DECISION & ORDER Upon the papers and exhibits submitted in support of the application, the papers and exhibits submitted in opposition thereto, after hearing oral arguments and for the reasons set forth on the record, it is hereby ORDERED that the Article 78 petition regarding the review of Health Commissioner’s Order dated November 17, 2021, colloquially known as the “toddler mask mandate” is granted. ORDERED that the Health Commissioner’s Order dated November 17, 2021, colloquially known as the “toddler mask mandate” is void and unenforceable. ORDERED that the Respondents are hereby permanently enjoined from enforcing the Health Commissioner’s Order dated November 17, 2021, colloquially known as the “toddler mask mandate.” Procedural History Petitioners challenge and seek an order from this Court, inter alia, for a declaratory judgment, a permanent injunction and judgment pursuant to Article 78 and 63 of the CPLR regarding the “toddler mask mandate.” The Commissioner’s Order The New York City Charter, (hereinafter “City Charter”), empowers the New York City Health Department, (hereinafter “Health Department”), with “jurisdiction to regulate all matters affecting health in the city of New York.” See NY City Charter §556, §558(c). This jurisdiction includes supervising the “control of communicable and chronic diseases and conditions hazardous to life and health,” and providing “programs for the prevention and control of disease.” Id. at §556(c)(2), §556(d)(5). The New York City Administrative Code defines the instances where a mayor may declare a localized state of emergency within New York City. See NYC Admin Code §3-104. It is of note that a state of emergency is subject to a time limitation, as prescribed by the Administrative Code. The relevant portion states: A state of emergency established under the code shall commence upon the declaration thereof by the mayor and shall terminate at the end of a period of five consecutive days thereafter, unless prior to the end of such five day period, the mayor shall either terminate such state of emergency or shall declare an additional state of emergency. Any such additional state of emergency shall commence, and determinate as provided in section 3-140 and in this section. NYC Admin Code §3-107. The New York City Health Code, (hereinafter “Health Code”), provides that the Department “may take such action as may become necessary to assure the maintenance of public health, the prevention of disease, or the safety of the City and its residents.” See Health Code 3.01(c). Furthermore, Section 3.01(d) of the Health Code provides, in part, that the Commissioner may declare a public health emergency and upon the declaration of a public health emergency, the Commissioner, “may establish procedures to be followed, issue necessary orders, and take such action as may be necessary for the health or the safety of the City and its residents.” It further provides that the “exercise of authority or power shall be effective only until the next meeting of the Board…where the Board may continue or rescind the Commissioner’s…exercise of power.” Health Code §3.01(d). The “toddler mask mandate,” as it is colloquially known, was promulgated by a Health Commissioner’s Order issued November 17, 2021 (hereinafter “Commissioner’s Order”). The Commissioner’s Order requires children at least two years of age and under five years of age, who are not eligible for the Covid-19 vaccine, to wear masks while in childcare facilities or at early intervention programs. Though the Commissioner’s Order also addresses vaccination requirements for childcare staff, that issue was not raised by Petitioners, nor is it being addressed by this Court. The Article 78 Petition Judicial review of the acts of an administrative agency under article 78 is limited to questions expressly identified by statute (see CPLR §7803; Matter of Featherstone v. Franco, 95 NY2d 550, 554 [2000]). CPLR §7803 states: The only questions that may be raised in a proceeding under this article are: 1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or 3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion including abuse of discretion as to the measure or mode of penalty or discipline imposed; or 4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence. 5. A proceeding to review the final determination or order of the state review officer pursuant to subdivision three of section forty-four hundred four of the education law shall be brought pursuant to article four of this chapter and such subdivision; provided, however, that the provisions of this article shall not apply to any proceeding commenced on or after the effective date of this subdivision. The City Charter empowers the City Council to “adopt local laws…for the preservation of the public health, comfort, peace and prosperity of the city and its inhabitants.” NY City Charter 28[a]. The Charter restricts the Board of Health’s rulemaking to the publication of a health code. Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dept. of Health & Mental Hygiene, 23 NY3d 681 [2014]. “The concept of the separation of powers is the bedrock of the system of government.” Matter of NYC CLASH, Inc. v. New York State Off. Of Parks, Recreation, and Historic Preserve., 27NY3d 178, 183 [2016]. An administrative agency usurps the authority of the legislative branch when it promulgates a rule that the legislature did not delegate it the authority to make in the first instance. Id. at 178; Greater New York Taxi Ass’n v. NYC Taxi and Limousine Comm’n., 25 NY3d 600, 609 [2015]. The Commissioner’s Order, which according to Health Commissioner Dr. Ashwin Vasan, and Mayor Eric Adams, will be continuing “indefinitely,” is akin to a law. To determine whether an administrative agency “has usurped the power of the Legislature, courts must consider whether the agency: (1) operated outside of its proper sphere of authority by balancing competing social concerns in reliance solely on its own ideas of sound public policy; (2) engaged in typical, ‘interstitial’ rulemaking or ‘wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance’; (3) ‘acted in an area in which the Legislature has repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions’; and (4) applied its ‘special expertise or technical competence’ to develop the challenged regulations.” See Matter of Acevedo v. NYS Dept. of Motor Vehs., 132 AD3d 112, 119 [3d Dept. 2015] citing Boreali v. Axelrod, 71 NY2d 1 at 12-14 [1987]. Applying the Boreali factors here, it appears that the Respondents are promulgating a rule on a subset of our children, specifically children under the age of five (5). Respondents argue that it was “purely driven by public health interests.” However, this Court finds that there was no balancing between the social concerns and the Board’s own “ideas of sound public policy.” The Respondents have only instituted a policy for the youngest children of our City, no one else, regardless of vaccination status. As to the second prong, Respondents argue that the Board of Health has broad authority and denies that it created its own comprehensive set of rules. Again, this Court disagrees. By the very wording of the Commissioner’s Order and the statements made by the Commissioner that this is an “indefinite” Order, the Commissioner has, in effect, “wrote on a clean slate.” As to the third prong, the City Council has made no attempts to legislate mask wearing in schools, however, that is not to say that masking is not a matter of extensive public debate. Finally, as to the fourth prong, the Health Commissioner, and the Board of Health, certainly used their expertise to develop this Order. Respondents argue that based upon their expertise, face coverings are “among the most effective Covid-19 mitigation responses.” This Court does not have a basis to disagree with masks as a mitigation response, however, ordering and enforcing masks on only a portion of the populace for an indefinite period of time, is troubling. It appears that in issuing this indefinite order, usurping the power of the legislature, the Health Commissioner has acted beyond his authority. See Boreali v. Axelrod, 71 NY2d 1 [1987]. Under CPLR Article 78, the Petitioners must establish that the “toddler mask mandate” is so “lacking in reason for its promulgation that it is essentially arbitrary.” NY State Ass’n. of Counties v. Axelrod, 78 NY2d 158, 166 (1991). The standard of review is “whether the regulation has a rational basis, and is not unreasonable, arbitrary, or capricious.” Matter of Consolation Nursing Home, Inc., v. Commr. Of New York State Dept. of Health, 85 NY2d 326, 331-332 [1995]. The reviewing court “must be certain that an agency has considered all the important aspects of the issue and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” O’Rourke v. City of N.Y. 64 Misc. 3d 1203 [A] [Sup. Ct. Kings County 2019]. The Court “may not substitute its own judgment of the evidence…but should review the whole record to determine whether there exists a rational basis to support the findings upon which the…determination is predicated.” Purdy v. Kreisberg, 47 NY2d 354, 358 (1979). “Public health agencies, in particular, are entitled to a high degree of judicial deference when acting in their area of their particular expertise.” C.F. v. NYC Dept. Of Health & Mental Hygiene, 191 AD3d 52, 69 [2d Dept. 2020]. In evaluating whether the Commissioner’s Order is arbitrary and capricious under CPLR Article 78, it is important for the Court to review the rationale and reasons for the issuance of the Order. The Commissioner’s Order included numerous whereas clauses, which referenced the history of the State of Emergency and the public health emergency. The fourth clause includes a vague reference to CDC “variants of concern” without citation, statistics, study or source. The tenth clause further states that face coverings “will potentially save lives; protect public health and promote public safety” without citation, statistics, study or source. It appears, on its face, to be purely speculative. This Court does not dispute the authority of the Health Commissioner and the New York City Board of Health to issue orders to protect the public health, as granted by the New York City Charter. However, it is important to review the history and content of these orders. The Court has reviewed the New York City State of Emergency, which was originally issued on March 12, 2020, in Emergency Executive Order No. 98. It has been renewed regularly, most recently on March 29, 2022, pursuant to Emergency Executive Order No. 65 for a period of thirty (30) days.1 The Health Commissioner issued the disputed “toddler mask mandate” on November 17, 2021. It is clear to this Court that orders issued by the Respondents under the assertion of a public health “emergency,” in which the state of emergency order is reviewed and renewed regularly, are meant to be temporary in nature. However, the Commissioner’s Order states that it shall “remain in effect until rescinded.” Causing further confusion, and understandable frustration to the residents of New York City, is that the orders issued by the Mayor, the Governor and their respective Health Commissioners, are continually changing and seemingly in conflict with each other. For example, Governor Kathy Hochul rescinded the mask mandate for children in schools statewide effective March 2, 2022, leaving counties and cities to determine whether they would continue to require masks.2 During oral arguments, counsel were unable to state where a child or toddler mask mandate currently remained in effect in any county throughout the rest of the State of New York. The City of New York lifted the mask mandate for children over the age of five in schools in early March 2022, regardless of vaccination status. The New York City Health Commissioner, Dr. Ashwin Vasan, stated in mid-March 2022 that the “toddler mask mandate” would continue indefinitely, while the Mayor of the City of New York Eric Adams stated that the children would be unmasked and declared April 4, 2022, as the date that the toddler mask mandate would be discontinued.3 During oral arguments, and within their papers, the Respondents argue that the Commissioner’s Order is rational and reasonable based upon the vulnerabilities of the children under five (5). However, there has been no supporting data submitted by the Respondents as to why this age group under the age of five (5) is more vulnerable than any other unvaccinated age group. The Court has also considered the Affidavits filed by the Petitioners but finds that they are anecdotal in nature and not dispositive. Therefore, continuing this mandate for young children, which appears to be based solely upon purported vulnerability, does not have a basis in law or fact, especially in light of the overall slight increase in cases seen in all age groups throughout the month of March.4 Upon the Court’s own research of the statistics cited by the Respondents, the Center for Disease Control and Prevention (hereinafter “CDC”) found that children aged 0-4, accounted for 3.2 percent of all Covid-19 cases in the United States. Though only 6 percent of the population, this age group accounted for less than 0.1 percent of all deaths from Covid-19 in the United States.5 Though any death is unfortunate, this age group does not appear from the statistics promulgated by the CDC to be more vulnerable or susceptible to Covid-19 than any other age group, despite their inability to be vaccinated. Based upon the low mortality rate, it appears that the children under the age of five are less likely to become severely ill from Covid-19, compared to older children and adults.6 In fact, there has been no demonstration or empirical data submitted by Respondents that unmasked children in daycares or schools outside of New York City face increased risk of severe Covid-19 infection. According to the CDC, in a time of low community transmission of Covid-19, there is no recommendation to wear a mask for any age group.7 In a time of medium transmission, people can “consider wearing a mask” if they are immune compromised or high risk.8 Per the CDC, “at all levels, people can wear a mask based on personal preference, informed by personal level of risk.”9 As of today, April 6, 2022, New York City is in a low community level of transmission.10 From a review of this data, the orders in effect, and the orders recently vacated, while giving judicial deference to the Health Commissioner and the Board of Health, this Court is finding the continuation of the Commissioner’s Order to be arbitrary and capricious. “Capricious action in a legal sense is established when an administrative agency on identical facts decides differently.” Italian Sons & Daughters, Inc. v. Common Council of Buffalo, 453 NYS2d 962 [4th Dept. 1982]. The Respondents have done exactly this. They have made different decisions on identical sets of facts and statistics, such as granting exemptions to unvaccinated athletes and performing artists, or allowing unvaccinated children over the age of five to unmask. This “toddler mask mandate,” that is slated to continue “indefinitely” is not in accordance with the CDC guidance, nor is it rational or reasonable in light of the ever-changing data. This is the very definition of arbitrary and capricious. CONCLUSION We have seen throughout the course of the Covid-19 pandemic that virus changes, the data changes, therefore, temporary and emergency orders must change as well. The Court has reviewed the entire record and does not find a rational basis to support the continuation of this specific mandate, especially in light of restrictions being lifted for other classes, including, children above the age of five, athletes, performing artists, and other unvaccinated adults. The government must answer to the People of the City of New York. Though the Mayor’s and the Commissioner’s orders may appear to be controversial to some, it is of utmost importance to this Court that all Orders issued by Respondents be rational and reasonable. With the vacatur of the other mandates, orders, and restrictions issued by the Respondents, continuing only the “toddler mask mandate” based upon their ineligibility for the vaccine, lacks a rational basis. Children over the age of five attend school without masks, may be unvaccinated, and are not separated from their peers.11 Adults can attend concerts, social events, or go to restaurants, without masks or proof of vaccine.12 Athletes and performing artists can “work” in our city because they were granted a vaccination exemption by the Mayor13, while other City employees have lost their livelihoods because they did not comply with the Commissioner’s vaccination orders.14 The Respondents have chosen which orders to enforce and which orders to vacate by selectively choosing which science to follow. The parents of our youngest residents must also be able to make a choice of whether to mask their children because the science does not mandate masking during these times of low to medium Covid-19 transmission.15 The Respondents have acted in an arbitrary and capricious manner by issuing an indefinite masking order that is not supported by their subsequent actions or orders in nearly identical situations. Therefore, based upon the arguments of counsel, after a careful review of all papers submitted in support and opposition thereto, it is hereby ORDERED that the Article 78 petition regarding the review of Health Commissioner’s Order dated November 17, 2021, colloquially known as the “toddler mask mandate” is granted. ORDERED that the Health Commissioner’s Order dated November 17, 2021, colloquially known as the “toddler mask mandate” is void and unenforceable. ORDERED that Respondents are hereby permanently enjoined from enforcing the Health Commissioner’s Order dated November 17, 2021, colloquially known as the “toddler mask mandate.” Dated: April 6, 2022
