BIG APPLE ICE CREAM INC v. CITY OF NEW YORK

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Supreme Court, Appellate Division, First Department, New York.

BIG APPLE ICE CREAM, INC., Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.

Decided: May 06, 2004

TOM, J.P., SAXE, LERNER, MARLOW, GONZALEZ, JJ. Tryon & Pascale, P.C., Garden City (Susan M. Pascale of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Edward F.X. Hart of counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered May 14, 2003, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Plaintiff claims that Local Laws 27 and 23, which regulate food vendor permits, violate the equal protection clause.   However, these ordinances are subject only to rational basis scrutiny (see e.g. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511;  Big Apple Food Vendors' Assn. v. City of New York, 228 A.D.2d 282, 644 N.Y.S.2d 216, lv. denied 89 N.Y.2d 807, 655 N.Y.S.2d 887, 678 N.E.2d 500) and, as such, enjoy a heavy presumption of constitutionality (D'Amico v. Crosson, 93 N.Y.2d 29, 32, 686 N.Y.S.2d 756, 709 N.E.2d 465), which plaintiff has failed to rebut.

 Local Law 27 was enacted to ameliorate the unintended hardships created by Local Law 15, which limited vendors who sell food in public places to one permit each.   Plaintiff contends that, since the Department of Health does not track vendors by the type of food they sell, the City Council could not rationally have found that Local Law 15 created hardships “for certain small business owners who held multiple temporary food permits and who are exclusive distributors or manufacturers of food such as ice cream sold on a seasonal basis on the streets of the City” (Local Law 27, § 1).   However, there is a presumption, which plaintiff has failed to rebut, “that the Legislature has investigated and found facts necessary to support the legislation as well as the existence of a situation showing or indicating its need or desirability” (Hotel Dorset Co. v. Trust for Cultural Resources, 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284 [citations omitted];  see also People v. Walker, 81 N.Y.2d 661, 668, 603 N.Y.S.2d 280, 623 N.E.2d 1).

 Next, plaintiff contends that Local Law 27's distinction between exclusive distributors or manufacturers who held temporary permits as of February 3, 1995 and those who held full-term permits as of that date is not rationally related to the purpose of protecting seasonal food vendors.   It is true that there is not a perfect fit between Local Law 27's distinction and its purpose.   However, “rational distinctions may be made with substantially less than mathematical exactitude” (City of New Orleans, 427 U.S. at 303, 96 S.Ct. 2513;  see also Matter of Bros. of Mercy Nursing & Rehabilitation Ctr. v. DeBuono, 292 A.D.2d 775, 777, 740 N.Y.S.2d 170, lv. denied 99 N.Y.2d 502, 752 N.Y.S.2d 589, 782 N.E.2d 567) and courts defer to “legislative determinations as to the desirability of particular statutory discriminations” (City of New Orleans, 427 U.S. at 303, 96 S.Ct. 2513).  “The issue of whether the legislation is the most efficacious means of achieving the desired goal is not for the court to consider” (Big Apple Food Vendors, 228 A.D.2d at 282-283, 644 N.Y.S.2d 216 [internal quotation marks omitted] ).   Since temporary permits are for April 1 through October 31 of a given year, whereas full-term permits are year-round, the City Council “could have reasonably concluded” that temporary permit-holders sold seasonal food (Exxon Corp. v. Eagerton, 462 U.S. 176, 196, 103 S.Ct. 2296, 76 L.Ed.2d 497).

While Local Law 23, unlike Local Law 27, does not state its purpose, “[t]he Legislature's actual purpose need not be apparent, for a statute is constitutional if rationally related to any conceivable legitimate State purpose” (Walker, 81 N.Y.2d at 668, 603 N.Y.S.2d 280, 623 N.E.2d 1;  see also Nordlinger v. Hahn, 505 U.S. 1, 15, 112 S.Ct. 2326, 120 L.Ed.2d 1).   Raising money is a legitimate state purpose, and the City Council could rationally have concluded that it would be easier to solicit bids for park concessions if the one-vendor, one-permit rule of Local Law 15 were relaxed.   It was rational for the City Council to limit its relaxation of this rule to vendors who sell food in parks, where congestion is not as problematic as it is in non-recreational city streets.

Contrary to plaintiff's claim, Local Laws 27 and 23 do not impliedly repeal Local Law 15.   Implied repeal is not favored, and it is possible to read all three local laws together (see e.g. Iazzetti v. City of New York, 94 N.Y.2d 183, 189, 701 N.Y.S.2d 332, 723 N.E.2d 81).

We have considered plaintiff's remaining arguments and find them unavailing.