I agree with the conclusion of Mr. Justice Kane that insofar as section 2800 of the Public Health Law is concerned, any reliance by the respondent thereon as authority for the promulgation of regulations would be unconstitutional. It seems apparent that rather than attempting to restrict the broad delegation of power as to policy contained in section 2800, the appropriate judicial action for the protection of the Constitution is to declare section 2800 unconstitutional. Such action will ensure that the Legislature will fully consider the drastic impact that this exercise of the police power will have upon nursing homes that have heretofore been legally and validly operated pursuant to the licensing scheme. It should be observed that the refusal to continue the license of such nursing homes not only affects the pocketbook of the owner thereof, but also casts the patients thereof into new surroundings at times when stability in such regard is presumably important. Furthermore, it must be publicly understood that the closing of older facilities is in fact an economic advantage to the owners of newly constructed facilities as such a procedure helps ensure clients by movement of the patients out of the closed facilities. Additionally, the economic impact upon the public and the social service agency would be of serious consequence.
In sum. far more is at stake than the laudable desire to *509house patients in the best possible facilities in terms of fire protection. At present, the Legislature has not duly enacted an exercise of the police power which would close these preexisting nursing homes for a failure to utilize construction procedures not previously required or perhaps not even previously possible.
It is also my opinion that the regulations themselves do not require compliance with the Life Safety Code and, accordingly, the determination is arbitrary and capricious since the reliance was entirely upon mandatory compliance or at best upon impossible alternatives. From this record it appears that there are numerous methods available to reasonably protect the patients against danger from fires.
For these reasons I agree with the conclusion of Mr. Justice Kane that the determination should be annulled, and the matter remitted for further proceedings.