INDEX NO.

152723/2014

FILED: NEW YORK COUNTY CLERK 01/15/2015 05:25 PM

NYSCEF DOC. NO. 55

RECEIVED NYSCEF: 01/15/2015

Index No. 152723/14

Hon Frank P. Nervo, J.S.C.
Motion Sequence: 001
__________________________________________________________________
__________________________________________________________________

Supreme Court of the State of New York

New York County
_____________________
NYC C.L.A.S.H., INC. and RUSSELL WISHTART, Individually,
Plaintiffs,
-againstCITY OF NEW YORK, THE NEW YORK CITY COUNCIL and
MELISSA MARK-VIVERITO, in her official capacity as Speaker of
THE NEW YORK CITY COUNCIL,
Defendants.
__________________________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT PURSUANT TO CPLR 3212
__________________________________________________________________
JOSHPE LAW GROUP LLP
Attorneys for Plaintiffs
1040 Avenue of the Americas, Suite 1101
New York, NY 10018
Tel: (646) 820-6701
Fax: (212) 313-9478
E-mail: epaltzik@joshpelaw.com
Dated: January 13, 2015
EDWARD A. PALTZIK

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................ -iiPRELIMINARY STATEMENT ...................................................................................... -1STATEMENT OF FACTS ............................................................................................... -3ARGUMENT:
THE COURT SHOULD GRANT PLAINTIFFS MOTION FOR SUMMARY
JUDGMENT BECAUSE AS STIPULATED BY THE PARTIES, THERE ARE
NO TRIABLE ISSUES OF MATERIAL FACT AND PLAINTIFFS ARE
ENTITLED TO JUDGMENT AS A MATTER OF LAW BECAUSE THE
DEFENDANT VIOLATED NEW YORK STATES ONE-SUBJECT RULE
WHEN IT ENACTED LOCAL LAW 152 ..................................................................... -11A. Defendants violated New York States One Subject Rule when they enacted Local Law
152 because the subject of the SFAA/CIAA (N.Y.C. Admin. Code Title 17, Chapter 5
17-501 to 17-514) is the protection of the public against harmful exposure to ETS, and
Local Law 152 impermissibly adds E-Cigs, a distinct second subject, to the SFAA/CIAA
......................................................................................................................................... -12i. A Local Law cannot include more than one subject because the New York State
Constitution, the New York Municipal Home Rule Law, and the New York City Charter
all prohibit Local Laws from encompassing more than one subject
......................................................................................................................................... -13ii. The SFAA/CIAA (N.Y.C. Admin. Code Title 17, Chapter 5 17-501 to 17-514), as
amended by Local Law 152, is a local law because it was originally enacted as such and
only touches a portion of the territory of the State and its people
......................................................................................................................................... -14iii. Defendants enactment of Local Law 152 impermissibly adds a second subject to the
SFAA, N.Y.C. Admin. Code 17-501 to 17-514, which is but one Local Law, because
the new sections added by Local Law 152 now prohibit electronic cigarettes and smoking
which are two distinct subjects
......................................................................................................................................... -15CONCLUSION ............................................................................................................... -17-

TABLE OF AUTHORITIES
CASES
Alvarez v. Prospect Hosp.,
68 N.Y.2d 320 [1986] ..................................................................................................... -11Bogart v. Westchester County,
185 Misc. 561 [Sup. Ct., Westchester County 1945]...................................................... -12Burke v. Kern,
287 N.Y. 203 [1941] ....................................................................................................... -12Economic Power & Constr. Co. v. City of Buffalo,
195 N.Y. 292 [1909] ....................................................................................................... -13Fresh Meadow Country Club, Inc. v. Lake Success,
158 A.D.2d 58 [2nd Dept. 1990] .................................................................................... -11Kerrigan v. Force,
68 N.Y. 381 [1877] ......................................................................................................... -14Mitrione v. City of Glens Falls,
14 A.D.2d 716 [3rd Dept. 1961] ...................................................................................... -14Schuyler v. S. Mall Constructors,
32 A.D.2d 454 [3rd Dept. 1969] ..................................................................................... -14Sillman v. Twentieth Century-Fox Film Corp.,
3 N.Y.2d 395 [1957] ....................................................................................................... -11Zuckerman v. City of New York,
49 N.Y.2d 557 [1980] ..................................................................................................... -11STATUTES
New York City Administrative Code
N.Y.C. Admin. Code. 17-503 ...................................................................................... -12

New York Civil Practice Law & Rules (CPLR)

CPLR 3212(b) .............................................................................................................. -11ii

New York Municipal Home Rule Law (MHR)

MHR, Article 3, 20(3).................................................................................................. -13OTHER AUTHORITY
New York State Constitution
Article III, 15 ............................................................................................................... -13New York City Charter
New York City Charter, Ch 2, 32 ................................................................................ -13-

iii

PRELIMINARY STATEMENT
In this action for declaratory judgment, Plaintiffs NYC C.L.A.S.H. (CLASH) and
Russell Wishtart (Wishtart), seek a judicial declaration that Defendants enactment and
enforcement of Local Law 152, Titled: A Local Law to amend the administrative code of the
City of New York, in relation to the regulation of electronic cigarettes (Local Law 152), which
amends New York City Administrative Code (N.Y.C. Admin. Code) Title 17, Chapter 5
17-501 to 17-514 (Title 17 Chapter 5) is unconstitutional, ultra vires, and null and void.
Plaintiffs commenced this action by Summons and Complaint on March 25, 2014 and
Defendants answered on May 30, 2015. See Pleadings - Exhibit A attached to attorney
affirmation . As set forth herein, Defendants exceeded their legislative powers by adding a
second subject, (electronic cigarettes hereinafter referred to as E-Cigs or E-Cig) to Title 17
Chapter 5, in violation of the One Subject Rule of the New York State Constitution, Article III,
15, the New York Municipal Home Rule Law, Article 3, 20(3), and the New York City
Charter, ch. 2, 32.
In accordance with a Stipulation dated October 30, 2014, in which the parties agreed that
the issues in this case are solely legal and further agreed upon simultaneously filed summary
judgment motions (October 30, 2014 Stipulation attached to attorney affirmation as Exhibit B),
Plaintiffs now move for a for an Order pursuant to CPLR 3212, granting summary judgment in
favor of the Plaintiffs as to all of the relief requested in this declaratory judgment action, to wit:
(a) A declaratory judgment that Local Law 152 is unconstitutional, ultra vires, and null
and void, in that Local Law 152 adds a second subject (E-Cigs) to Title 17 Chapter 5 and
therefore violates the One Subject Rule contained in the New York State Constitution, Article
III, 15, the New York Municipal Home Rule Law, Article 3, 20(3), and the New York City
Charter, ch. 2, 32; and
1

(b) A declaratory judgment that Local Law 152 may not be implemented and is
unenforceable on the basis that Local Law 152 is unconstitutional, ultra vires, and null and void,
in that Local Law 152 violates the One Subject Rule; and
(c) A judgment permanently enjoining and restraining Defendants from implementing
and enforcing Local Law 152.

STATEMENT OF FACTS
In 1988, Defendant, The New York City Council (the City Council), enacted Local
Law 2 the Clean Indoor Air Act (the CIAA), which created a new Chapter 5 of Title 17 of
the N.Y.C. Admin. Code (Title 17 contains various chapters related to Health). The new
Chapter 5 (the CIAA) created 17-501 to 17-514 (Title 17 Chapter 5) most of which were
effective April 6, 1988. Together, the fourteen sections of Title 17 Chapter 5 constituted a single
local law subject to the requirements of the One Subject Rule. Except for 17-501, a bold-faced
Historical Note stating Section added L.L. 2/1988 2, preceded the other thirteen sections of
Title 17 Chapter 5, confirming that the fourteen sections of the CIAA collectively comprised a
single local law. A copy of the original CIAA is attached to the attorney affirmation as Exhibit
C.
17-501 of the CIAA, the Acts title section, read, Short Title. This chapter shall be
known and may be cited as the Clean Indoor Air Act, and the Legislative Findings
established the purpose of the CIAA. In the Note located beneath 17-501, the City Council
found:
the regulation and control of smoking in enclosed public places is a matter of vital
concern, affecting the public health, safety and welfare all New Yorkers Given the
current state of scientific evidence on the adverse health effects of second-hand smoke,
the Council, in enacting this chapter, seeks to accomplish two goals: (1) to protect the
public health and welfare by prohibiting smoking in certain public places except in
designated smoking areas and by regulating smoking in the workplace; and (2) to strike a
reasonable balance between persons who smoke and nonsmokers to breath smoke-free
air. Exhibit C at p. 1 (designated as p. 232 in original).
To achieve its goal of protecting the public from the harmful effects of second hand smoke, the
City Council enacted 17-503. This section designated the extent of the CIAAs smoking
prohibitions and read, in relevant part: 17-503 Prohibition of smoking in public places. a.
Smoking is prohibited in all enclosed areas within public places during the times in which the
3

public is invited or permitted . . . . Exhibit C at p. 4 (designated in original as p. 235).

According to the CIAAs title, the Legislative Findings, and the specific prohibitions in 17-503,
the only subject of the CIAA was public protection against the harmful effects of secondhand
smoke exposure (commonly referred to as environmental tobacco smoke, or ETS).
On January 10, 1995, then-Mayor Rudolph Giuliani signed into law Local Law 5, the
Smoke-Free Air Act of 1995 (SFAA), which amended the fourteen sections of Title 17
Chapter 5 and superseded the CIAA. A copy of Local Law 5 obtained from web.archive.org
(with page numbering added for ease of reference) is attached to the attorney affirmation as
Exhibit D.

Effective April 10, 1995, the SFAA, like its predecessor, was a single local law

comprised of fourteen (amended) sections. Thus, Title 17 Chapter 5 was now known as the
SFAA but remained a single local law. The amended 17-501 of Title 17 Chapter 5 now read,
Short Title. This chapter shall be known and may be cited as the Smoke-Free Air Act.
Exhibit D at p. 2. 17-503 remained unchanged. In Local Law 5s declaration of legislative
findings and intent, the City Council stated:
According to the United States Environmental Protection Agency (EPA), the health
risks attributable to environmental tobacco smoke (ETS) (also known as second-hand
smoke, passive smoke or involuntary smoke) are well established . . . . It is the Councils
intention that these additional restrictions will help protect children and nonsmoking
adults from the health hazards presented by exposure to ETS. Exhibit D at p. 1.
Under the SFAAs amended title, the unchanged statement of Prohibition in 17-503, and the
declaration of legislative findings and intent, the only subject of Title 17 Chapter 5 following the
SFAA amendments remained protection of the public against exposure to the harmful effects of
second-hand smoke.
In or about August, 2002, following then-Mayor Michael Bloombergs (Mayor
Bloomberg) August 12, 2002 announcement of his intent to expand the SFAA, the New York

City Department of Health and Mental Hygiene (the Health Department) released a public
bulletin entitled Answers to Common Objections to Smoke-Free Workplace Laws. A copy of
the Bulletin is attached to the attorney affirmation as Exhibit E. The bulletin, stated:
Why does New York City need a new smoke-free workplace law? . . . New York Citys
current smoke-free air workplace law assures that some, but not all, employees are safe
from the harmful chemicals that cause cancer and heart disease in second-hand smoke. A
new law is needed to extend this protection to all workers. [Emphasis in original].
Exhibit E at p. 1.
On October 10, 2002, the City Councils Committee on Health (the Health Committee)
held a hearing (the October 2002 Hearing) on Intro 256, a proposed bill to amend the SFAA.
At the October 2002 Hearing, Mayor Bloomberg testified in support of Intro 256. A copy of the
quoted testimony excerpted from the October 2002 Hearing, with quoted portions highlighted in
yellow, is attached to the attorney affirmation as Exhibit F. In articulating that the purpose and
subject of the bill was protecting the public from exposure to the harmful effects of second-hand
smoke, Mayor Bloomberg testified:
Enacting this bill, Intro 256, will not outlaw the right of an individual to smokeIf
someone wants to inhale smoke, directly or indirectly, that's their right. But Intro 256 will
protect thousands and thousands of New Yorkers from involuntary exposure to the
arsenic, formaldehyde and other deadly chemicals present in smoke-filled rooms. Intro
256 will ensure that no worker in our City will ever have to risk contracting cancer, or
heart disease, or lung disease, from exposure to others smoke, just to hold a jobIntro
256 is our opportunity to free thousands of workers in our City from such hazardous
conditions. It should be seen as the just and logical extension of protections against
secondhand smoke that already are in place in most public settings This bill, however,
is not designed to stop you from smoking. If you want to smoke, that's your right, and I
will defend that...The statistics are clear, you're hurting yourself very badly. But you
dont have the right to hurt others. Exhibit F.
On December 13, 2002, the Health Committee held another hearing (the December
2002 Hearing) on Intro 256. A copy of the quoted excerpts of testimony from the December
2002 Hearing are collectively attached to the attorney affirmation as Exhibit G with quoted

portions highlighted in yellow. Then-City Health Commissioner, Dr. Thomas Frieden

(Commissioner Frieden), offered testimony clarifying the purpose and subject of the bill:
The current legislation is somewhat complex, but the concept is simple no New York
City worker will have to risk cancer, heart disease or lung disease from secondhand
smoke just to hold a job. Exhibit G at p. 4 (designated in original as p. 22).
Then-Deputy Mayor for economic development Daniel L. Doctoroff similarly testified:
Remember, the prime objective of this legislation is to protect workers and their safety
by creating a healthy smoke-free environment. Exhibit G at p. 3 (designated in
original as p. 16).
On December 18, 2002, Defendant Council enacted Intro 256 as Local Law 47, the
Smoke Free Air Act of 2002 (File # Int 0256-2002, Enactment #: 2002/047, Title: A Local
Law to amend the administrative code of the City of New York, in relation to the prohibition of
smoking in public places and places of employment). A copy of the Local Law 47 Legislation
Details obtained from the City Councils website is attached to the attorney affirmation as
Exhibit H. A copy of Title 17 Chapter 5 (the SFAA) as amended by Local Law 47 is attached
to the attorney affirmation as Exhibit I.
Local Law 47 added additional smoking prohibitions to those already contained in the
1995 SFAA, but 17-501 and 17-503 remained unchanged, and in accordance with Mayor
Bloombergs comments, Local Law 47 did not change the subject of Title 17 Chapter 5:
protection of the public from the harmful effects of second-hand smoke exposure. Title 17
Chapter 5 remained a single local law. See Exhibit I at pp. 1 and 9.
In 2003, Plaintiff CLASH challenged the SFAA and the then-recently enacted Local Law
47 on various constitutional grounds in the Southern District of New York. Although CLASHs
challenge was ultimately dismissed, Hon. Victor Marrero, U.S.D.J., found that the SFAAs
purpose was protection of the public against exposure to the harmful effects of second-hand

smoke. CLASH v. City of New York, et al., 03 Civ. 5463 [quoted excerpts from Decision &
Order dated April 7, 2004], a copy of which is attached to the attorney affirmation as Exhibit J
with quoted portions and other relevant excerpts highlighted in yellow. Judge Marrero observed
that the Smoking Bans serve to protect an important governmental interest -- the health and
welfare of persons exposed to ETS in New York State.

03 Civ. 5463 at 43 (Exhibit

J)[emphasis added].
The City Council once again amended the SFAA in 2011 by enacting Local Law 11 (File
# Int 0332-2010, Enactment #: 2011/011, Title: A Local Law to amend the administrative code
of the City of New York, in relation to prohibiting smoking in pedestrian plazas and public parks
and to repeal subdivision b of section 17-513 of the administrative code of the city of New York,
in relation to requiring a study regarding the prevention of second-hand smoke circulation in
restaurants). Local Law 11 did not amend Title 17 Chapter 5 other than as suggested by the
title. A copy of the Local Law 11 Legislation Details obtained from the City Councils website
is attached to the attorney affirmation as Exhibit K.
On December 4, 2013 the Health Committee held a hearing (the December 2013
Hearing) to consider introduction of a Local Law (the E-Cig Bill - later enacted as Local Law
152) amending Title 17 Chapter 5. The E-Cig Bill was intended to prohibit E-Cig use in public
areas where smoking was already prohibited under the SFAA. At the December 2013 Hearing,
Audrey Silk (Silk), founder and chairperson of Plaintiff CLASH, testified in opposition to the
E-Cig Bill. A copy of Silks testimony at the December 2013 Hearing is attached to the attorney
affirmation as Exhibit L.
Earlier in the December 2013 Hearing, Councilman Vincent J. Gentile (Gentile)
adroitly identified that E-Cigs and second-hand smoke exposure are two entirely different

subjects during a quasi-cross examination of then-City Health Commissioner Thomas A. Farley

(Commissioner Farley), who conceded that E-Cigs would be defined separately from
second-hand smoke and further testified that he actually didnt know what is in E-Cig vapor:
GENTILE: Im just wondering if were here today based on your testimony trying to
fit a square peg into a round hole. Based on the definition that we have for the SmokeFree Air Act. And the fact that the Smoke-Free Air Act addressed the issue of
secondhand smoke. And you said in your testimony who [sic] has been pointed out in . . .
the presentation that there is no traditional secondhand smoke with . . . e-cigarettes. So
are you suggesting that we redefine the . . . Smoke-Free Air Act because the . . . basic
definition was to protect secondhand smoke.
FARLEY: No, its the . . . way that the bill is written as you noticed that electronic
cigarettes are listed separately. And the reason for us supporting this is as I put in my
testimony that while we dont really know whats . . . in the vapor there . . .
A copy of the Gentile/Farley quoted testimony from the December 2013 Hearing is
attached to the attorney affirmation as Exhibit M with quoted portions highlighted in
yellow. See Exhibit M at pp. 3-5 (designated in original as pp. 24-26).
The exchange continued with Commissioner Farley unable (or unwilling) to provide a
direct or responsive answer to Gentiles piercing question:
GENTILE: So it [the Bill] really has nothing to do with keeping the air smoke free?
FARLEY: I.didnt say that. I would say we dont know what is in these [E-Cigs]
because they change all the time and theres no reporting whats in there . . . . I dont
think thats the primary reason but I cannot guarantee that its safe. Exhibit M at p. 5
2 (designated in original as p. 26).
Commissioner Farley later stated, in another evasive response to inquiry by Gentile, that, . . .
the primary reason why we are supportive of this bill is not the exposure to the peoples
secondhand [ETS]. Exhibit M p. 6 (designated in original as p. 27).

This was not the first

time that Commissioner Farley offered testimony about when and under what circumstances the
SFAA applies. On May 2, 2013, Commissioner Farley testified before the Health Committee.
In response to a question about proposed legislation relating to permits for hookah
establishments, Commissioner Farley stated:
There are hookah bars. Those are places where people smoke through a water pipe a
product that is presented as not having tobacco in it, and the way that the current law is
8

written if you are smoking something that doesnt have tobacco in it, then the smoke free
air act doesnt apply. [Emphasis added]. A copy of Commissioner Farleys quoted
testimony from May 2, 2013 is attached to the attorney affirmation as Exhibit N with
quoted portions highlighted in yellow.
At around the time of the December 2013 Hearing, the E-Cig Bills sponsors made
statements to the media relating to the purpose of the E-Cig ban. For example, Councilman
Daniel Dromm, a sponsor of the Bill, stated:
As a co-sponsor of the bill, I am pleased the legislation banning indoor use of ecigarettes passed . . . It doesnt matter that e-cigarettes only produce vapors. Its pretend
smoking and its ridiculous. I want to end smoking, period. Allowing e-cigarettes to
remain unregulated would have only sent the wrong message. City council levies wideranging e-cigarette ban, Queens Chronicle, December 26, 2013 (attached to the attorney
affirmation as Exhibit O and available at:
http://www.qchron.com/editions/queenswide/city-council-levies-wide-ranging-ecigarette-ban/article_1f66c92f-778c-5923-81ea-906f24a9000f.html).
Councilman James Gennaro, another sponsor of the Bill, stated:
Electronic cigarettes are an unregulated product that threaten to turn back the important
gains we as a city have made in the last decade to de-normalize the act of smoking and to
maintain a clean air environment to live, work, and play . . . E-Cigs Banned in NYC
Public Spaces, The Gothamist, December 19, 2013 (attached to the attorney affirmation
as Exhibit P and available at: gothamist.com/2013/12/19/e-cigs likely to be banned in
publi.php).
On December 4, 2013 and December 18, 2013 the Health Committee released reports
comprising of its analysis of the E-Cig Bill and an overview of arguments for and against the
Bill. A copy of the December 4, 2013 Report is attached to the attorney affirmation as Exhibit
Q. A copy of the December 18, 2014 Report is attached to the attorney affirmation as Exhibit
R. Both reports stated that:
The bills intent is to prohibit use of electronic cigarettes in public places and places of
employment in order to facilitate the enforcement of the Citys Smoke-Free Air Act and
to protect youth from observing behaviors that could encourage smoking. Exhibit Q at
p. 11; Exhibit R at p. 11.

On December 18, 2013 the Health Committee voted in favor of the E-Cig Bill and on
December 19, 2013, the City Council approved the Bill. A copy of the Local Law 152
Legislation Details obtained from the City Councils website is attached to the attorney
affirmation as Exhibit S. On December 30, 2013, Mayor Bloomberg signed the E-Cig Bill into
law as Local Law 152 and the law went into effect April 29, 2014. Exhibit S at p. 17.
Following the Local Law 152 amendment, 17-501 remains unchanged. However 17503 now contains two subjects smoking (specifically, exposure to ETS) and electronic
cigarettes - and reads:
17-503 Prohibition of smoking and use of electronic cigarettes. a. Smoking [is],
and using electronic cigarettes, are prohibited in all enclosed areas within public
places. [Underlining in the original text of Local Law 152. Underlining represents
changes to the SFAA by the Local Law 152 amendment]. Exhibit S at p. 3.

10

ARGUMENT
THE COURT SHOULD GRANT PLAINTIFFS MOTION FOR SUMMARY
JUDGMENT BECAUSE AS STIPULATED BY THE PARTIES, THERE ARE NO
TRIABLE ISSUES OF MATERIAL FACT AND PLAINTIFFS ARE ENTITLED TO
JUDGMENT AS A MATTER OF LAW BECAUSE THE DEFENDANT VIOLATED
NEW YORK STATES ONE-SUBJECT RULE WHEN IT ENACTED LOCAL LAW 152
A summary judgment motion shall be granted where the cause of action . . . shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor
of [the moving party]. C.P.L.R. 3212(b). The standards regarding summary judgment
motions are familiar and fundamental [in that] the party moving for summary judgment bears the
initial burden of making a prima facie showing of its entitlement to judgment as a matter of law.
Fresh Meadow Country Club, Inc. v. Lake Success, 158 A.D.2d 58 [2nd Dept 1990]. The
proponent bears the initial burden of making the prima facie showing; however, where the
moving party establishes it is entitled to judgment as a matter of law, the burden shifts to the
opposing party to raise an issue of fact by submitting evidentiary proof in admissible form
sufficient to establish the existence of material issues of fact which require a trial. Alvarez v.
Prospect Hosp., 68 N.Y.2d 320, 324 [1986]. In order to obtain summary judgment, the moving
party must establish its cause of action sufficiently to warrant the court directing judgment as a
matter of law in its favor, and must do so by tender of evidentiary proof in admissible form.
Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]. To grant summary judgment it
must clearly appear that no material and triable issue of fact is presented. Sillman v. Twentieth
Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957].
It is important to note that Plaintiffs challenge to Local Law 152 is strictly legal and does
not in any way involve health or scientific issues. The Plaintiffs challenge to Local Law 152 is
based on Defendants violation of the One Subject Rule of the New York State Constitution,

11

Article III, 15, the New York Municipal Home Rule Law, Article 3, 20(3), and the New York
City Charter, ch. 2, 32 in adding a second subject (E-Cigs) to Title 17 Chapter 5. Defendants
addition of a second subject to Title 17 Chapter 5 is evidenced by the fact that 17-503 now
prohibits smoking and use of electronic cigarettes. N.Y.C. Admin. Code. 17-503 (emphasis
added). Defendants own textual revisions acknowledge that the use of electronic cigarettes is a
separate and distinct subject from smoking in general. Therefore, this motion and this case focus
only on the legal challenges to Defendants enactment of Local Law 152 in violation of the One
Subject rule and any attempt by the Defendants to inject scientific or health issues is a red
herring and a distraction from the actual issues in the case.
A. Defendants violated New York States One Subject Rule when they enacted Local
Law 152 because the subject of the SFAA/CIAA (N.Y.C. Admin. Code Title 17,
Chapter 5 17-501 to 17-514) is the protection of the public against harmful
exposure to ETS, and Local Law 152 impermissibly adds E-Cigs, a distinct second
subject, to the SFAA/CIAA
The purpose of the One 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.
Burke v. Kern, 287 N.Y. 203 [1941]. The chief test used in New York courts to analyze whether
the Legislature violated the One Subject Rule is to evaluate if the local laws subject matter is
limited to one subject. See id. at 213. A local law may embrace the carrying out of that subject
matter in objective ways, provided the objectives are naturally connected with the subject matter.
See id.; Bogart v. Westchester County, 185 Misc. 561 [Sup. Ct., Westchester County 1945]. This
test incorporates three key legal issues a court must analyze in order to decide whether the
Legislature violated the One Subject Rule. The legal issues before the Court are: 1) Whether a
Local Law can cover more than one subject; 2) Whether the law in question is in fact considered
a Local Law within the scope of Article III, 15 of the New York State Constitution; and 3)
12

Whether the local legislative body violated the One Subject Rule by impermissibly logrolling a
separate and distinct subject into a Local Law.
i.

A Local Law cannot include more than one subject because the New York
State Constitution, the New York Municipal Home Rule Law, and the New
York City Charter all prohibit Local Laws from encompassing more than
one subject

Article III, 15 of the New York State Constitution provides:

15. No private or local bill, which may be enacted by the legislature, shall
embrace more than one subject, and that shall be expressed in the title. (The
One Subject Rule).
The New York Municipal Home Rule Law (the MHR), Article 3, 20(3), codifies
the One Subject Rule, and states in pertinent part:
3. Every such local law shall embrace only one subject. The title shall briefly
refer to the subject matter.
The New York City Charter, ch. 2, 32, also contains the One Subject Rule vis--vis
the City Council:
32. Local laws. Except as otherwise provided by law, all legislative action by
the Council shall be by local law. The style of local law shall be Be it enacted by
the Council as follows. Every local law shall embrace only one subject. The title
shall briefly refer to the subject-matter.
In Economic Power & Constr. Co. v. City of Buffalo, 195 N.Y. 292 [1909], the New
York Court of Appeals held that the One Subject Rule, was adopted to check and prevent
certain evils of legislation, and should be enforced by courts whenever it has been substantially
violated. Id. The Court made clear that the purpose behind the One Subject Rules was to
prevent logrolling and require an announcement of the subject of every such bill to prevent
the fraudulent insertion of provisions upon subjects foreign to that indicated in the titleso that
neither the legislature nor the public would be deceived. See id. at 296. Indeed, [t]his is
perhaps best illustrated by the occasion for the creation of this constitutional provision [the One
13

Subject Rule], which was added 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. Mitrione v. City of Glens Falls, 14 A.D.2d 716, 717 [3rd
Dept. 1961].
The plain text of the New York State Constitution, the MHR, and the New York City
Charter, along with Court of Appeals interpretation and analysis of the One Subject Rule all
clearly indicate that a Local Law cannot embrace more than one subject matter and the title must
refer to the subject matter.
ii.

The SFAA/CIAA (N.Y.C. Admin. Code Title 17, Chapter 5 17-501 to 17514), as amended by Local Law 152, is a local law because it was originally
enacted as such and only touches a portion of the territory of the State and
its people

The word local as applied to a bill, act or law means such bill, act or law as touches
but a portion of the territory of the State or a part of its people, a fraction of the property of its
citizens. Schuyler v. S. Mall Constructors, 32 A.D.2d 454, 457 [3rd Dept. 1969]; Kerrigan v.
Force, 68 N. Y. 381, 383 [1877]. A local law is entirely confined in its operation to the
property and persons of a specified locality whereas a general law embraces persons or property
of the people of the State generally. Schuyler, 32 A.D.2d at 457.
In Schuyler, the court upheld a provision in the Deficiency Budget (L. 1969, ch. 1)
authorizing the Commissioner of General Services to negotiate a contract for general
construction of the Library and Museum superstructure located in Albany because it found the
law to be general and not local. Id. The court made very clear that Libraries and Museums are
for the benefit of all the people in the state, even if located in one particular county. See id.
Our case is substantially different from Schuyler because the Title 17 Chapter 5 the
SFAA, N.Y.C. Admin. Code Title 17, Chapter 5 17-501 to 17-514 - is but one local law,
14

having been enacted as Local Law 2 (the CIAA), then amended via Local Law 5 (the SFAA),
Local Law 47 and Local Law 11, and most recently amended via Local Law 152 (the E-Cig
amendment). All of this legislation was passed by the City Council, the legislative body for
Defendant New York City. The latest incarnation of the SFAA is thus one local law that touches
only the locality of New York City.
iii.

Defendants enactment of Local Law 152 impermissibly adds a second

subject to the SFAA, N.Y.C. Admin. Code 17-501 to 17-514, which is but
one Local Law, because the new sections added by Local Law 152 now
prohibit electronic cigarettes and smoking which are two distinct subjects

A local law may only encompass one subject and can only embrace the carrying out of
the subject matter in objective ways, provided the objective is naturally connected to the subject
matter. Burke, 287 N.Y. at 203.
In order to decipher a local laws subject matter, one must look to the purpose of the law.
It is elementary that a laws purpose can be deciphered through the legislative history. Local
Law 152, as fully explained above, amended the SFAA, which originally amended the CIAA.
The CIAA and all the local laws amending the CIAA, (Local Law 5, Local Law 47 and Local
Law 11), other than Local Law 152, had one distinct purpose behind enactment: protection of the
public against the dangers of second-hand smoke exposure (ETS). See Exhibits C through
N. All of the Legislative Findings and various City Council Hearings, prior to introduction of
Local Law 152, confirm beyond any reasonable doubt that the CIAA/SFAA Title 17 Chapter 5
- was meant to protect the people of New York City from harmful second-hand smoke from
cigarettes. See Exhibits C through N.
It is clear that even the City Council does not consider smoking cigarettes and using ECigs to be the same subject as evidenced by the fact that 17-503 textually includes two
prohibitions: smoking and use of electronic cigarettes. N.Y.C. Admin. Code. 17-503
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(emphasis added). [Underline in original, italics added]. See Exhibit S. It is obvious that the
City Council does not consider smoking cigarettes and use of E-Cigs the same subject or else it
would not use the connector word and to list another separate prohibition. If the City Council
truly believed that exposure to ETS on the one hand, and E-Cigs on the other hand, are one and
the same subject, the text of Title Section 17-503 would remain unchanged, as simply prohibiting
smoking, rather than smoking and use of E-Cigs, would be sufficient. The fact that Local Law
152 specifically delineates E-Cigs as a separate and distinct prohibition from smoking in general
is an unmistakable addition of a second subject to the SFAA and a concession that the two are
separate and distinct subjects, and that Local Law 152 violates the One Subject Rule.
Defendants may argue that this distinction is a question of fact because it is not yet fully
known what substances are contained in E-Cigs. However, that is a question beyond the scope
of this litigation. The question for this court remains solely legal because in enacting Local Law
152, the City Council specifically proscribed use of E-Cigs as a separate prohibition from
smoking in general.
Furthermore, the purpose behind prohibiting smoking in general is to protect the public
against exposure to the harmful effects of second-hand smoke, or ETS. See Exhibits C
through N. Nowhere in the Legislative Findings of Local Law 152 does the City Council cite
this purpose as a justification for the new E-Cig ban. See Exhibit S at p. 2. Instead, the City
Council utilizes several tangential justifications, such as, E-Cig may increase the social
acceptability of smoking, to rationalize Local Law 152. See Exhibit S at p. 2.

This

contradicts the assertions of the Health Department in the Smoke-Free Bulletin, Exhibit E, that
the SFAA is not intended to interfere with a persons choice to smoke. More importantly,

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justifications that have nothing to do with second-hand smoke exposure demonstrate that Local
Law 152 is an impermissible attempt to regulate public behavior by logrolling.
Defendants may argue that prohibiting use of E-Cigs is reasonably related to enforcement
of the prohibition against smoking in general. However, this argument casts too wide of a net
because the City Councils Legislative Findings show that E-Cig regulation is unrelated to the
subject of smoking in much the same way toy water guns are unrelated to authentic firearms.
Indeed, E-Cigs, as non-tobacco products, are, like the water pipes used at hookah bars - referred
to by Commissioner Farley in his May 2, 2013 testimony (See Exhibit N) unrelated to
authentic cigarettes, which produce second-hand smoke contemplated and covered by the SFAA.
Not only is the E-Cig ban unnecessarily overinclusive but it fails to address the actual issue at
hand, which is ultimately the safety of the public vis--vis exposure to ETS, the one true subject
of Title 17 Chapter 5 the SFAA, N.Y.C. Admin. Code 17-501 to 17-514.
CONCLUSION
For the foregoing reasons, Plaintiffs motion should be granted in its entirety and an
Order issued pursuant to CPLR 3212, granting summary judgment in favor of the Plaintiffs and
declaring Local Law 152 as unconstitutional and therefore null, void and unenforceable.
Dated: New York, NY
January 13, 2015
Respectfully submitted,
JOSHPE LAW GROUP LLP
Attorneys for Plaintiffs
By:__________________________
Edward A. Paltzik
1040 Avenue of the Americas
Suite 1101
New York, NY 10018
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Tel: 646-820-6701
Fax: 212-313-9478
E-mail:epaltzik@joshpelaw.com

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