New York City Health Code
Introductory Notes
The Department of Health
The authorization for the Department of Health, the head of which is the Commissioner of Health, is contained in Chapter 22 of the New York City Charter § 551. Chapter 22 is set forth in full in the Appendix. The Commissioner has all the powers and duties vested in him or in the Department by Chapter 22 or otherwise, except those vested by law in the Board of Health and the Chief Medical Examiner (Chapter 22 § 555(a)). The Department has the jurisdiction, except as otherwise provided by law, to "regulate all matters affecting health in the City of New York and to perform all those functions and operations performed by the City that relate to the health of the people of the City . . ." (Chapter 22 § 556). This broad responsibility includes, but is not limited to, enforcement of "all provisions of law applicable in the area under the jurisdiction of the Department for the preservation of human life, for the care, promotion and protection of health and relative to the necessary health supervision of the purity and wholesomeness of the water supply and the sources thereof ..." (Chapter 22 § 556(a)). The authority of the Commissioner of Health extends to all functions necessary to carry out the powers and duties of the Department of Health, including those relating to enforcement of the Health Code. Although the Department of Health is the City agency with primary responsibility in the field of public health, it is not the only agency in New York City with duties relating to health. The Department of Environmental Protection has jurisdiction over all City functions and operations relating to the cleanliness of the streets, the disposal of wastes, the provision of a pure, wholesome and adequate supply of water, and the prevention of air and water pollution and of noise disturbance. Other City agencies involved with health are as follows: The Police Department is the general law enforcement agency and also enforces laws pertaining to health, including this Code, the Human Resources Administration has an interest in child health, among other concerns, the Department of Housing Preservation and Development with the safety and sanitary conditions of housing, Fire Department with fire hazards, the Department of Transportation with vehicular hazards, and the Department of Parks and Recreation with recreational facilities and the parks. The list is by no means complete nor is it limited solely to City agencies. Thus, the State Health, Environmental Conservation, Labor, and Agriculture and Markets Departments, the United States Public Health Service, the Environmental Protection Agency, the Nuclear Regulatory Commission, and other agencies, have jurisdiction over special activities affecting public health. Since many of these bodies have their own codes or regulations, the avoidance of administrative and legal duplication or of inconsistency with the law and activities of other government agencies was a major consideration in the most recent revision of the New York City Health Code.
The Board of Health
The Charter provides for a Board of Health within the Department of Health, consisting of the chairman and four other members. The Chairman, who, is the Commissioner of Health, must be a physician or holder of a graduate degree in public health or business administration or public administration and must have had eight years' experience in public health administration or public health teaching. The four other members of the Board, at least two of whom must be physicians with ten years' experience in clinical medicine, public health administration or public health teaching, are appointed by the Mayor for eight-year terms, with vacancies to be filled for the unexpired term. Charter § 553.
The Health Code
Section 558 of the New York City Charter is the source of the power of the Board of Health in regard to the promulgation of the Health Code. Subdivision (b) of this section authorizes the Board of Health to "add to and alter, amend or repeal any part of the health code, and may therein publish additional provisions for security of life and health in the city and confer additional powers on the department not inconsistent with the constitution, laws of this state or this charter, and may provide for the enforcement of the health code or any orders made by the commissioner or the board of health, by such fines, penalties, forfeitures and imprisonment as may be prescribed therein or otherwise by law." The Board may include in the Code "all matters and subjects to which the power and authority of the department extends." Charter § 558(c). Subdivision (d) of § 558 provides that "any violation of the health code shall be treated and punished as a misdemeanor" and further authorizes civil actions for the recovery of pecuniary penalties for violations of the Code. Subdivision (e) provides that amendments do not take effect until a copy certified by the secretary of the Board is filed with the City Clerk. Upon filing, an amendment is to be published forthwith in The City Record. Note that the amendment takes effect when filed, not when published. Because the authority of the Board of Health in enacting a Health Code is so broadly defined, it has been subject to attack as an improper delegation of legislative authority. In New York, this rule against delegation of legislative authority is based on the provisions of Article 3, Section 1 of the State Constitution, which have been part of the Constitution as far back as 1777, stating that the legislative power shall be vested in the Senate and Assembly. From the very earliest time of the Code (known before the 1959 recodification as the Sanitary Code), however, this delegation of authority to the Board of Health has been upheld in the courts as constitutionally valid. Metropolitan Board of Health v. Heister, 37 N.Y. 661 (1868); People ex rel. Cox v. Justices of the Court of Special Sessions, 7 Hun 214 (Sup. Ct. 1876). Following these cases, the courts concluded that the constitutionality of this delegation to the Board of Health was no longer in question. Polinsky v. People, 11 Hun 390 (Sup. Ct. 1877), aff'd, 73 N.Y. 65 (1878); People ex rel. Lieberman v. Vandecarr, 175 N.Y. 440, 67 N.E. 913 (1903), aff'd on other grounds, 199 U.S. 552, 26 S. Ct. 144, 50 L. Ed. 305 (1905). More recently, in a number of cases, a new attempt was made to revive this issue of delegation of legislative authority on slightly different grounds. The argument was advanced that a section of the Health Code (S.C. § 148 Reg. 27) offended Article 3, § 1 of the State Constitution because the Legislature improperly delegated to the Board of Health the power to define certain acts to be criminal offenses. Holding that the Board of Health does not define crimes because the law providing for sanctions is found in the authorizing section itself, § 558(d) of the Charter (now § 1706(4)), and in § 1740 of the Penal Law (now § 12-b of the Public Health Law), the Court relied on the earlier cases and referred to the Health Code as a "body of administrative provisions sanctioned by the time honored exception to the principle that there is to be no transfer of the authority of the Legislature." People v. Blanchard, 288 N.Y. 145, 42 N.E. 2d 7 (1942). The case was followed in Matter of Conlon v. Marshall, 185 Misc. 638, 641-42, 59 N.Y.S.2d 52, 55 (Sup. Ct. Kings Cty. 1945), aff'd mem., 271 App. Div. 972, 68 N.Y.S. 2d 438 (2d Dept., 1947), and, in regard to the delegation issue, Quaker Oats Co. v. City of New York, and Hill Packing Co. v. City of New York, 295 N.Y. 527, 539, 68 N.E.2d 593, 598 (1946), aff'd mem., 33 U.S. 787, 67 S. Ct. 1314, 91 L. Ed. 1817 (1947). Recent cases have continued to uphold the delegation doctrine. Grossman v. Baumgartner, 17 N.Y.2d 345, 271 N.Y.S. 2d 195, 218 N.E.2d 259 (1966). See also Paduano v. City of New York, 17 N.Y.2d 875, 271 N.Y.S.2d 305, 218 N.E.2d 339 (1966), cert. denied, 385 U.S. 1026, 87 S. Ct. 754, 17 L. Ed. 674 (1967); Metropolitan Ass'n of Private Day Schools v. Baumgartner, 41 Misc. 2d 560,245 N.Y.S.2d 733 (Sup. Ct. Kings Cty. 1963). There is, however, an exception to an otherwise universal judicial acceptance of the delegation doctrine as it relates to the New York City Health Code: When the Code conflicts with existing federal or state law, it must yield to such law. Thus, it was held in Ahlers v. City of New York, 59 Misc. 2d 634, 300 N.Y.S.2d 428 (Sup. Ct. N.Y. Cty. 1969), that Health Code provisions requiring the inspection of certain egg products in interstate commerce by a federal inspection service, when inspection by that service is deemed by federal law to be voluntary, intrude on an area of the law already preempted by federal law and which federal law has chosen not to regulate. Similarly, it was held in Meat Trade Institute v. McLaughlin, 37 App. Div. 2d 456, 326 N.Y.S.2d 683 (1st Dept., 1971), that meat-labelling provisions of the Health Code could not be upheld when such provisions required labelling on products in a manner different from and in addition to requirements of previously declared federal and state laws. The Appellate Division concluded that federal statutes had already preempted the field as far as interstate commerce was concerned, in light of a law giving the federal government exclusive jurisdiction of the labelling requirements in federally inspected meat-packing plants. Similarly, state law had preempted the field in relation to intrastate commerce by means of state regulations requiring prior approval before a label might be used on any product prepared under the New York State meat inspection system.
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