Levine v. Whalen

Larkin, J. (dissenting).

I dissent. The majority holds that section 2800 of the Public Health Law constitutes an impermissible delegation of legislative power to the Department of Health and provides insufficient guidelines to determine the outer bounds of the department’s powers. The section provides that: "Hospital and related services including health-related service of the highest quality, effectively provided and properly utilized at a reasonable cost, are of vital concern to the public health. In order to provide for the protection^ and promotion of the health of the inhabitants of the state * * * the department of health shall have the central, comprehensive responsibility for the development and administration of the state’s policy with respect to hospital and related services” (Public Health Law, § 2800). In my opinion there is no valid constitutional objection to such language.

"It is a well-established principle of administrative law that to prevent an unlawful delegation of power, it is incumbent upon the legislative authority to set forth standards to indicate to the agency the limits of its power, the specificity of the standards being relative to the nature of the program” (Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269, 276). Section 2800 of the Public Health Law directs that the policy of this State in the area of hospitals and related services is "to provide for the protection and promotion of the health of the inhabitants of the state”. In an area of similar complexity, and incidentally involving similar issues of due process, the general purposes of zoning ordinances to *510promote the public health, safety, morals and general welfare have been held to furnish sufficient norms to be followed by zoning boards of appeals in determining whether a certain use should be permitted in a specific area (Matter of Aloe v Dassler, 278 App Div 975, affd 303 NY 878). In the field of the regulation of the harness racing industry, enabling legislation providing the State Harness Racing Commission with authority to issue licenses only when satisfied that the "public interest, convenience or necessity” would be served and that the issuance of the license would be in the "best interests of racing generally” was held to provide sufficient standards to the commission (Matter of Sullivan County Harness Racing Assn. v Glasser, supra). Accordingly, the direction, contained in section 2800 of the Public Health Law, to the Department of Health to develop and administer the policy stated therein by the Legislature is a proper delegation of authority.

The majority also concludes that the Legislature has established insufficient guidelines for the Department of Health regarding the structural fire safety measures which are primarily in issue herein. I disagree. Subdivision (a) of section 2806 of the Public Health Law provides that a hospital operating certificate may be revoked by the commissioner on proof that "the hospital has failed to comply with the provisions of this article or rules and regulations promulgated thereunder”. The only language in article 28 that concerns the specific issues presented in this case is contained in paragraph (b) of subdivision 2 of section 2805 of the Public Health Law which provides that "[a]n operating certificate shall not be issued by the department unless it finds that the premises, equipment * * * are fit and adequate”. In an analogous situation, our courts have consistently held that under a general standard of "fitness” an administrative agency may determine a person’s fitness for a particular occupation in connection with a license application (Matter of Employers Claim Control Serv. Corp. v Workmen’s Compensation Bd. of State of N. Y., 35 NY2d 492; Matter of Mandel v Board of Regents, 250 NY 173). I see no reason to require more detailed standards to guide an administrative agency in determining whether a building, as opposed to a person applying for a license, is fit or adequate.

Under section 2806 of the Public Health Law no hospital operating certificate may be revoked without a hearing. A copy of the charges and a notice of the time and place of the hearing must be served upon the hospital at least 21 days *511before the hearing date, with all orders and determinations subject to review pursuant to CPLR article 78. These procedural safeguards were adhered to in the instant case and not only provide support for upholding the sufficiency of the standards for administrative action contained in article 28 of the Public Health Law (1 NY Jur, Administrative Law, § 53), but also meet the argument presented that petitioner has been deprived of his property without due process of law (id., § 123 et seq.).

The majority further finds that the regulations adopted for the purpose of prescribing construction standards under article 28 of the Public Health Law "are so vague, confusing and meaningless as to be arbitrary and unreasonable”. A brief description of the regulatory scheme set forth in the Hospital Code as to standards of construction at the time of the determination refutes this conclusion (substantial revision of the provisions of Chapter V of the State Hospital Code [10 NYCRR Part 700 et seq.], eff Oct. 1, 1975, has been made since the date of the determination herein). Part 711 entitled "General Standards of Construction” was applicable to all medical facilities, including nursing homes (10 NYCRR 700.2 [a] [9]). Section 711.1 provided a three-step method for compliance with the State Hospital Code by nursing homes. A facility must first have complied with Part 713, which set forth the specific standards of construction for nursing homes (10 NYCRR 711.1 [a]). If compliance with Part 713 was impossible, the commissioner could have modified the provisions thereof within the limits of section 711.5 (10 NYCRR 711.1 [b]) which pertained to existing nursing homes. If compliance was still not possible, the commissioner could have, under certain circumstances, granted an exception to the above requirements (10 NYCRR 711.1 [c]). In addition, section 711.2 (10 NYCRR 711.2) sets forth pertinent technical standards, making compliance with certain listed national codes prima facie evidence of compliance with that section. The first of the 11 nátional codes listed was the Life Safety Code.

In my opinion this comprehensive scheme, containing several alternative means by which petitioner could comply with the standards of the Department of Health, in view of the provisions for review contained in section 2806 of the Public Health Law, provided petitioner with adequate protection against the deprivation of his property without due process of law. I find no merit in the contention advanced in behalf of petitioner that he should be allowed to continue operations in violation of the State Hospital Code because his structure was *512in existence prior to the date of the regulations. The policy of protecting the inhabitants of hospitals, nursing homes and related facilities in our State from such hazards as fire makes any analogy to cases involving a mere property interest, such as zoning cases involving pre-existing uses, fail completely. Nor do I find persuasive the arguments that respondent improperly interpreted its own regulations in determining that compliance with the Life Safety Code was a minimum requirement in all cases and that Part 713 (10 NYCRR Part 713) applied to existing facilities. Interpretations by administrative agencies concerning their own regulations must be accorded great weight and, unless clearly erroneous, should not be disturbed (1 NY Jur, Administrative Law, § 108). I also find to be without merit the argument that application of the Life Safety Code to petitioner’s facility was an unconstitutional incorporation by reference.

There is no question that the respondent’s determination is based upon substantial evidence. The petitioner admits that it would be impossible for him to comply with the Life Safety Code (10 NYCRR 711.2 [a]) or with Part 713 of the regulations (10 NYCRR Part 713) because of the age of his structure. Although petitioner established practical difficulty as to those code requirements from which he sought modifications (10 NYCRR 711.1 [c]) and produced further testimony to the effect that the modifications he suggested would not adversely affect the health and safety of the inhabitants of the home (10 NYCRR 711.1 [c] [1]), respondent’s expert, a college professor with very impressive qualifications, testified that if the modifications sought were allowed, the health and safety of the occupants of the home would be adversely affected. In view of such conflicting testimony, there can be no doubt that the determination revoking petitioner’s operating certificate was supported by substantial evidence.

The determination should be confirmed, and the petition dismissed.

Sweeney and Koreman, JJ., concur with Kane, J.; Herlihy, P. J., concurs in a separate opinion; Larkin, J., dissents and votes to affirm in an opinion.

Determination annulled, with costs to petitioner, judgment directed to be entered declaring section 2800 of the Public Health Law unconstitutional, and matter remitted for further proceedings not inconsistent herewith. Motion denied as academic, without costs.