1. Environmental Health and Local Health Departments: A Legal Overview Justin D. Pfeiffer, Esq. NYSDOH, Bureau of House Counsel October 8, 2013

2. Disclaimer The contents of this presentation should not be construed to represent any government agency determination or policy. These materials are for instructional use only and are not intended as a substitute for professional legal advice. 2

3. Outline Legal authority to enact public health laws Legal duties of local health departments Enforcement powers of local health departments Administrative Hearings & Judicial Review 3

4. Defining Public Health Law “Public Health Law is the study of the legal powers and duties of the state to assure the conditions for the people to be healthy … and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the protection or promotion of community health.” - Prof. Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint 4

5. Three broad legal concepts Power ­What the government can do Duties ­What the government must do Limitations ­What the government cannot do 5

6. Federal Authority to Regulate Public Health Powers of Congress ­Tax and spend ­Regulate commerce between states ­Regulate international commerce ­Near interstate and intl. borders, travel hubs ­Regulate immigration ­Make treaties U.S. Constitution, Article 1, Section 8 6

7. State Authority to Regulate Public Health, under U.S. Constitution The States’ “Police Power” ­“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” ­U.S. Constitution, 10 th Amendment States use this power to do many things to protect the common good, including regulating public health 7

8. State Statutes and Regulations New York State Constitution gives the NY Legislature power to enact statutes on many subjects, including public health ­Statutes are often broadly written Statutes pertaining to public health often empower the Department of Health to issue regulations ­Regulations are usually much more detailed ­Note the DOH is in the Executive Branch ­So DOH’s authority to regulate is limited to what the Legislature says it can do 8

9. Examples of NYS Exercising Police Power in Public Health Require reporting of communicable disease cases and outbreaks Set standards for sanitation in: ­Drinking water ­Restaurants ­Children’s camps ­Public pools, beaches, and spray grounds ­Fairgrounds, concerts, and events 9

10. Examples of NYS Exercising Police Power in Public Health License hospitals and nursing homes License healthcare professionals Require children to be vaccinated to enter public school Control toxic threats to public health Regulate the practice of funeral directing Control low-level radioactive materials and radiation producing equipment 10

11. Local Authority Article 3 of the Public Health Law (PHL) establishes the powers and duties of local health organizations ­PHL §§ 300-329 apply, in general ­PHL § 340 et seq. apply to those counties that have formed county health districts ­PHL §§ 356 and 357 apply to those which have not formed county health districts 11

12. Local Authority The NYS Legislature has also empowered county governments to adopt charters ­Municipal Home Rule Law § 30 et seq. A county charter can modify and rearrange the administration of public health, but cannot reduce the county’s public health obligations 12

13. Local Authority The NY Legislature has enacted statutes empowering: County governments to enact health related ordinances ­Municipal Home Rule Law § 10 County boards of health to issue county sanitary codes that are at least as protective as the State Sanitary Code ­Public Health Law §§ 228 and 308 13

14. Limitations: U.S. Constitutional Principles & Individual Rights Due Process ­No person may be deprived of life, liberty, or property without due process of law Equal Protection ­All persons must be treated equally Federal and State Governments must follow these principles, according to: ­U.S. Constitution, 5 th Amendment (Federal) ­U.S. Constitution, 14 th Amendment (States) 14

15. Due Process Principles for Balancing Public Health and Individual Rights Necessity ­A law that takes away liberty must be in response to a public health threat Reasonableness ­Law must be reasonably related to the threat Harm Avoidance ­Law must minimize harm Proportionality ­Law must be in proper proportion to the threat 15

16. Outline Legal authority to enact public health laws Legal duties of local health departments Enforcement powers of local health departments Administrative Hearings & Judicial Review 16

17. State DOH role with respect to Local Health Departments The State Department of Health is required to supervise the work of local health organizations ­Public Health Law § 201 State officials actively assist in enforcing public health laws in partial service counties 17

18. Environmental Health Duties of Local Health Departments LHDs are required to enforce the State Sanitary Code and, if one exists, the local sanitary code ­Public Health Law §§ 308, 324 and 1308 LHDs are also required to enforce or apply other environmental health laws, including but not limited to: ­Tanning (if authorized) - 10 NYCRR Part 72 ­Realty subdivision approvals - 10 NYCRR Part 74 ­Individual water and sewage regulations - 10 NYCRR Part 75 ­Tobacco – Clean Indoor Air Act and ATUPA Public Health Law Articles 13-E and 13-F 18

19. Environmental Health Duties of Local Health Departments LHDs must investigate and ensure abatement of public health nuisances ­Public Health Law §§ 308 and 1303 Body art regulations ­Stay tuned! 19

20. State Aid Requirements The Department of Health issues regulations establishing the eligibility requirements for State Aid, some of which relate to environmental health ­10 NYCRR Part 40 Guidance documents 20

21. What is a “public nuisance”? A public nuisance is anything that causes an actual or imminent danger to the public’s health. Examples: ­Allowing propagation of pests ­Improper disposal of garbage or toxic waste ­Air, soil, and water pollution ­Unsanitary conditions in tenant buildings A nuisance is “public” if it affects a “considerable number of persons” ­532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280 (2001) 21

22. What is a “private nuisance”? The Court of “private nuisance” is like a public nuisance, but it affects the health of “one person or relatively few” ­Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564 (1977) Government does not have jurisdiction to address private nuisances ­Citizens must retain private counsel 22

23. Outline Legal authority to enact public health laws Legal duties of local health departments Enforcement powers of local health departments Administrative Hearings & Judicial Review 23

24. Investigative Reporting is Crucial The quality of the investigation can make or break a case A good case file is: ­Truthful ­Accurate ­Concise ­Organized Acronym: TACO! 24

25. Purpose of Inspections and Investigations Verify that a party is complying with the law If not, gather evidence to support an enforcement action and ensure a positive outcome for the LHD 25

26. Subpoenas LHDs can issue subpoenas for witness testimony and documents ­Public Health Law § 309 Subpoenas must comply with Civil Practice Laws and Rules (CPLR) ­Work with your attorney to ensure compliance 26

27. Authority to Investigate and Inspect Authorized NYS DOH investigators can inspect public and private property for violation of public health law or public nuisances ­Public Health Law §§ 206 and 1300 ­Warrant generally required County health officers can inspect public and private property for violation of public health law or public nuisances ­Public Health Law §§ 324, 1304 and 1305 ­Warrant generally required 27

28. Warrants and U.S. Constitution, 4 th Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” To ensure inspections are “reasonable” a warrant is generally required ­Camara v. Municipal Court (387 U.S. 523) 28

29. When a Warrant is Not Required Consult your attorney before inspecting private property without a warrant! Party consents Immediate threat to public health or safety When inspecting public property ­But not persons on public property Private property, where the public is invited: ­E.g., restaurants, pools For “closely regulated businesses”, under specific conditions ­New York v. Burger (482 U.S. 691) 29

30. Public Nuisance Abatement Revoke, limit, or suspend a permit Issue civil fines, a.k.a. “penalties”, up to $2,000 per violation ­PHL § 309(1)(f) ­In 2011, increased from $1000 ­Check whether your county sanitary code has been updated 30

31. Public Nuisance Abatement LHDs can issue orders directing a party to stop an activity or clean up a site ­Public Health Law § 1303 If the party fails to comply, health officers can enter the property to abate the nuisance ­Public Health Law § 1305 ­A warrant is generally required The party is liable for the LHD’s expenses in cleaning up the nuisance ­Public Health Law § 1306 31

32. Restraining Orders and Warrants In situations where immediate action is required, LHDs can apply to a court for a temporary restraining order (TRO) ­Public Health Law § 1308 Arrest warrants can be issued to peace officers if necessary ­Public Health Law § 309 ­Talk to your counsel and police force first! 32

33. Criminal Penalties In general, violating the order of a local board of health or local health officer is class A criminal misdemeanor ­Up to 1 year imprisonment ­Public Health Law § 12-b; Penal Law §§ 55.10 and 70.15 However, violations of the State Sanitary Code are criminal “violations”, not misdemeanors ­Criminal penalty of $250 for first offense, $500 per “second or subsequent” offense ­Up to 15 days in prison ­Public Health Law § 229; Penal Law § 70.15 33

34. Outline Legal authority to enact public health laws Legal duties of local health departments Enforcement powers of local health departments Administrative Hearings & Judicial Review 34

35. Due Process - Notice If a hearing is required, the LHD must inform the person of the time and place within a reasonable time frame Work with your attorney to ensure valid service of process 35

36. Due Process - Specific Charges The notice of the hearing must specifically state: ­the law or regulations violated ­the factual basis for the violation ­the basis for the agency’s jurisdiction for holding a hearing 36

37. Due Process – Other Req’s Open to Public (usually) Right to an attorney Right to an interpreter, if necessary Right to review evidence Right to call witnesses Right to cross-examine adverse witnesses 37

38. Due Process – Other Req’s Record of the Hearing (written or audio) Hearing officer’s decision must be based solely on the evidence presented Hearing officer’s decision must state the specific reasons for making the determination Hearing officer must base the decision on the whole record Can determine that evidence is not persuasive, but cannot ignore evidence 38

39. Due Process – Impartial Hearing Officer LHD’s Board of Health has authority to appoint an administrative hearing officer ­PHL § 309(1)(g) No conflict of interest Unbiased ­Cannot have been part of the investigation or the prosecution, or otherwise have personal knowledge of the facts ­Must not have any reason to pre-judge the parties or the case ­Must not demonstrate any prejudice for or against the parties 39

40. “Ex Parte” Contacts Prohibited Neither the LHD, nor the responding party, may unilaterally discuss the case with the hearing officer Any communication with the hearing officer must include both parties by: ­Teleconference, or ­Courtesy copies of letters 40

41. Burden of Proof At a hearing, it is the LHD’s responsibility to prove its case ­Other party is “innocent until proven guilty” When determining facts, the hearing officer should decide which side has a “preponderance” of the evidence ­In other words, 51% or more ­This is a lower threshold than “clear and convincing” or “beyond a reasonable doubt” 41

42. Judicial Review – Article 78 In court, a judge will determine if: The hearing officer’s factual determinations were supported by “substantial evidence” ­Something less than a “preponderance” or 51% ­Gives deference to the factual findings of the hearing officer Hearing officer correctly interpreted the law ­Different from evidentiary review Respondent was treated impartially LHD did not act “arbitrarily” or “capriciously” 42

43. Judicial Enforcement If a respondent fails to comply with a hearing officer’s determination, the LHD can apply for a court order to enforce the determination Obtaining a court order takes time and resources, but if a party violates a court order, the court can hold a respondent in “contempt” ­Higher fines ­Possible imprisonment 43

44. Thank You! 44