Matter of Belkebir v New York City Dept. of Parks & Recreation

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Matter of Belkebir v New York City Dept. of Parks & Recreation 2013 NY Slip Op 30550(U) March 20, 2013 Supreme Court, New York County Docket Number: 103796/12 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY lorsls PRESENT: PART Justlce - _c; INDEX NO. - vs. NYC DEPARTMENT OF PARKS SEQUENCE NUMBER : 001 ARTICLE 78 MOTION DATE MOTION SEQ. NO. ___ ._ - _ _ - _ - . - ---- - - - The following papem, numbered 1 to ,were read on this motion t@ o Notice of MotJonlOrdw to Answering Affldavfk? ExhiblG - ,!/r//3 -Affldavits -Exhiblk ReplyingAMdavik kb - 7% P hi a a . 'f d I No(#). 1-1 2 INO(8). INO(8). L 1 ' Upon the foregoing papers, it is ordered that this motion is UNFILED JUDGMENT This Judgmenthas not been entered by the County Clerk and notice of entry cannot be served based hermn. To obtain entry, counsel or authorized representative mud appear in person at the Judgment Clerk's Desk (Room I416). ,J.S,C. ..................................................................... 2. CHECK AS APPROPRIATE: .............. ~ O T I O N 0 GRANTED IS: 0DENIED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1. CHECK ONE: 0DO NOT POST D NON-FINAL DISPOSITION 0GRANTED IN PART 0OTHER 3 SUBMIT ORDER FlDUCl4RY APPOINTMENT REFERENCE [* 2] RABAH BELKEBIR, . , 5 Petitioner, ' 1 -against- 4 Index No. 103796/12 Decision. Order. en Law and Rules. Petitioner seeks annulrneni of a final determination by the New York City. Environmental Control Board. That determination reversed the administrative law judge's i . recommended decision and order dismissing a'violation issued to Petitioner by the New York Ct iy ,, Department of Parks and Recreation (DPR or)Agency). Respondent opposes the petition.' For the reasons set forth below, the petition is granted, , b 6 . I, Petitioner Rabah Belkebir is a food vendor, who is also a veteran with service-related iy disabilities. He has a mobile food vendor license issued by the New York Ct Department of Health and sells hot dogs, pretzels, and beverages from a pushcart. On October 10,201 1, while working Y in Central Park near the Metropolitan Museum of Art, Belkebir received a notice of violation for I I 'Respondent points out that the pro se petitioner erroneously cited the DPR as respondent, while the determination before this Court wad issued by the New York City Environmental Control Board (ECB). Accordingly, the ECB prepared the verification in answering the petition. [* 3] refusing to move his pushcart. The DPR officer cited Belkebir under Section 1 -03(c)( 1) of Title 56 of the Rules of the Ct of New York, which.prohibits a person f o failing to comply with the iy rm I 1 lawful direction or command of an officer. n oficer based the directive to move on New York e 1 I>I General Business Law Section 3S-a, which, y n g other things, limits the amount of space that a I ! . specialized vending licensee can take up at dgiven location and limits the number of specialized vending licensees in particular areas.2 ,, ! I , Petitioner challenged the violation, and a hearing was held before an administrative law judge with the Office of Administrative Trials and Hearings on December 6, 201 1. At the hearing, DPR officers appeared, representing the Agency. Mr. Belkebir was represented by Daniel P Rossi, who is not an attorney but who is also a fomer member of the armed services with serviceI related disabilities and who has separately filed an Article 78 petition relating to Section 35-a violations. Sergeant Asha Hri of the DPR testified that the violation was issued because General ars 1 ! I Business Law Section 35-a (Section 35-a) does not specify food, and, therefore, she contended that 1 its language applies to all vending, In suphort of his challenge to the violation, Belkebir s j I! representative argued that Section 35-a does not apply to food vendors. The administrative law judge determined that Section 35-a did not apply to food vendors. Construing the phrase hawk, peddle, vend and sell goods, wares, merchandise or solicit trade, under Section 35-a(l)(a), the administrative law judge found that language referred to 2Specializedvending licensees are veterans with service-related disabilities who have been licensed by DCA to hawk, peddle, vend and sell goods, wares or merchandise or solicit trade. Gen. Bus. Law 9 35-a(l)(a). * [* 4] general, non-food, vending. He noted that food vending licenses are issued by the New York Ct iy Department of Health and Mental Hygiene (DHMH). Nor is there anything in Section 35-a relating to the DHMH. The administrative law judge noted, in contrast, that general vending licenses are . issued by the Department of Consumer Affairs (DCA), Since he concluded that General Business , Law Section 35-a did not apply to food vendors, he deemed the notices of violation unlawful. ii The Agency appealed the administrative law judge s determinationto the New York City Environmental Control Board (Board), n e Board reversed, reinstated the notices of violation and imposed a fine of $250.00. In reaching its conclusion the Board found that General Business Law Section 3 5 4 applied to food vendors. It ioted that another owner of a food vending pushcart, Elizabeth Rossi, had previously stipulated to using her cart in accordance with all of the placement restrictions set forth in Section 35-a in exchange for discontinuing an earlier Article 78 petition that she had filed pro se against the DHMH and DCA. In reversing, the Board further construed the word goods, which appears within the phrase, goods, wares or merchandise under the statute, a9 defined in the dictionary to include food products such as baked goods. The Board noted by ! comparison that Article 2 of the Uniform C o h e r c i a l Code has been construed to include food products such as potatoes and vinegar within +e ambit of contracts for goods. Finding that Section 35-a did apply to food vendors, the Board went on to find that the statute s priority restrictions limiting the number of vendors and restrictions relating to the size of vending units were violated. Belkebir now petitions to annul that determination. 4 7 In an Article 78 proceeding, a court reviews an administrative action to determine -3- [* 5] whether an agency s decision violates lawful procedures, is arbitrary or capricious, or is affected by an error of law, u, re Pel1 v. Board of Educ., 34 N.Y.2d 222,231 (1974); Roberts v. Gavin, 96 /I A.D.3d 669, 671 (1st Dep t 2012). Where the issue is limited to pure statutory interpretation, a , 3, court is not required to defer to an agency but r$ther should considerthe plain language of the statute. t u m u e v. Kellv,95 A.D.3d 563,564 (1st Dep t 2012). ~ The New York State legislature has long recognized the plight of war veterans in creating protective legislation. More than 100 years ago the General Business Law Section 32 first authorized veterans to have the right to hawk, peddle, vend and sell goods, wares or merchandise. Kaswan v. Anontp, 142 Misc.2d 298, 300 (Sup. Ct. N.Y. County 1989). That protection was I expanded in the enactment +of Section 35 of the General Business Law, which singled out disabled I veterans for even greater protection. &g, g&, Kaswan v. Aponte,160 A.D.2d 324 (1st Dep t 1990) (Section 35 entitles disabled veterans as a special class to peddle goods on city streets). By 1998, however, the New York state legislature determined that certain restrictions on those rights were needed. It enacted General Business Law Section 35-a, which authorizes the local licensing authority in cities having a population of at least one million to create specialized vending licenses to honorably discharged members of the armed forces of the United States who are physically disabled as aresult of injuries received while in the service to hawk, peddle, vend and sell I goods, wares or merchandise. These specialized vending licenses (SVLs), in turn, are regulated by the further subsections of Section 35-a. : -4- [* 6] In contrast, Title 17 of the New York Administrative Code regu1ate.s health. Among other things it regulates the Department of Health and Mental Hygiene and addresses licenses and permits issued by that department, Subchapter two of Title 17 is dedicated to food vendors, and L within that subchapter a food vendor is definedb one who hawks, peddles, sells or offers food for sale at retail in any public space. N.Y.C. Admin. Code 0 17-306. Subchapter two regulates licensees operations, including but not limited to restrictions on the placement and locations of vending units. Q 17-3 15; t 1. .I While the administrative tribunals in this case looked to extrinsic sources such as case I I 8 1 law, dictionary definitions, and administrative rulings to construe Section 35-a, this C u t has :, or ! i , ,I examined the language of Section 35-a and finds that the New York state legislature did reference ~ i ! I food vendors. Subsection 35-a( 1 1) provides the following: . . Where the city of New York authorizis general vending, through permit, auction, lottery or any other method subsequent tothe effective date of this subdivision other than temporary general vendor licenses issued in connection with street fairs on any block face, street or avenue specifiedin a paragraph (a) of subdivisioh seven or subdivision seven-a of this section, the prohibitions and restrictions in this section on vending by specialized vending licenskes will not apply on such block face, street or avenue and the number of specialized vending licensees authorized per block face, street or avenue will, at a minimum, be equal to the greatest number of any single type of other vendor including but not limited tofood, general, or vendors of written matter and others similarly situated an such bfock face, street or avenue. ! I I I I i I I ! i Gen. Bus. Law 5 35-a( 11) (emphasis added). AS Subsection 11 of Section 35-a shows, the legislature was aware of and distinguished food vendors from specialized vending licensees in crafting the statute. t -I I, Additionally the regulations goierning specialized vending licensees m e r show that -5- [* 7] .. , the provisions of Section 35-a have been interpreted to apply to non-food vending only. The Department of Consumer Affairs, which is charged with issuing general vendor licenses, explicitly excludes food vending from the purview of general vendor licenses. N.Y.C. Adrnin. Code 0 20li 452(b) (definition of general vendor shall not include a food vendor regulated by DHMH). Title Six of the Regulations of the City of New York sets forth the Department of Consumer Affairs s regulations. Chapter 2 of that title addresses licenses. Subchapter AA in turn addresses general vendors and within that subchapter at Section 17-315 appear the regulations for specialized vending licensees. ! Based on this Court s review of both the statutory and regulatory schemes implicated in this case, I find that the Board s interpretati n that the state legislature intended to include food vendors within the category of SVLs under STction 35-a of the New York General Business Law is erroneous. This Court finds as a matter of law that the law\ does not apply to food vendors, and, therefore, the Agency directives to move were unlawfu1. Accordingly, it is ORDERED and ADJUDGED,that the petition is granted, and the proceeding is remanded for further proceedings consistent with this decision. Dated: March ,2013 ! ENTER: UNFILED JUDGMENT This judgment has not been eotered by the CountyClerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authoriw representative must appear in person at the Judgment Clerk .Desk (Room 1416). -8-

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