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Monday, March 15, 2010
New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested
Matter of Humane Society of United States, Inc. v Brennan, 63 AD3d 1419
The genesis of this lawsuit was the New York State’s Department of Agriculture and Markets' declining to issue a declaration that foie gras* is an adulterated food product within the meaning of Agriculture and Markets Law §200. The Humane Society of the United States** and various other organizations and individuals generally opposed to the production of foie gras then initiated an CPLR Article 78 action seeking a court order compelling the Commissioner to issue the requested declaration or, in the alternative, a review of his determination not to issue such declaration.
§204 of the State Administrative Procedure Act provides that, when petitioned to issue a declaratory ruling, an agency must either issue the ruling or issue a statement declining to issue such ruling. However, said the Appellate Division, “There is no requirement that the agency issue a declaratory ruling when requested and a petitioner has no rights under the statute other than a timely response by the agency.”***
* Foie gras is a food product derived from the intentionally enlarged livers of ducks and geese. The livers are typically enlarged by force-feeding the birds for approximately two weeks before their slaughter.
** There was a procedural matter involved as well – did the petitioners have standing to maintain this action? The Appellate Division held that “Supreme Court properly granted [the [Commissioner’s] motion to dismiss the petition based on petitioners' lack of standing.”
*** The Appellate Division noted that the Department's regulations provide that "[t]he issuance of a declaratory ruling shall be wholly within the discretion of the commissioner." (see 1 NYCRR 368.1 [c]).
Handbooks focusing on New York State and Municipal Public Personnel Law:
The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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