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LEONARD v. DUTCHESS CTY. DEPT. OF HEALTH

July 11, 2000

MICHAEL J. LEONARD; J-LEN, INC. D/B/A GREENBAUM & GILHOOLEY'S; PANGREGORIAN ENTERPRISES, INC.; POUGHKEEPSIE RIVER DISTRICT BUSINESS ASSOCIATION, INC.; C'S INC. D/B/A C'S RESTAURANT & LOUNGE; INC. D/B/A THE NEW POUGHKEEPSIE DINER; CHARLIE'S TOO, INC. D/B/A CHARLIE'S TOO; FORD'S RESTAURANT & TAVERN ASSOC., INC. D/B/A GENE 1900 RESTAURANT; T.J.M. RESTAURANT CORP. D/B/A HOBNOBBIN' PUB; R.L.W.S., INC. D/B/A SPANKY'S RESTAURANT; GENTLEMAN JIM'S RESTAURANT, INC. D/B/A GENTLEMAN JIM'S; EDWIN D. BECK, INC. D/B/A EASY STREET RESTAURANT; KSC OF DUTCHESS, INC. D/B/A GOODFELLA'S INN; PAWLING TAVERN, INC. D/B/A PAWLING TAVERN; CORNERSTONE RESTAURANT, INC. D/B/A CORNERSTONE RESTAURANT; SOUTHERN DUTCHESS BOWL, INC. D/B/A SOUTHERN DUTCHESS BOWL; TAFT AVENUE LANES, INC. D/B/A HOE-BOWL FAMILY RECREATION CENTERS; ELIZABETH CASTIGLIA; AND NATIONAL SMOKERS ALLIANCE, PLAINTIFFS,
V.
THE DUTCHESS COUNTY DEPARTMENT OF HEALTH, MICHAEL C. CALDWELL, COMMISSIONER, DUTCHESS COUNTY BOARD OF HEALTH, ANNE E. DYSON, HELEN FUIMARELLO, JOY GODIN, SUZANNE HORN, RAYMOND KOLOSKI, PETER J. LEADLEY, HARRY J. LYNCH, LILA MATLIN AND RALPH MIDDLETON, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE DUTCHESS COUNTY DEPARTMENT OF HEALTH, DEFENDANTS. WEST PAGE 259



The opinion of the court was delivered by: William C. Conner, Senior District Judge.

OPINION AND ORDER

Plaintiffs herein, restauranteurs, owners of bowling centers and members of the National Smokers' Alliance, bring the instant action for declaratory and injunctive relief pursuant to 28 U.S.C. § 2201, 2202 and for attorney's fees pursuant to 42 U.S.C. § 1988 against the Dutchess County Department of Health; its commissioner, Michael C. Caldwell; the Dutchess County Board of Health (the "Board"); and, in their official capacities, board members Anne E. Dyson, Helen Fuimarello, Joy Godin, Suzanne Horn, Raymond Koloski, Peter J. Leadley, Harry J. Lynch, Lila Matlin and Ralph Middleton (collectively, "defendants"). Plaintiffs allege that defendants' promulgation of certain smoking regulations has denied them equal protection and their right to free speech and violated 42 U.S.C. § 1983, the New York State Constitution and Article 78 of the New York State Civil Practice Law and Rules. Defendants now move to dismiss the amended complaint pursuant to Fed. R.Civ.P. 12(c), claiming that insofar as plaintiff's federal claims fail to state a claim for which relief may be granted, this Court lacks subject matter jurisdiction over the instant action. Plaintiffs move for summary judgment. In addition, plaintiffs seek injunctive relief restraining the Board from enforcing the regulations. For the reasons that follow, defendants' motion, which we will treat as a motion for summary judgment, is denied. Plaintiffs' motion for summary judgment is granted and defendants are permanently enjoined from enforcing the regulations at issue.

BACKGROUND

The following facts, which are not in dispute, are gleaned from the parties' Rule 56.1 Statements and exhibits attached to plaintiffs' notice of motion and adopted by defendants.

On July 5, 1989, the New York State Legislature passed Smoking-Regulation in Certain Public Areas, Chapter 244, an act amending the Public Health Law (the "Clean Indoor Air Act"). 1989 N YLaws 244.

Defendant Caldwell was appointed Commissioner of Health for Dutchess County in August 1994. Shortly after Caldwell joined the Department of Health, the Board began looking into ways of restricting access to tobacco products by minors.

In May of 1998, a bill excluding minors from designated public smoking areas failed to make it out of a committee of the Dutchess County Legislature. In August of 1998, the Board formed a Tobacco Committee to draft a proposed amendment to the Dutchess County Sanitary Code that would regulate indoor environmental tobacco smoke ("ETS"). A draft was prepared and submitted to the County Attorney's Office and to the State Health Department for review. Some modifications were made to the draft based on their recommendations.

A public hearing on the Board's proposed amendment to the Dutchess County Sanitary Code, Article 26, Smoking in Public Places, began on March 5, 1999 and was continued on April 6, 1999. The Board also solicited written comments. At a meeting of the Board on May 20, 1999, the Board voted to table the issue, refer the issue to the Tobacco Committee for a review of the public comments on the proposal, and collect information on litigation in other New York counties based on similar regulations adopted by other boards of health. At a June 17, 1999 Board meeting, the Board voted to amend the draft regulation based on the Tobacco Committee's recommendations and the advice of counsel. The Board voted six to three to pass Article 26 amending the Sanitary Code at their regular meeting on August 19, 1999.

DISCUSSION

I. Subject Matter Jurisdiction

Defendants move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), claiming that in so far "as plaintiffs' federal claims fail to state a claim upon which relief may be granted, this Court does not have subject matter jurisdiction over the action." (Defs.' Mem.Supp.Mot. Dismiss at 2.)

As an initial matter, we hold that this Court has subject matter jurisdiction over the instant action. Plaintiffs' first claim for relief is based upon alleged violations of the Equal Protection Clause of the Fourteenth Amendment; plaintiffs' second and fourth claims arise under 42 U.S.C. § 1983; and plaintiffs' third claim alleges violations of the Free Speech Clause of the First Amendment. Accordingly, this Court has federal question jurisdiction over these claims pursuant to 28 U.S.C. § 1331.

The Court may exercise supplemental jurisdiction over plaintiffs' related claims arising under New York State law pursuant to 28 U.S.C. § 1367. A district court has supplemental jurisdiction over claims that are so related to a claim over which it has original jurisdiction that it forms part of the same case or controversy. 28 U.S.C. § 1367(a). There are four circumstances under which supplemental jurisdiction may be declined:

(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c).

For reasons related to judicial economy, convenience, fairness and comity, this Court has determined that it is appropriate to exercise its supplemental jurisdiction over plaintiffs' state law claim. See generally Justiana v. Niagara County Dep't of Health, 45 F. Supp.2d 236 (W.D.N.Y. 1999) (exercising supplemental jurisdiction over plaintiffs' non-delegation state law claim based on principles of judicial economy, convenience, fairness and comity after finding plaintiff's Equal Protection claim lacked merit); Nassau Bowling Proprietors Ass'n v. County of Nassau, 965 F. Supp. 376 (E.D.N.Y. 1997) (addressing only the threshold issue of whether defendant exceeded its authority pursuant to New York State law in promulgating nonsmoking regulations in case brought under federal question jurisdiction). First, the New York Court of Appeals has squarely addressed the issue to be decided; this is not a claim that presents a "novel or complex issue of state law." Second, the state law claim arises out of the same undisputed facts which form the basis of plaintiffs' federal claims. As the Court is already fully familiar with the record and briefs in this action, judicial economy will be served by our deciding the state law claim. In addition, defendants plan on enforcing the regulations at issue in August 2000. A quick resolution of the action therefore will serve the interests of both parties.

To the extent that defendants argue that this Court lacks subject matter jurisdiction because plaintiffs fail to state a claim for which relief may be granted, this argument is without merit. As the Supreme Court has stated:

Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.

Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).

In Goldman v. Gallant Securities, 878 F.2d 71 (2d Cir. 1989), the Second Circuit held that "[i]f the complaint alleges a violation of federal law and the claim is `neither immaterial nor insubstantial, the proper course of action is for the district court to accept jurisdiction and address [an] objection as an attack on the merits.'" Id. at 73 (citation omitted). In the instant case, plaintiffs allege that the regulations promulgated by defendant Board of Health "provide unequal and adverse treatment" to restaurants and bowling alleys as compared to bars and taverns and force plaintiffs to disseminate an ideological message on their public property with which they do not agree. These claims are not insubstantial or immaterial. Accordingly, we will address defendants' motion as an "attack on the merits."

Pursuant to Fed.R.Civ.P. 12(h)(2), a defense of failure to state a claim upon which relief can be granted may be raised after the pleadings are closed by a Rule 12(c) motion. The motion is then treated like a Rule 12(b)(6) motion. See George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 n. 2 (2d Cir. 1977). Rule 12(c) provides that "[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of ...


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