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Naylon v. Billitier

September 3, 2007


The opinion of the court was delivered by: William M. Skretny United States District Judge



On September 14, 2005, Plaintiffs Richard E. Naylon, Jr. and Elmwood-Anderson Corporation commenced this action under 42 U.S.C. § 1983. Plaintiffs assert that Defendant Anthony S. Billitier, IV, M.D., the Erie County Health Commissioner, violated their substantive due process rights when he failed to promulgate regulations and procedures implementing New York Public Health Law 1399-u, which contains the waiver provisions applicable to New York's ban on smoking in certain restaurants.

Presently before this Court is Defendant's Motion to Dismiss Plaintiffs' Complaint, filed on September 5, 2006.*fn1 Plaintiffs filed their opposition on December 15, 2006. This Court took the matter under advisement following oral argument on January 22, 2007. For the reasons discussed below, Defendant's motion is denied.


In adjudicating Defendant's motion, this Court assumes the truth of the following factual allegations contained in the Complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).

At all times relevant to this case, Plaintiff Richard E. Naylon, Jr., was the sole shareholder and chief operating officer of Plaintiff Elmwood-Anderson Corporation, which operated a bar and restaurant in Erie County, New York, under the trade name "Jimmy Mac's." (Complaint, ¶¶ 1, 2.) Defendant Anthony S. Billitier, IV, M.D., is the Commissioner of Health for Erie County. (Complaint, ¶ 5.)

Prior to July 23, 2003, Plaintiffs operated Jimmy Mac's in compliance with the applicable statutes and regulations regarding the smoking of tobacco products on the premises. (Complaint, ¶ 8.) But effective July 23, 2003, the New York State Legislature amended the Clean Indoor Air Act ("CIAA"), codified as New York Public Health Law, Article 13-E, such that Plaintiffs could no longer permit smoking inside Jimmy Mac's. (Complaint, ¶ 9.) The Legislature further provided in the CIAA that an enforcement officer may issue a waiver of the smoking prohibition for businesses that could demonstrate an undue financial hardship or other factors that would render the implementation of the prohibition unreasonable. (Complaint, ¶10.)

Defendant is an enforcement officer authorized to implement the CIAA. (Complaint, ¶ 11.) But at all times relevant, Defendant failed to fairly implement the waiver provisions of the CIAA by refusing to issue waivers for unknown and unsubstantiated reasons. (Complaint, ¶ 11.) Defendant's refusal to consider Plaintiffs' waiver application amounted to a de facto determination that no waivers would ever be issued. (Complaint, ¶ 12.)

Consequently, Plaintiff challenged Defendant's refusal to consider waiver applications in the New York State Supreme Court. (Complaint, ¶ 13.) Only after being directed to do so by the state court did Defendant issue guidelines for waiver applications. (Complaint, ¶ 13). See Matter of Elmwood-Anderson Corp. v. Novello, 3 Misc.3d 858 (Sup. Ct. 2004). But the guidelines Defendant issued imposed unattainable criteria for waivers, and these requirements exceeded Defendant's statutory authority to implement the CIAA. (Complaint, ¶ 13.)

On October 1, 2004, the New York State Appellate Division, Fourth Department, affirmed the New York Supreme Court's finding that Defendant's guidelines for waivers were unenforceable because they were arbitrary, capricious, irrational, and exceeded the terms of the statute, (Complaint, ¶ 14). See Matter of Elmwood-Anderson Corp. v. Novello, 11 A.D.3d 969 (4th Dept. 2004).

Defendant failed to reformulate the guidelines as directed by the Fourth Department. (Complaint, ¶ 15.) Plaintiffs allege that for the period beginning July 23, 2003, through and including October 18, 2004, Defendant's inaction, obfuscation, and illegal non-compliance with the Fourth Department's order to formulate guidelines unconstitutionally denied them the ability to secure a waiver from the smoking prohibition, a waiver for which they were qualified under the CIAA. (Complaint, ¶ 16.) Plaintiffs allege that they would have successfully obtained such a waiver if Defendant had implemented proper and legitimate guidelines. (Complaint, ¶ 17.)

Plaintiffs claim that as a result of Defendant's refusal to grant them a waiver, Jimmy Mac's suffered financial losses and was eventually rendered insolvent. (Complaint, ¶ 18.)

On October 18, 2004, Plaintiffs closed Jimmy Mac's and sold it at a price well below its value. (Complaint, ¶ 19.) Plaintiff's allege that Defendant's actions (or inaction) were willful, wanton, malicious, and oppressive. (Complaint, ¶ 20.) Plaintiffs seek $1,000,000 in compensatory ...

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