Professional Documents
Culture Documents
152723/2014
::l::I.:Yr:T
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Plaintiffs,
-against
Defendants,
ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Respondents
January 16,2015
TABLE OF CONTENTS
STATEMENT OF FACTS
ARGUMENT
II
DEFENDANTS' MOTION SHOULD BE
GRANTED DISMISSING THE COMPLAINT
AS A MATTER OF LAW
BECAUSE
A. The Single
Subject Rule
B. Local Law 152 Does Not Violate The Single Subject Rule
REASONS,
13
PRELIMINARY STATEMENT
Defendants, the City of New York ("City"), the New York City Council ("City
Council"), and Melissa Mark-Viverito, in her official capacity as Speaker of the New York City
in
support
of
Summary Judgment, made pursuant to Civil Practice Laws and Procedure Rules ("CPLR") Rule
3212.
Local Law 152 enacted amendments to the New York City Administrative Code
("Admin, Code") at Title 17, Chapter 5, which regulate electronic cigarettes in the City of New
York City where smoking is prohibited, including public places such as restaurants and bars;
was
libraries and museums; parks and beaches; and places of employment.3 (A copy of Local Law
152 is at Exhibit
uC",)4
On or about March 25, 2014, Plaintiffs filed the instant action. (A copy of the
"4",)
(the "Complaint"), Plaintiffs challenge the constitutionality of Local Law 152. Specifically, the
it
"One Subject Rule"s contained in the New York State Constitution, Article
III, Sl5;
the New
York Municipal Home Rule Law ("MHRL"), Article 3 $20(3); and the New York City Charter
("Charter"), Chapter 2, 32. (Complaint, First Cause of Action, nn69-72.) The Single Subject
Rule requires that a legislative enactment shall embrace only one subject, which shall be referred
to in its title.
Plaintiffs seek declaratory relief, declaring that Local Law 152 is unconstitutional,
and null and void. (Complaint, Second Cause
permanent injunction, enjoining Defendants from implementing or enforcing Local Law 152.
when
The use of electronic cigarettes continues to be permitted in all areas where smoking is not
regulated, including private residences, hotel and motel rooms, private automobiles, City streets
and sidewalks, and in retail electronic cigarette stores. The law provides an exception for retail
electronic cigarette stores that mirrors an exception for retail tobacco stores, which allows
smoking in stores where sales of tobacco constitute at least 50Yo of annual gross sales. Both
retail electronic cigarette and retail tobacco stores have to register with the New York City
Department of Health and Mental Hygiene ("DOHMH") in order to verify that they fit into
smoking and electronic cigarette use exceptions for generating sales mostly from electronic
cigarettes or tobacco products, respectively. The enforcement and penalties provisions related to
the use of electronic cigarettes are identical to those related to smoking.
a
The Exhibits referred to herein are annexed to the Defendants' moving papers in the instant
Action, and will be referred to as "Exh".
t The "One Subject Rule" is also called the "single Subject Rule," It will be referred to as the
Single Subject Rule" herein regardless of which legislative provision or provisions are being
referenced.
.|
allegations in the Complaint mis-state the Single Subject Rule, and misapply the rule as to Local
Law 152. The Single Subject Rule is applicable only to particular legislative actions, such
bills or Local Laws, Plaintiffs wrongly claim that the Single Subject Rule was violated
there are allegedly multiple subjects
in the
sections
as
because
.6
Subject Rule does not apply to codified laws such as statutes or codes, or to the titles or section
headings in codified
does not
laws. The Single Subject Rule, which applies only to legislative actions,
limit the Administrative Code sections that codify those actions to a single subject,
Accordingly, even if the codified law referenced in the Complaint does address multiple subjects
as Plaintiffs claim, the Single Subject Rule is inapplicable
which is the legislative action, clearly contains only one subject, the title of which properly
describes its contents. Thus Local Law 152 comports with the Single Subject Rule
respects. Finally, there can be no violation of New York State Constitution, Article
III,
in
all
$15, as
that provision only applies to state legislative bills, and therefore is not applicable to the Local
Law at issue in this case. Thus, as a matter of law Plaintiffs cannot meet their burden of proof to
succeed on their claims. Accordingly, Defendant's Motion for Summary Judgment should be
granted, and Plaintiffs' claims should be dismissed with prejudice.
Solely for the purpose of this dispositive motion, Defendants do not dispute the facts alleged by
Plaintif in the Complaint,
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STATEMENT OF FACTS
Defendants have set forth a statement
Sherrill Kurland signed January 16,2015 and submitted in Support of Defendant's Motion for
Summary Judgment ("Kurland Aff,"), along with the exhibits submitted therewith in support of
the statement of material facts, Defendants hereby incorporates by reference those statements
and the supporting evidence herein.
as
follows:
states the
-4
relating
to
codification
or
recodification of
a treatise
The title
the
enactment and gives notice of the purpose which its
sponsors had in mind, It is generally sufficient
where it sets forth substantially the general pupose
of the bill and fairly suggests the subject dealt with,
Chapter
6 of McKinney's
and
interpretation of statutes, Section 123 of Chapter 6 describes the functions of statutory titles,
headings and marginal notes. McKinney's Statutes at $123(a) differentiates the title of a statute
b. Headings
A heading ofa portion ofa statute such as a chapter
or a section usually is not part of the act and does
not extend or restrict the language contained in the
body of the statute, although it may be resorted to as
an aid in ascertainment of the legislative intent
where a provision is ambiguous in meaning,
as
a preliminary statement in the nature of a label which defines the scope of the enactment.
Strictly speaking it is not part of the act, and a title, except with respect to private and local laws,
is not necessary to the validity of a statute.,. . Titles are to be distinguished from headings of
chapters or sections of a code, which are sometimes treated as part of the act itself."
ARGUMENT
POINT
-6-
When a party moves for summary judgment, the party opposing the motion must
come forward with admissible evidence, such as documents and affrdavits, demonstrating the
existence of a material issue of fact requiring
trial.
of hope or
When no material issue of fact exists and the undisputed facts establish that
party is entitled to judgment as a matter of law, summary judgment should be granted, Meth v.
Kolker, 39 A.D.2d651,652 (1st Dep't 1972); see also Long Island R.R. v. Northville,4l N.Y.2d
455,461 (1977). The appellate courts of this State have stressed that summary judgment is an
appropriate vehicle for the prompt and efficient disposition
of
without hesitation" when there is no genuine issue of fact surrounding a cause of action. Blake
v, Gardino,35 A.D.2d 1022,1023 (3rd Dep't 1970), aff d, 29 N.Y,2d 576 (1972);
see also
lIl
Andre
(2d Dep't
1977), af?d,43 N,Y.2d 941 (1978); DiSabato v. Soffes,g A.D.2d297,299 (1st Dep't 1959), As
will be demonstrated below, it is clear that no genuine issues of material fact exist that would
preclude the granting of summary judgment in favor of Defendants, and that Plaintif' claims
in favor of Defendants.
The issue in this case is purely a legal issue, thus there is no need to engage in discovery in
order to resolve this case.
7-
POINT
II
Rule
The "Single Subject Rule" in New York State has its origin in the New York State
at Art.
III,
15. The rule provides that "No private or local bill, which may be passed by the legislature, shall
embrace more than one subject, and that shall be expressed in the
to
prevent legislators, and public at latge, from being deceived by the contents of a proposed
legislative act.
bills under consideration by the State legislature, Petition of Mitrione v. Cit), of Glens Falls,
14
A,D.2d716 (3d Dep't 1961); Rebeor v. Wilcox, 58 A.D.2d 186,192 (4th Dep't 1977).
The "Single Subject Rule" Charter provision, Charter $32, was included in the
1936 Charter. The provision mirrors the MHRL Single Subject Rule requirements for
enactments. Burke v. Kern, 287 N.Y. 203,212-213 (1941),
The constitutional provision of the Single Subject Rule by its terms applies only
to state legislative
of the Single
Subject Rule by their terms apply to local legislative enactments. Nonetheless, the Courts have
interpreted and applied the "Single Subject Rule" in essentially the same manner regardless of
8-
whether it is the constitutional provision, the MHRL provision or the Charter provision at issue,
Petition of Mitrione v. City of Glens Falls, 14 A.D.2d 716 (3d Dep't 1961); Burke v, Kern, 287
N.Y. 203, 212-213 Qgal); Rebeor v. V/ilcox, 58 A.D.2d 186,192 (4th Dep't 1977).
The purpose of the Single Subject Rule is to prevent concealment and surprise to
the members of the Legislature and to the public at large, and to prevent legislative "logrolling."
Economic Power
&
Constr. Co. v, City of Buffalo, 195 N,Y. 286 (1909), The constitutional
provision was created as a result of the success of Aaron Burr in persuading the Legislature to
grant him a charter for a water company which had hidden among its provisions a clause
enabling him to found a bank. Burke v. Kern, 287 N, Y, 203,213 (1941), The historical reason
for the enactment is described in more detail in Matter of Cib of New York [Clinton Avenue],
57
1901):
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tests,
chief among which has been a limitation of the subject-matter to one subject, which, however,
may embrace the carrying out of that subject matter in various objective ways, provided the
objectives are naturally connected with the subject-matter and the title could be said to apprise
the reader of what may reasonably be expected to be found in the statute. Conner v, City_of New
of subject matter from the members of the Legislature and the public at large,
should be given a reasonable construction, "which will, on the one hand, uphold legislation
as
against meticulous verbal criticism and, on the other, sustain [the] requirement that a local bill
should, however detailed in purpose, embrace but one general subject which should be expressed
in the title in words which fairly suggest possible scope of such legislation," Gaynor v Port
Chester, 231 N.Y. 451 (1921), V/hile the Single Subject Rule requires that legislation embrace
being
number of purposes for the legislation. Petition of Mitrione v. Cit) of Glens Falls, 14 A.D2d
716 (3d Dep't, 1961), Where the title of a proposed legislative act deceives and misleads no one,
l8 A.D.2d
13 N.Y,2d 782
(1963), See also Burke v. Kern, 287 N.Y.203 (1941) (Local law abolishing several county
offices did not embrace more than one subject since county rcorganization was main purpose);
Richlreld Oil Corp. v. Syracuse, 287 N.Y, 234 (1942), reh. den, 289 N,Y, 651 (1942) (Method
for obtaining money to pay for public improvement is not separate subject from authority to
cause said improvement to be made); Knapp v, Fasbender,
-11-
amd.,
2 N.Y.2d 724 (1956) (A statute which ratified and confirmed the powers of the board of trustees
of the town of Huntington to acquire and manage real property and ratified and confirmed their
action acquiring beach property, making lease-purchase agreements for parking and recreation
areas, making contracts
for dredging and disposal of gravel and sand was not violative of the
Single Subject Rule as it embraced only one subject and its entire subject matter was expressed
in the title); Kerrigan v Kenn),,121 A.D.zd 602 (2d Dep't, 1986); Broad Properties. Inc. v
O'Hara, 45 A,D.2d 868 (2d Dep't 1974), affd 36 N.Y.2d 986 1975); Villaee of Gloversville v.
of New Y
Yaras, 283 A.D. 214,221 (3d Dep't 1953), aff d Application of Yaras, 308 N.Y. 864 Ol.Y,
1955); and Board of Sup'rs v. Water Power & Control Com. ,227 A.D.345 (3d Dep't 1929), affd
In recent years, appellate courts have rejected Single Subject Rule challenges on
several occasions, most recently in 2012, when the Second Department rejected a challenge to a
local law, finding that the "components of Local law No. 5 were naturally connected, and the
title apprised the reader of what may reasonably be expected to be found in the statute,,."
,
716,720 (2d Dep't 2012). See also
York H
101 A.D.2d
I of the Ci
of New York, 169 4.D,2d,547 (1't Dep't 1991); Schilling v. Dunne,Iggl A,D,2d 779,786 (2d
Dep't 1986) ("The local law embraced only one subject, to wit, zoning"); Kerrigan v. Kenny,
l2l
-12-
B. Local Law 152 Does Not Violate the Single Subject Rule
Plaintiffs'entire
the
Single Subject Rule. However, Plaintiffs have failed to establish any violation of the Single
Subject Rule, and mischaracterize its meaning.
Local Law 152 is titled "A Local Law to amend the administrative code of the
city of New York, in relation to the regulation of electronic cigarettes," (See Exh. C, at p,
1,)
The text of the legislative enactment includes legislative findings about electronic cigarettes,
(See Exh, C, at
pp.I-2.) The remainder of the text of the legislative enactment contains the
newly adopted provisions regulating electronic cigarettes, and references the sections of the
Administrative Code that were being amended to add new text relating to the regulation of
electronic cigarettes.s (See Exh. C, at pp. 2-116.) Every provision in the legislative enactment
that is Local Law 152 relates to the regulation of electronic cigarettes. There is nothing
contained in Local Law I 52 that does not pertain to the regulation of electronic cigarettes, As a
full
embraces only one subject, which is briefly referred to in the title of the enactment. Plaintiffs
fail to even allege that anything in the title of the enactment could mislead or deceive
anyone
from its contents. Rather, Plaintiffs merely allege that Chapter 5 of the Administrative Code
is
misleading because it has two subjects (See, Complaint, fl54.) This argument falls flat because,
as set forth more
Code. Indeed, the title of the enactment fairly informs the reader of what may reasonably
be
expected to be found in the enactment: the regulation of electronic cigarettes. Thus Local Law
152 does not violate the Single Subject Rule,
The underlined provisions in the text are the newly added provisions.
-1
3-
Although Plaintiffs' case is premised upon the incorrect assertion that Local Law
152 violates the Single Subject Rule, Plaintiffs
violates the Single Subject Rule, Rather, Plaintiffs' claims are founded upon their complete
misunderstanding of the Single Subject Rule. Instead of evaluating the application of the Single
Subject Rule to the legislative enactment which is the Local Law, Plaintiffs try to radically
broaden the application of the Single Subject Rule by attempting to apply it to the codification of
the laws, which are contained in the Admin, Code. Charter $ 32, and MHRL $ 20(3), on their
face, apply
(see
MHRL$2(9)), and in this case codified within the Admin. Code. The Admin. Code is itself not a
local law, but rather is amended by local laws,e The Single Subject Rule does not say thaf
chapter or title in the Admin. Code may only address one subject, rather
it
may only address one subject. There is nothing contained in any of the three versions of the laws
containing the Single Subject Rule, nor are there any reported cases in the over one hundred and
fifty year history of the Single Subject Rule, that would even suggest that the Single
Rule is applicable to the codified text of a
Subject
express purpose of the Single Subject Rule, which is to apprise the reader of the subject of the
legislative enactment; not to inform the reader of the full content of potentially vast codifications
of laws. Here, Local Law 152 of 2013 met the requirements of the Single
Subject Rule,
addressing only one subject that was accurately described in its title.
e
The Admin. Code is a compilation of various legislative enactments, including state and local
laws, as well as former City ordinances, See Section 1-0.0 from the 1937 New York City
Administrative Code, which states "Code; a restatement and codification.-The purpose of
this code is solely to codify and restate present existing statutes and laws, general, special and
local .,.", The Admin. Code was recodihed in 1985, and states, in relevant part, at $ l-02
"Legislative intent. It is the intent of the legislature by the enactment of this chapter to recodify,
without substantive change, the administrative code of the city of New York in effect
immediately prior to the effective date of this chapter."
-r4-
Plaintiffs' incorrect analysis of the Single Subject Rule begins with their historical
interpretation of various earlier legislative enactments in New York City, which include the
Clean Indoor
Air Act and the Smoke Free Air Act (and the amendments
then allege that the "title section" of Chapter 5, which they identify as Admin. Code $17-501,
remains unchanged in Local Law 152. Next Plaintiffs incorrectly claim that there are now two
subjects contained in this chapter of the Admin, Code and incorrectly allege it to be in violation
of the Single Subject Rule. (Complaint, Exh, A at flfl 53-5a.) Plaintiffs allege that the subject of
Admin. Code Title 17, Chapter 5 is the "the protection of the public from the harmful effects of
second-hand smoke exposure",ll and that Local Law 152 adds the subject the "regulation of ECigarettes", resulting in two subjects in this portion of the codified law, Next Plaintiffs reference
various other provisions of the Admin. Code, as amended by Local Law 152 (Complaint, Exh. A
at flfl 55-68), and allege that "Local Law 152 amended Chapter 5 to cover two wholly separate
subjects" (as described above.) (Complaint, Exh,
referring to the Admin. Code (Chapter 5 of Title 17), and not to the legislative enactment, which
is the Local Law to which the rule applies. As pointed out above, the Single Subject Rule is
solely applicable to legislative enactments, and there is nothing in any of the three versions of the
Single Subject Rule laws, or in any case law, that would apply the Single Subject Rule to
codification or compilation of laws, such as the Admin. Code. In fact, as the Second Department
ll
unsuccessfully
atl42.)
Although not relevant to the issues in this motion, it is not entirely clear how the Plaintif
identify as the alleged subject "the protection of the public from the harmful effects of secondhand smoke exposure," although it seems to be gleaned from some of the legislative history of
the prior legislation. However, solely for the purpose of this dispositive motion, Defendants will
assume that the alleged subject is correct.
-1 5-
recently stated in Highview Estates, cited supra, a local law should be upheld
are "naturally connected" and its
if its components
is about the subject and title of a bill being enacted, not about codified volumes of laws.
in their misunderstandings surrounding the title of an act, the title of a statute, and a statutory
chapterheading. As explained in $13, of the respected McKinney's Statutes treatise on statutory
construction, the title of an act defines the scope of the enactment and gives notice of the purpose
which its sponsors had in mind, Chapter 6 of McKinney's Statutes provides guidance for the
construction and interpretation of statutes, Section 123 of Chapter 6 describes the functions of
statutory titles, headings and marginal notes. Section I23(a) differentiates the title of a statute
from the title of an act as described in McKinneys Statutes $ l3. The commentary at McKinney's
Statutes $123(a) describe the title of a statute as
"...
label which defines the scope of the enactment. Strictly speaking it is not part of the act, and a
title, except with respect to private and local laws, is not necessary to the validity of a statute.,,
."
McKinney's Statutes goes on to explain: "Titles fof statutes] are to be distinguished from
headings of chapters or sections of a code, which are sometimes treated as part of the act itself."
McKinney's Statutes at $123(b) further explains that "[a] heading of aportion of a statute such
as a chapter
or a section usually is not part ofthe act and does not extend or restrict the language
contained in the body of the statute, although it may be resorted to as an aid in asceftainment of
-16-
the legislative intent where a provision is ambiguous in meaning."'' Thus, the title of Local Law
752"A Local Law to amend the administrative code of the city of New York, in relation to the
regulation of electronic cigarettes" is the title of the act or legislative enactment, which in this
case is a local law, and thus subject to the Single Subject
at
p. 1,) In contrast,
the heading at Admin. Code Title 17, Chapfer 5 called "Smoke-Free Air Act," and the text at
Admin, Code $17-501 are chapter and section headings.13 Neither of the Admin. Code items
constitute the title to an act or local law, and they are thus not subject to the Single Subject Rule.
In the instant matter, there is nothing in the title of the enactment that would
mislead or deceive anyone from its contents, The title of the enactment fairly informs the reader
of what may reasonably be expected to be found in the enactment. Thus Local Law 152 does not
violate the Single Subject Rule.
As a result, Plaintiffs have failed to state a cognizable cause of action, and the
Court should grant summary judgment to Defendants dismissing all of Plaintiffs' claims as
matter of law.
''
See,
13
V/hile not at issue in this case, and in contrast to the title of an enactment,
"A textual title is it'l contrast to the bill title which precedes the enacting clause (N.Y, Clonst.. art.
III, $ l3), in that the bill title is not law, and has no legal efTect except as provide d by the
Constiturtion (art, III, $ 15)."
title or heading of
&
OhioR.R.,331 U.S.519,528-529(U,S. 1947); Matterof CorriganvFireDept.of theCitvofN.Y.,28
a statute is not required to reflect the subject of the
text.
Misc, 3d 1214(A),1214A (N,Y, Sup, Ct, Qns, Co. 2010); Wells v, New York State Dep't of Transp,,90
Misc, 2d 535, 539 (S. Ct. Hamilton Co, 1977): Squadrito v. Griebsch, I N,Y,2d 411 (1956) ("'The
character of a statute', we have written, 'is to be determined by its provisions, and not by its title"'(citing
People v, O'Brien, supra, lll N.Y. at 59),) See also, People v, O'Brien, 1ll N.Y. 1,59-60 (1888); Bell
v, Mayor of Citv of New York, 105 N.Y. 139,144 (1887); Matter of New York & Brooklyn Bridge, 72
N.Y, 52
, 40 N,Y, 113, 119, 122 (1869); People v. McCann, 16 N,Y. 58
(1857);
5, 146 (3'd Dep't 1852),
-17
C. The Constitutional Provision Containing the Single Subject Rule Does Not Apply
There can be no violation of New York State Constitution, Article
III,
$15, as that
provision by its terms only applies to state legislative bills, and therefore is not applicable to the
Local Law at issue in this case. Section 15 provides "No private or local bill. which may
be
passed by the legislature, shall embrace more than one subject, and that shall be expressed in the
title."
(Emphasis added.) The provision refers only to bills which may be passed by the state
legislature, thereby excluding local legislation. Petition of Mitrione v, Cit), of Glens Falls, 14
A.D.2d 716,717 (3d Dep't 1961). Local Law 152 is not a law enacted by the New York
state
legislature, but rather is a local enactment by the City Council. Plaintiffs thus have not stated a
cause
of action for any violation of the New York State Constitution, Article III, $15, This
failure is exacerbated by the fact that even if this constitutional provision did apply, the judicial
analysis of the provision would be identical to the analysis of the other Single Subject Rule
above,
Consequently, the court should grant summary judgment to Defendants dismissing Plaintiffs'
claims with respect to the New York State Constitution, Article III, $ 15 as a matter of law.
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CONCLUSION
Dated:
ZACHARY A. CARTER
Corporation Counsel of the
City of New York
Attorney for Defendants
100 Church Street, Room 5-167
New York, New York 10007
(2t2) 3s6-260s
By:
$:l'--*e
SHERRILL KURLAND
Assistant Corporation Counsel
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