Law No. 11,
Council Int. No. 332-A (barring smoking from the City’s public parks and plazas).4
It would be untenable, of course, to vest an executive body – whose
members are appointed by the Mayor – with such broad legislative powers.5 On
many legislative matters, such a body would wield essentially unchecked powers,
and could act unencumbered of the essential deliberative and political concerns
that the City Council is designed to represent, to accommodate, and to balance.
Defendants’ view of the Board’s role is further undermined by the 1989 creation of
the office of Public Advocate, which was designed to curb undue executive power.
See Green v. Safir, 174 Misc. 2d 400, 403 (Sup. Ct. N.Y. Cty. 1997). Thus, it is the
view of the amici curiae that the Board does not possess any legislative powers to
enact measures like the Ban, which aim to restrict the availability and consumption
of perfectly safe and legal foods. Only the City Council has the authority and
4 Notably, Defendants in 2011 appreciated the necessity of City Council action to enact such
bans. Rather than seeking unilaterally to impose a policy solution, the Mayor’s Administration
“partner[ed] with” the City Council to pass authorizing legislation. See Transcript, Minutes of
the Joint Committees on Health and Parks & Recreation, New York City Council (Oct. 14,
2010), at 28.
5 Such a legislative body, with appointed rather than elected members, might even run afoul of
federal constitutional requirements. See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10
& n.9 (1982) (noting that it was an “open . . . question ‘whether a State may constitute a local
legislative body through the appointive rather than the elective process’” (emphasis omitted)
(quoting Sailors v. Board of Education, 387 U.S. 105, 109-10 (1967))). To the best of amici
curiae’s knowledge, this question remains an open one.
11
institutional competence to strike a proper balance between the many intensely
political considerations – individual liberty and privacy interests, economic
interests, and public health concerns, among others – that legislation like the Ban
would impact. Importantly, while the government may interfere with such
fundamental interests in some cases, the decision to do so is a matter of important
public policy. Such decisions must be, and are, reserved to the elected legislature.
B. The Board Has No Legislative Powers To Enact the Ban
The text and history of the City Charter, and numerous judicial opinions,
confirm that the Board has no legislative powers to enact the Ban. They establish
that the City Council is the only body within New York City that may exercise
such legislative authority.
The City Charter states unambiguously that the City Council is “the
legislative body of the city.” N.Y.C. Charter § 21; see also Under 21 v. City of New
York, 65 N.Y.2d 344, 356 (1985) (executive branch “may not unlawfully infringe
upon the legislative powers reserved to the City Council”). The Charter does not
purport to grant legislative authority – let alone sole legislative authority – to any
other city body. Specifically, the Charter does not ascribe any legislative powers to
the Board. Instead, section 556 of the Charter permits the Board only to “regulate”
matters affecting health. The Board’s authority to amend the health code is subject
to this limitation imposed by the Charter. See N.Y.C. Charter § 558(b)-(c).
12
It is true that the 1936 Charter Revision Commission and a few subsequent
judicial decisions described the Board’s powers in legislative terms, as Defendants
note. See Appellants’ Br. at 24-27. But this does not mean that the Board actually
held any inherently legislative powers, for such powers would plainly violate the
fundamental separation of powers established by the State’s Constitution and the
City Charter. As the Court of Appeals stated in the early 20th century, “[a] review
of the . . . judicial authorities in this state . . . clearly shows that . . . powers
inherently and exclusively legislative cannot be delegated . . . .” Village of
Saratoga Springs v. Saratoga Gas, Elec. Light & Power Co., 191 N.Y. 123, 138
(1908). Thus, Defendants’ cases are best understood only to address
straightforward, permissible delegations of substantive rulemaking authority by the
Legislature. The fact that older court decisions occasionally described such
delegated powers as “legislative” is simply an artifact of an older nomenclature. In
modern parlance, these were merely administrative rulemaking powers, exercised
pursuant to valid legislative delegations. Executive agencies like the Board do not
hold, and could never have held, the inherently legislative policymaking powers
that Defendants now claim.
Moreover, regardless of the powers the Board might have once held, the
modern structure of the City’s government establishes a far stronger City Council
role, which was not present at the time of the earlier court decisions on which
13
Defendants rely. All of these decisions pre-date the strengthening of the City
Council in recent decades, and the consolidation of legislative authority in the
Council. Prior to 1989, for instance, the Council had shared legislative authority
with the Board of Estimate. But following federal court decisions finding that the
voting structure of the Board of Estimate was unconstitutional in light of its
legislative powers, New York City voters that year approved revisions to the
Charter that the 1989 Charter Revision Commission described as “the most
dramatic revisions to their charter since 1901.” Among other changes, the revisions
“shifted all of [the Board of Estimate’s] legislative powers to an enlarged City
Council.” Final Report of the New York City Charter Commission, January 1989 -
November 1989, at 1 (Mar. 1990).6
Thus, by the time the 1989 revisions took effect, if not before, it had become
abundantly clear that only the City Council held legislative powers within New
York City. Moreover, the powers and structure of the Board of Health itself had
undergone significant revisions between 1967 and 1979. See Laws of N.Y. 1971,
ch. 626 (rendering Board subordinate to State Commissioner of Health, State
Department of Health, and State Public Health Council); 1967 N.Y.C. Local Law
No. 127 § 1700 (altering structure of public health agencies); 1977 N.Y.C. Local
6 Available at http://www.nyc.gov/html/charter/downloads/pdf/1989_final_post-
election_report.pdf
14
Law No. 25 (similar); see also 1979 N.Y.C. Local Law No. 5 (clarifying scope of
the Board’s powers). The cumulative effect of these revisions was to vest the City
Council unambiguously with the entirety of the City’s legislative powers; thus,
nothing could have remained of any vestigial legislative authority on the part of the
Board – to the extent the Board held any such authority in the first place. It is
unsurprising, then, that the more recent case law makes clear that the Board is an
ordinary executive agency, not a legislature. See Am. Kennel Club, Inc. v. City of
New York, Index No. 13584/89, slip op. at 7 (Sup. Ct. N.Y. Cty. Sept. 19, 1989)
(rejecting argument that the Board of Health was vested with authority to act
legislatively in any health-related manner); Carr v. Schmid, 105 Misc. 2d 645, 647
(Sup. Ct. N.Y. Cty. 1980) (“Health Code regulations are not the direct legislative
enactment of any elected legislative body.”).
To the extent Defendants rely on the Board’s historical powers as described
by older case law, that authority is limited to the Board’s traditional roles of
directly treating disease and preventing contagions, eliminating inherently
dangerous or unsanitary conditions, and excluding contaminated, adulterated, or
toxic foods or drugs from the City. The Board cannot extend any delegated
authority beyond these “limits . . . measured by tradition.” Grossman v.
Baumgartner, 17 N.Y.2d 345, 350-51 (1966) (internal quotation marks omitted).
Thus, there is little question that the Board may, for instance, regulate gas
15
refrigerators to prevent dangerous accumulations of carbon monoxide – a poison.
See People v. Weil, 286 A.D. 753, 757 (1st Dep’t 1955). Likewise, the Board may
regulate activities to ensure that they are conducted in a sanitary matter that
prevents the spread of infectious diseases, such as the Board’s regulation of
tattooing to prevent the spread of hepatitis. See Grossman, 17 N.Y.2d at 351. As
discussed above, such regulatory efforts are more properly understood as valid
exercises of administrative rulemaking authority – not legislative policymaking.
But regardless of the nomenclature, these cases clearly illustrate the traditional
boundaries of the Board’s powers.
The Ban plainly exceeds these boundaries, however, by restricting
consumption of perfectly safe, legal foods. To be sure, it may well be true, as
Defendants and their supporting amici suggest, that addressing obesity requires
policy tools that go beyond the Board’s traditional powers. See Appellants’ Br. at
33. But this does not mean that the Board may unilaterally conjure up the authority
to create such novel policies from whole cloth. This is particularly true where, as
here, such policies may impinge important liberty and privacy interests, along with
economic and public health concerns. Cf. N.Y.C. Board of Estimate v. Morris, 489
U.S. 688, 703 n.10 (1989) (“exigencies of history or convenience” cannot justify
“debas[ing] . . . constitutional right[s]”).
16
The proper forum for developing policies appropriate to these new public
health challenges is the elected legislature – the body with the greatest institutional
competence for representing and balancing the City’s myriad interests. No
legislature has yet promulgated a policy framework under which the Board might
develop rules like the Ban. Tellingly, Defendants do not even try to identify such a
statutory framework. And indeed, the City Council and State legislature have
rejected a number of measures that, like the Ban, would specifically target certain
foods like sugar-sweetened beverages for reduced consumption. See Section II.C,
infra. Unless and until the legislature passes such a measure providing such a
framework, the Board has no power to create one on its own.
II. The Ban Establishes Legislative Public Policy That Only the State or
City Legislature May Enact
Because the Board had no independent legislative authority to enact the Ban,
it only possessed the limited power of administrative rulemaking. The Boreali
decision provides the proper framework for determining whether an agency
improperly acts beyond this administrative rulemaking authority and intrudes into
legislative policymaking. As current Council Members, amici curiae can offer
insight into the particular elements of the Ban that reflect a balancing of health
concerns with other non-health interests, and that render the Ban a legislative
enactment rather than an administrative rule. Under Boreali, a legislature must
perform this balancing in the first instance, for the task of “striking the proper
17
balance among health concerns, cost and privacy interests . . . is a uniquely
legislative function.” Boreali, 71 N.Y.2d at 12.
No legislature has done so here. Although Defendants seek to emphasize the
more scientific aspects of the Ban, they fail to realize that independent of these
technical considerations, the Ban presupposes a fundamentally legislative policy
framework – namely, that the complex social, cultural, and behavioral factors
underlying obesity should be addressed by targeting sugar-sweetened beverages,
and by discouraging their consumption by limiting portion sizes. The Board acted
outside of its authority, and in violation of the separation of powers, by
implementing this legislative framework through the Ban without the Council’s
approval.
A. The Ban Is Largely Based on Social, Economic, and Other Non-
Health-Related Considerations
The lower courts correctly determined that the Ban created significant
exceptions based on economic, political, and social considerations. In the
experience of amici curiae, efforts like the Ban to encourage or discourage
consumption of specific foods necessarily impinge on a wide variety of non-health-
related interests – for instance, consumers’ liberty and privacy interests, and the
economic interests of food vendors. These factors, among others, must be
considered when singling out particular foods, and when selecting a means of
encouraging or discouraging their consumption.
18
The Ban is no exception. It establishes a policy framework that embodies
two critical, political policy determinations of the sort that have long been reserved
to the Council in its anti-obesity or healthy-eating efforts. First, the Ban targets a
specific food category – certain sugar-sweetened beverages – that the Board
believes some New Yorkers overconsume. Second, the Ban prescribes a specific
mechanism to discourage New Yorkers from eating that food – here, dictating a
maximum single portion size in certain food service establishments. Under
Boreali, both of these decisions are uniquely legislative because they require
balancing health concerns with a variety of non-health concerns such as cost,
individual privacy and liberty, and adverse impact on affected businesses, among
others. See Boreali, 71 N.Y.2d at 12. Thus, in creating the Ban, the Board
improperly exercised legislative policymaking powers, even if the Board
separately exercised some technical expertise within the Ban’s new policy
framework.
By targeting only certain sugar-sweetened drinks with the Ban, the Board
necessarily looked beyond health concerns. Indeed, since a basic premise of the
Ban is that New Yorkers consume excessive quantities of sugary drinks, the
Board’s decision to regulate only these drinks required that any health concerns be
weighed against New Yorkers’ strong preference (according to the Board) for
consuming such drinks. That is, the Board necessarily concluded, as a threshold
19
matter, that health concerns outweighed the costs of infringing individual liberty
and privacy to purchase such drinks. But as the Council’s own experience bears
out, and as further evidenced by the intense public interest in the Ban, this
threshold decision to regulate a particular food at all is profoundly political. Such
decisions necessarily reflect a balance between health concerns, individuals’
liberty to choose food for their diet, and businesses’ financial interest in providing
that food for purchase. An executive agency cannot perform this balancing on its
own. See Boreali, 71 N.Y.2d at 12.
The Board’s decision to target a specific food that is not adulterated or
contaminated by toxins or food-borne pathogens, without targeting other high
calorie foods or drinks, highlights the Ban’s novelty and the need for legislative
approval. Importantly, the Board has never stated that sugary drinks are inherently
unsafe to consume. Their public health significance is simply that they add calories
to one’s diet, and that, in the Board’s view, some New Yorkers enjoy them to an
“excessive” degree, leading to obesity and obesity-related ailments. But “calories,”
per se, are not dangerous. Indeed, they are a necessity for life. See, e.g., Metzen v.
United States, 19 F.3d 795, 802 (2d Cir. 1994) (noting that if “calorie intake is too
low, [a] person might not intake enough nutrients necessary to sustain life”). And if
“calories” were dangerous in some sense, then essentially all food bears the same
potential danger, even though most foods are unaffected by the Ban.
20
Thus, any public health risk from sugar-sweetened drinks does not arise
from the drinks themselves, but from the behavior of some New Yorkers in
consuming these drinks, in conjunction with other high-calorie foods in their diets
and insufficient physical activity. As explained in more detail below, the decision
to regulate these drinks on the basis of consumer preference is far removed from
the Board’s traditional role in regulating foods that carry some inherent danger
when consumed. See Section II.B, infra. This decision therefore required a fresh
legislative balancing of the relevant health concerns and social costs – a balancing
that only the Council could perform.
The Board also engaged in such uniquely legislative balancing when it opted
to regulate the maximum portion size of such drinks instead of adopting some
other regulatory strategy. As amici curiae Council Members can attest, even if
there is agreement as to a specific goal, there may be many potential strategies for
achieving this goal – each presenting a different balance of costs and benefits to
different parties. Absent any legislative guidance or delegated authority in this
regard, the Board had no power to select a portion-size rule over other policy
options on its own, as it did.
Indeed, the Council itself has examined – but has not enacted or
recommended – a variety of potential strategies that would have targeted
consumption of sugar-sweetened drinks. See Section II.C, infra. Assuming the
21
Council agreed to target such drinks specifically in the first place, they might be
taxed, excluded from food stamp benefits, or age-restricted. Other policy options
might target the display of sugar-sweetened drinks in retail stores, or simply bar
their sale in certain places. Incentives could also help reduce consumption.
Alternative drink options might be made more widely available in certain
neighborhoods – like the “green carts” effort with respect to fresh produce – or
retailers might be granted tax or other monetary incentives to stock or to promote
lower-calorie beverage alternatives.
Each of these policy options strikes a different balance between the Board’s
stated health concern – combating obesity – and consumer preferences, individual
liberty interests, and the business interests of drink makers and retailers. Excise
taxes could discourage consumption more broadly and raise funds, but would also
be regressive. Making available more lower-calorie alternatives would preserve
consumer choice, but might be less effective in actually changing consumption
patterns, and would require the government to expend funds. Flat bans may be
quite effective at reducing consumption, but would infringe most severely on
consumer choice.
The relative merit of these different policy options, compared with the Ban,
is not directly relevant to this litigation, of course. The salient point is that these
alternative options exist, and that the decision to adopt one over the others is
22
intensely political. So for purposes of a Boreali analysis, it does not matter that the
Ban targets the portion size of covered drinks, rather than their monetary cost (as in
a tax) or total consumption (as with an outright ban or hard limitation). Like these
other regulatory strategies, the Ban directly regulates the food choices available to
New Yorkers – it makes it more difficult for New Yorkers to purchase larger
beverage quantities, whether they intend to consume the quantity on their own or
to share.
Thus, it is largely irrelevant under Boreali that the Ban does not make it
impossible to drink larger quantities. Taxes likewise make it more difficult, but not
impossible, to consume a targeted item. Indeed, it has been recognized that taxes
on particular foods are merely one way of adjusting the “default” choices for
consumers. See Kelly D. Brownell, et al., Personal Responsibility And Obesity: A
Constructive Approach To A Controversial Issue, 29 HEALTH AFFAIRS No. 3
(2010), at 386 (“Changing food prices is a means of creating better defaults.”).
Such taxes are therefore similar to the “default”-focused strategy represented by
the Ban. The critical point about the Ban, under Boreali, is simply that the size
limitations imposed by the Ban are one possible strategy, among others, for
targeting specific foods. Even if a legislature decides to single out such foods, it is
a further legislative task to choose among the many possibilities for doing so. The
Council and other legislative bodies are uniquely suited to fulfill this, and they did
23
fulfill this task in declining to adopt laws targeting sugar-sweetened drinks. The
Board had no power to perform this legislative balancing on its own.
Critically, because the Board made these legislative policy decisions as a
threshold matter, the Ban is not saved simply because it is purportedly based on
scientific and health considerations, or because it accommodates DOH’s
enforcement jurisdiction. To be sure, had the City Council previously enacted
legislation expressing the public policy that New Yorkers’ consumption of sugar-
sweetened beverages should be discouraged by banning large portion sizes, and
had the City Council delegated to the Board the task of filling in the details of this
policy, then a measure like the Ban might very well satisfy Boreali. But of course,
the City Council has not done so. It therefore does not matter whether or not the
Ban may reflect some degree of scientific or technical expertise – the Ban’s
underlying policy framework never received legislative consideration or approval,
as Boreali demands.
B. The Ban Creates a Novel Regulatory Regime Without Legislative
Guidance or Approval
The lower courts correctly concluded that no provision of the City Charter
empowered the Board to enact the Ban. Defendants claim authority to enact the
Ban based on their general powers “to regulate all matters affecting the health in
the city of New York,” including their more specific jurisdiction “to supervise the
reporting and control of communicable and chronic disease” and to “supervise and
24
regulate the food and drug supply of the city.” See Appellants’ Br. at 42, 45. But
this generalized authority does not permit or direct the Board to regulate safe and
legal foods differently on the basis of dietary consumption patterns, as the Ban
seeks to do. In enacting the Ban, the Board ventured far beyond its traditional
sphere of delegated authority, and into a regulatory arena where no legislative body
has yet established an appropriate public policy. Thus, the Board did enact the Ban
on a “clean slate.”
Of particular concern to the amici curiae Council Members is Defendants’
assertion that the Board possesses the power to enact measures like the Ban based
on the Board’s prior efforts to restrict use of lead paint and artificial trans-fats, or
to require calorie count labeling in certain establishments. See Appellants’ Br. at
46-47. This assertion is incorrect.
Although Defendants contend that the Board’s trans-fat restrictions are
“particularly instructive,” the Council’s actions following the measure’s passage
indicate that the Board actually could not have validly enacted the measure
pursuant to its authority under the Charter. Similar to the Ban here, the Board
selected a specific policy option – an outright ban in restaurants – over other
potential policies for reducing New Yorkers’ trans-fat consumption. For these
reasons, the trans-fat ban was effectively a legislative act, which would not have
survived a challenge under Boreali.
25
But importantly, there never was an opportunity for such a challenge. Unlike
the Ban here, where the Council was effectively shut out, the Board developed its
trans-fat ban at around the same time as the Council’s equivalent measure. See
Transcript, Minutes of the Committee on Health, New York City Council (Mar. 1,
2007) (“March 1st Trans-Fat Hearing”), at 6.7 At Council hearings, the Council
Member who authored the trans-fat ban noted that one reason the Council passed it
was to “strengthen the Board of Health’s acts legally, [and to] take away any
potential challenges to what they’ve done.” Id. at 7.8 In other words, by
legislatively ratifying the Board’s action, the Council made moot any legal
challenges – like the one here – to the Board’s rulemaking. So even though the
Board’s enactment of the trans-fat ban was likely impermissible on its own, the
Council foreclosed any challenge under Boreali by enacting the exact same ban
itself. See id. Thus, the Council’s ratification of the Board’s trans-fat ban actually
emphasizes the limits of the Board’s authority – the Board cannot enact rules on its
own establishing new public policy with substantial non-health concerns, but must
instead seek Council authority to do so.
7 Available at http://legistar.council.nyc.gov/View.ashx?M=F&ID=669382&GUID=492C647D-
FBEE-4B72-8946-D9EBEC10023B.
8 Thus, it is misleading for Defendants to claim that “no council member expressed any belief
that the Board had exceeded its authority in adopting the artificial trans fat restriction.”
Appellants’ Reply Br. at 29.
26
In this vein, Defendants incorrectly contend that the Council “implicitly
recognized” the Board’s authority to promulgate the trans-fat ban. Appellants’ Br.
at 47. In fact, the legislation merely recites the obvious fact that the trans-fat
restrictions already appeared in the City’s Health Code, which the Board has the
authority to amend under § 558 of the City Charter. But importantly, the legislation
never states that the substance of this rule was actually within the Board’s
jurisdiction to enact under §§ 556 or 558 of the Charter, or that the Council
believed the Board could validly act unilaterally in this regard. In light of the
hearing testimony described above, members of the Council clearly were
concerned that the Board did not possess such unilateral authority. For these
reasons, the Board’s action on trans-fats says nothing about its ability to enact a
measure like the Ban without the City Council’s approval.9
The Board’s adoption of physical activity and nutrition requirements for day
care facilities similarly does not advance Defendants’ argument. See Appellants’
Br. at 46; Appellants’ Reply Br. at 33. The Board has long held authority to
supervise day care facilities; indeed, the Charter specifically requires the Board to
9 Similarly, a briefing paper prepared for the Council to aid in evaluation of the Mayor’s
nominees to various boards lends no support to Defendants’ argument. See Appellants’ Br. at 47
(citing “Briefing Paper of the Committee on Rules, Privileges, and Elections” dated September
21, 2011, at 2) (available at
http://legistar.council.nyc.gov/View.ashx?M=F&ID=1564868&GUID=E40780AC-F987-49E8-
BDF4-D46909F60B80). It does not purport to analyze the Board’s powers, but merely provides
rudimentary background in the course of introducing two Board nominees.
27
inspect such facilities to ensure “adequate [and] appropriate care” for the children
they serve. N.Y.C. Charter § 558(d). The rules governing day care centers set
precise limits on the minutes children may watch television and specify the
duration, type, and location of required exercise activities. See R.C.N.Y. tit. 24,
§ 47.71. Under Defendants’ analogy to the Board’s day care authority, the Board
would be permitted to promulgate similar television-viewing limits and exercise
requirements for all New Yorkers in the name of controlling chronic disease. The
absurdity of that suggestion demonstrates that the Board’s power over day care
facilities stems not from a “broad authority to protect the health of the City’s
children,” Appellants’ Reply Br. at 33, but rather the Board’s specific authority to
regulate day care facilities.
For somewhat different reasons, the Board’s calorie-labeling rule also does
not indicate that the Board’s powers extend so broadly as to permit direct
restrictions on consumers’ consumption of safe and legal foods. As with the trans-
fat ban, this rule has not faced a challenge under Boreali. But in any event, it is a
very different rule compared with the Ban. The calorie-labeling rule reflects the
Department’s “public education” function described in the Charter. N.Y.C. Charter
§ 556(d)(4). Moreover, it does not single out any particular food and is purely
informational – it does not change the difficulty or cost of obtaining a particular
food while making exceptions for other foods. Thus, the calorie-labeling rule,
28
unlike the Ban, applies across different food types, and does not impinge the same
non-health concerns such as individual liberty or privacy interests with respect to
food preferences.
The Board’s ban on lead paint falls even further afield from the Ban at issue
here. By restricting use of lead paint, the Board permissibly sought to limit
exposure to a known toxin. See R.C.N.Y. tit. 24, § 173.13. But this is completely
different from sugar-sweetened drink consumption. Unlike lead paint, there is
nothing inherently unsafe about these drinks. Rather it is New Yorkers’ excessive
preference (in the Board’s view) for such drinks that drives the Board’s claimed
health concern, not any specific property of the drinks.
Of course, unlike the health conditions caused by lead exposure, obesity is
not caused by exposure to any particular toxin, nor does it spread similarly to the
communicable and food-borne diseases whose control has historically been the
core function of municipal health departments. See Introductory Notes to New
York City Health Code, Title II (“[T]he control of communicable diseases remains
one of the Board’s core functions.”).
Instead, obesity and obesity-related ailments develop based on a person’s
personal characteristics and environment – including social, behavioral, and
cultural factors. See The Evidence Report at xi. The fact that obesity is tied to such
non-physical factors means that, as a disease or health condition, obesity presents
29
fundamentally different public health challenges compared with communicable
diseases. Thus, the Board’s “supervisory” and “control” powers under the Charter
with respect to such diseases – i.e., under N.Y.C. Charter § 556(c)(2) – say nothing
about the extent of the Board’s power to override individual preferences that might
contribute to a complex condition like obesity.
Defendants apparently recognize that obesity presents a unique challenge
that may require powers that go beyond the Board’s traditional authorities. See
Appellants’ Br. at 48 (noting that “flexibility is particularly important in certain
complex fields where the Legislature cannot foresee all variables”). The amici
curiae Council Members also recognize this fact – indeed, the Council has
considered, and continues to develop, the new policy strategies that might be
required to address obesity and the complex factors associated with it.10 But
precisely because these strategies are so new, they impinge a wide array of social,
10 See, e.g., 2008 N.Y.C. Local Law No. 9, Council Int. No. 665-A (establishing a “green carts”
program to expand access to fresh fruits and vegetables); GrowNYC, Healthy Food, Healthy
City: Greenmarket EBT 2011 Progress Report,
available at http://www.grownyc.org/files/gmkt/EBT/2011EBTReport.pdf (providing support for
the Electronic Benefits Transfer program, which
permits the use of food stamps at farmers markets); Community Health Care Association of N.Y.
State, Defining New Directions: New York City Childhood Obesity Initiative, available at
http://www.chcanys.org/index.php?src=gendocs&ref=NYC-Childhood-Obesity-Initiative
(providing support for the New York City Childhood Obesity Prevention and Management
Consortium); New York City Council Fiscal Year 2014 Adopted Expense Budget at 20,
available at
http://www.council.nyc.gov/downloads/pdf/budget/2013/FY%202013%20Schedule%20C%20-
%20Merge%20Final1.pdf (providing ongoing financial support for Obesity Intervention
Programs that provide education on nutrition, obesity, and physical fitness).
30
political, and economic concerns in ways that are very different from the Board’s
traditional public health roles. Thus, it is up to the City’s and the State’s legislative
bodies to develop and approve these strategies in the first instance. Because no
legislature has yet done so, the Board lacked the requisite legislative guidance
when it enacted the Ban on its own.
C. The Issue of Sugar-Sweetened Beverage Consumption Is an Area of
Ongoing Legislative Debate
The amici curiae Council Members and Public Advocate are well aware that
the City Council has considered, but rejected, a number of measures that relate to
sugar-sweetened beverage consumption. Defendants incorrectly argue, however,
that they may act unilaterally in this field simply because neither the Council nor
the State legislature has specifically considered banning large portion sizes as a
means of reducing such consumption. This approach reads these legislative efforts
far too narrowly. The salient point is that no legislative body has approved of
targeted restrictions on sugar-sweetened beverages, despite intense deliberation
over many different possible approaches for doing so.
Specifically, the Council recently considered a resolution – N.Y.C. Council
Res. No. 1265-2012 (Mar. 2012)11 – that would have sought state legislation to add
11 Available at
http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1102924&GUID=B0BB5DD1-56C8-
431C-A191-221D3A678B4E.
31
an excise tax to certain sugar-sweetened beverages. Like the Ban, this measure
would have endorsed a specific means of discouraging their consumption – i.e., by
increasing their cost relative to other foods via a tax. Id. The Council did not
approve this resolution, however.
A separate proposed Council Resolution – N.Y.C. Council Res. No. 0768-
2011 (Apr. 2011)12 – would have favored an alternative and differently targeted
method for discouraging sugar-sweetened beverage consumption. Instead of a tax
that would increase the cost of these beverages for all consumers, this Resolution
would have asked the U.S. Department of Agriculture to permit the City to prohibit
the use of food stamps for sugary beverages (but excluding “milk, milk substitutes,
or fruit juices with no added sugar”). Id. Thus, the Resolution sought to discourage
such beverage purchases by withholding a benefit from certain residents, rather
than by imposing a cost broadly. This particular mechanism, of course, would have
affected the interests of City residents very differently than an excise tax –
particularly for low-income residents. It nonetheless represents one policy choice,
12 Available at
http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=862347&GUID=14B3F44A-502C-
410F-96A2-8420D81DBB6C.
32
among many others, for discouraging consumption of sugary beverages. The
Council did not approve this resolution either.13
In light of the vigorous public debate that has engulfed proposals such as a
soda tax or food stamp restrictions, the legislative record indicates that, at least for
now, the Council – having weighed the competing health, social, and economic
concerns – does not agree that laws specifically targeting sugar-sweetened
beverages are appropriate. But it is not the role of administrative bodies to resolve
these profoundly difficult political issues on their own to reach a contrary result,
especially when such debates already have been aired in elected, representative
bodies like the City Council.
D. The Board’s Expertise Was Not Necessary To Make the Fundamental
Policy Decisions To Target a Safe and Legal Food, and To Limit Its
Availability by Capping Portion Sizes
The Appellate Division was correct in finding that the Ban’s enactment
required no exercise of specialized expertise. Although some aspects of the Ban
may reflect scientific conclusions, it is important to recognize that the critical
policy decisions underlying the Ban – i.e., the decisions to target certain sugar-
sweetened beverages and to do so by imposing a maximum portion size in some
13 Still another resolution would have urged the U.S. Food and Drug Administration to require
warning labels on sugary beverages. Available at
http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1102925&GUID=5EAE5E93-0881-
4D42-B76C-A47B70E7AAB4. The Council also did not approve this resolution.
33
establishments – did not require the Board’s special expertise in the health field.
Rather, these decisions were basic policy determinations that required weighing the
possible health benefits of reducing sugary drink consumption against the
important social and economic costs of such regulation.
In other words, the Ban can be understood to comprise two distinct sets of
decisions: 1) the threshold legislative policy determinations to single out sugar-
sweetened beverages by banning large portion sizes; and 2) more technical
decisions such as setting a 25 calorie per 8 fluid ounce threshold for such
beverages. If the Board’s role were limited to the latter set of decisions, then this
rule might have been permissible if a legislative body had properly enacted the first
set of threshold policy decisions. But in this case, the Board improperly made both
sets of decisions on its own, without any legislative role or guidance. Thus, the
Board’s enactment of the Ban also fails the fourth Boreali factor.
34
CONCLUSION
For the foregoing reasons, this Court should affirm the decision and order
appealed from.
Dated: May 12, 2014
WATKINS BRADLEY LLP
________________________________
Adam Francois Watkins
228 Park Avenue South #14905
New York, New York 10003
(212) 937-4281
Attorneys for Amici Curiae New York City Council
Members Maria del Carmen Arroyo, Inez Barron,
Fernando Cabrera, Andrew Cohen, Costa
Constantinides, Robert E. Cornegy, Laurie A. Cumbo,
Chaim Deutsch, Rafael Espinal, Julissa Ferreras,
Daniel R. Garodnick, Vincent J. Gentile, Vanessa
Gibson, Vincent Ignizio, Corey Johnson, Peter Koo,
Karen Koslowitz, Rory Lancman, Mark Levine, Alan
Maisel, Melissa Mark-Viverito, Steve Matteo, Rosie
Mendez, Annabel Palma, Antonio Reynoso, Donovan
Richards, Ydanis Rodriguez, Deborah Rose, Ritchie
Torres, Eric Ulrich, Paul Vallone, and Mark Weprin,
and New York City Public Advocate Letitia James
On the brief: Stephanie F. Bradley