Matter of Broadway Barbecue Corp. v City of New York

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[*1] Matter of Broadway Barbecue Corp. v City of New York 2018 NY Slip Op 51841(U) Decided on December 14, 2018 Supreme Court, Queens County Modica, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2018
Supreme Court, Queens County

In the Matter of the Application of Broadway Barbecue Corp., d/b/a The Strand Smoke House, And Athena and Evelina Corp., Petitioner, for a judgment under Article 78 of the Civil Practice Law and Rules for Judicial Review of Determination

against

City of New York and New York City Department of Health & Mental Hygiene, Respondent.



8311/2018



For Petitioners: Holihan & Associates, P.C., by Stephen Holihan, Esq., 135-24 Hillside Avenue, Jamaica, New York 11418

For Respondent: Zachary W. Carter, Esq., Corporation Counsel of the City of New York, by Sheryl Neufeld, Michelle Goldberg-Cahn, and Yungbi Jang, Esqs., 100 Church Street, New York, New York 10007
Salvatore J. Modica, J.

The proceeding concerns Bakeway, a café located at 25-21 Broadway, in Astoria, County of Queens. Petitioner's counsel, however, inexplicably does not even mention Bakeway in the caption. Bakeway's owners and managers denied municipal inspectors access to inspect a portion of the café claiming it did not own the space to which the inspectors demanded access.

On the return date of the order to show cause, of December 3, 2018, counsel for the [*2]parties, Stephen Holihan, Esq., for petitioners, and by Yungbi Jang, Esq., for the municipal respondent, indicated their intent to rest on the aforementioned numbered papers, and they expressly declined, in response to this Court's invitation, to submit any further papers.

The petitioner, in its moving papers, provides a copy of the closure order by the Health Department. That order establishes that the subject café was closed based upon the refusal, on November 1, 2018, of Tom Vasilis, the owner of this café, to allow the Health Department to conduct an inspection of his food service establishment. In its moving papers, the petitioner notes that, in a stipulation, entered on consent with the Health Department on April 22, 2014, Vasilis agreed that "if there is another incident at any establishment owned by Mr. Vasilis, in which a Department Inspector is obstructed from conducting an inspection, then both that obstructing establishment and any establishment that shares common equipment or facilities shall be ordered closed and permits shall be suspended."

Protection of the public was the goal of the United States Congress in the early twentieth century. Congress approved of the original Food and Drugs Act on June 30, 1906, and the law was signed by President Theodore Roosevelt. It prohibited interstate commerce in misbranded and adulterated foods, drinks and drugs. The Meat Inspection Act was passed that same day. Shocking disclosures of unsanitary conditions in meat-packing plants and the use of poisonous preservatives and dyes in foods were some of the leading factors leading to the enactment of the aforementioned federal laws. [FN1] The United States Supreme Court, in Hipolite Egg Co. v. United States, 220 U.S. 45 (1911), unanimously upheld the Congressional enactments.[FN2]

In New York, the public is given protection by statute. Public Health Law section 1350(1) provides: "The commissioner shall have full power and authority to inspect and supervise all public places in this state in which food is prepared, sold or served."

As stated by one New York court: "Certainly, a restaurant which serves food to the general public is involved in an enterprise of public interest." Steak Bit of Westbury, Inc. v. Newsday, Inc., 70 Misc 2d 437, 441 (Sup. Ct. Nassau County 1972). "Public interest is deeply involved in the food industry. Undetected violations could adversely affect public health and well-being." United States v. Gel Spice Co., 601 F. Supp. 1214, 1229 (E.D.NY 1985), quoted with approval in Players, Inc. v. City of New York, 371 F. Supp. 2d 522 (S.D.NY 2005). See also, National Rest. Ass'n v. New York City Dep't of Health & Mental Hygiene, 148 AD3d 169 (1st Dept. 2017) (rule promulgated by city board of health, which required certain restaurants to provide factual information on health hazards associated with excess consumption of sodium, did not impermissibly intrude on legislative function; instruction about health risks was least [*3]intrusive way to influence citizens' decision-making, and rule did not require board to make value judgments entailing difficult and complex choices between broad policy goals).

In the present proceeding, the petitioner has not indicated whether or not it has taken the proper steps to reopen the restaurant as provided for in the Health Department closure order. The petitioner has not even provided assurance to this Court that it will comply with an inspection by the Department of Health, which clearly has jurisdiction over the



petitioner.

As the Court of Appeals has held "[t]hose who wish to challenge agency determinations under article 78 may not do so until they have exhausted their administrative remedies, but once this point has been reached, they must act quickly—within four months—or their claims will be time-barred." Walton v. New York State Dep't of Correctional Services, 8 NY3d 186, 195 (2007). The Court of Appeals also stressed that "[a]n administrative determination becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. First, the agency must have reached a definitive position on the issue that inflicts actual concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party." Id. at 194.

In this case, there has been neither a final determination nor an exhaustion of administrative remedies. Here, although the suspension order inflicts actual concrete injury, the petitioner has not established the unavailability of steps to ameliorate the current suspension order. Accordingly, the petitioner's motion is denied based on its failure to exhaust administrative remedies.

To the extent that this case can be reviewed, the Court finds that the Department of Health acted properly in this case. Based on the failure of the petitioner, through its owner, to allow access to the Health Department, in order to conduct an inspection as to the sanitary and safety conditions of the subject restaurant, an inference arises that the petitioner was in violation of the certain provisions of the Health Code and Sanitary Code. In addition, the petitioner respondent was placed on express notice in 2014, as to the consequences of not allowing access by the Health Department's into its restaurant.

Just like in the federal scheme of protections, the goal of the New York Legislature and the New York City Council in the regular inspection of restaurants and other eating establishments is to protect the public's health. See, Public Health Law section 1350(1), quoted above; New York City Administrative Code § 17-1503 (1) ("On January 1, 2015, and every year thereafter on January first, the advisory board shall submit a report to the mayor, the commissioner, and the speaker of the council. Such report shall include, but not be limited to: 1. an assessment of the restaurant inspection program and its effect on the restaurant industry, public health and food safety, including information on the top ten most commonly cited violations in the previous year and any change in the incidences of illness from food borne pathogens.").

To accomplish this important goal, it is imperative that inspectors gain access to those enterprises in the food and dining industry. See, Matter of Lacatena, 173 AD2d 952, 953 (3rd Dept. 1991) ("For an administrative inspection warrant to issue for health or safety inspections, all that is required is a showing of probable cause to conduct an inspection, not probable cause to [*4]believe that either a crime or regulatory violation has occurred. . . . In our view, given the important governmental interest in the public health and the antagonistic reception of petitioner's inspector by Heights' employees, probable cause existed to justify the issuance of the inspection warrant."); R & L Distributors, Inc. v. Wickham, 36 AD2d 884, 885 (3rd Dept.) ("In the instant case the primary governmental interest at stake is to protect the public by preventing unwholesome food from being sold."), appeal dismissed sub nom. R & L Distributors, Inc. v. Comm'r of Agric. & Markets of State of New York, 29 NY2d 875 (1971).

The Court finds that, in this case, the respondent was not required to seek an administrative inspection warrant in light of the aforementioned stipulation that the petitioner entered on consent with the Health Department on April 22, 2014. Pursuant to that stipulation, the petitioner expressly agreed to closure in the event that it denied the respondent access to the subject premises. For this reason and the reasons outlined above, the Court concludes that the petitioner was not deprived of due process of law.

The Court, therefore, finds that the emergency closure was neither arbitrary, capricious, nor an abuse of discretion. In sum, given the refusal to allow an inspector access to conduct an inspection of its premises, together with the 2014 stipulation on consent, "there was sufficient basis for the [respondent's] finding [under the New York City Health Code] that the public health, safety, or welfare imperatively required the emergency action of summary suspension of the petitioner's license pending a hearing." See, Marohn v Van Lindt, 100 AD2d 606 (2nd Dept. 1984). Accordingly, the pre-hearing summary closure order was properly made.

The motion, brought by Order to Show Cause, pursuant to CPLR Article 78, to vacate an order by the New York City Department of Health [Health Department], issued on November 1, 2018, suspending the petitioner's license to operate as a restaurant, for its failure to allow an inspector access to its restaurant is denied in all respects. The petitioner's motion, brought by Order to Show Cause, pursuant to CPLR Article 78, to vacate an order by the New York City Department of Health [Health Department], issued on November 1, 2018, which suspended petitioners' license to operate as a restaurant, is thus denied in all respects.

The Court grants the cross motion to dismiss the Article 78 proceeding for the reasons cogently stated by Loraine B. Peone, Esq., the Assistant General Counsel of the New York City Department of Health & Mental Hygiene and the City's accompanying memorandum of law, especially on petitioner's failure to exhaust administrative remedies.

In short, the petitioners' motion by Order to Show Cause is denied, the respondent's cross motion to dismiss is granted, and the petition and the proceeding are dismissed.

The foregoing constitutes the decision, order, and opinion of the Court.



Dated: December 14, 2018

Jamaica, New York

Honorable Salvatore J. Modica

J.S.C. Footnotes

Footnote 1: Renowned author and social reformer Upton Sinclair's novel "The Jungle" (published in 1905) is often identified as one of the documents describing the unsanitary conditions that led to the Congressional action in 1906.

Footnote 2: From the beginnings of civilization, people have been concerned about the quality and safety of foods and medicines. In 1202, King John of England proclaimed the first English food law, the Assize of Bread, prohibiting the adulteration of bread with such ingredients as ground peas or beans. Regulation of food in the United States dates from early colonial times. In Massachusetts and Virginia, in 1641, bakers were required to place their identifying mark on their bread.