Lalima v. N.Y.S. Dep't of State

184 N.Y.S.3d 451

In the Matter of Joseph E. LALIMA, doing business as Lalima's Barber Shop, Petitioner,

v.NEW YORK STATE DEPARTMENT OF STATE et al., Respondents.

534906

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 13, 2023

Decided and Entered: March 2, 2023

The Towne Law Firm, PC, Albany (Megan Bassler of counsel), for petitioner.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Clark, Ceresia and Fisher, JJ.

MEMORANDUM AND JUDGMENT

Egan Jr., J.P.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Special Deputy Secretary of State revoking petitioner's barber operator license and barber shop license.

Petitioner obtained his barber's license shortly after his high school graduation in 1963 and, except for his Army service during the Vietnam War, has worked as a barber since that time. He was also licensed to operate a barber shop and, as of 2020, had done so for 45 years out of his residence in the City of Kingston, Ulster County. On March 19, 2020, in response to the emerging COVID–19 pandemic, Governor Andrew Cuomo ordered all barber shops in the state to close no later than March 21, 2020 (see Executive Order [A. Cuomo] No. 202.7 [ 9 NYCRR 8.202.7 ]). Petitioner complied but, after reading an article from his local newspaper's March 21, 2020 edition headlined "Cuomo: Work at home, don't gather," he came to believe that he could resume operations since he worked out of his home. He accordingly reopened his barber shop on March 27, 2020, cutting the hair of first responders and regular customers, but closed again on May 11, 2020 when he was hospitalized for breathing problems that he attributed to the lingering effects of a January 2020 bout of pneumonia and his chronic obstructive pulmonary disease, but turned out to be due to COVID–19.

Petitioner was released from the hospital later that month and, in June 2020, reopened his barber shop after Governor Cuomo allowed barber shops in petitioner's area to resume operations subject to compliance with COVID–19 guidelines promulgated by the Department of Health (see Executive Order [A. Cuomo] No. 202.35 [ 9 NYCRR 8.202.35 ]; Reopening New York: Hair Salon & Barbershop Guidelines for Employers and Employees, available at https://www.governor.ny.gov/sites/default/files/atoms/files/HairSalonsAndBarbershopSummaryGuidance.pdf [last accessed Jan. 25, 2023]). Petitioner's actions had come to the attention of state officials when they received national media coverage, however, prompting the Division of Licensing Services (hereinafter the Division) of respondent Department of State to commence an investigation into what had transpired. The Division's investigator conducted a telephone interview with petitioner in June 2020, during which petitioner stated that he had misunderstood the March 2020 newspaper article and regretted reopening. Petitioner further submitted a signed statement to the investigator in which he reiterated that he realized that he should not have reopened and that he "sincerely apologize[d] for [his] actions." The investigator thereafter conducted an August 14, 2020 inspection of petitioner's barber shop that resulted in petitioner being ticketed for violating several regulatory provisions governing sanitation at barbershops and beauty parlors (see 10 NYCRR 10.1 et seq. [hereinafter the sanitary code]) – namely, the failure to post a copy of the sanitary code and the presence of a neck duster used to brush loose hair off of a customer's neck and ears – as well as aspects of the COVID–19 guidelines.

On August 31, 2020, the Division filed a disciplinary complaint against petitioner seeking suspension or revocation of his licenses to practice barbering and operate a barber shop pursuant to General Business Law § 441. The Division specifically alleged that petitioner had "practic[ed] with an infectious or communicable disease" (see General Business Law § 441[a][2] ; 10 NYCRR 10.31 ), violated the sanitary code, executive orders and COVID–19 guidelines in his operation of the barber shop (see General Business Law § 441[a][8] ), and acted in a manner reflecting incompetence (see General Business Law § 441[a][6] ).

Following an October 2020 hearing at which petitioner and the investigator testified, the Administrative Law Judge (hereinafter ALJ) issued a May 2021 decision determining that petitioner did not knowingly practice with an infectious disease because he had good reason to believe that his symptoms were attributable to his preexisting health conditions. The ALJ also determined that petitioner did violate the sanitary code by failing to post a copy of the code and having a neck duster in his shop, although the ALJ lacked authority under General Business Law § 441(a)(8) to also discipline him for violating executive orders and COVID–19 guidelines (see General Business Law § 441[a][8] ; 10 NYCRR 10.2, 10.27 ). The ALJ further found, however, that petitioner had exhibited untrustworthiness and incompetence by operating the barber shop in violation of an executive order directing that it be closed, recklessly continuing to do so with symptoms of what he later learned was COVID–19, and then reopening and operating the shop without complying with the COVID–19 guidelines (see General Business Law § 441[a][6] ). The ALJ determined that the appropriate penalty was the immediate revocation of petitioner's barber operator and barber shop licenses. Respondent Special Deputy Secretary of State (hereinafter the Secretary) affirmed, prompting petitioner to commence this CPLR article 78 proceeding.

Petitioner does not dispute the Secretary's factual findings; he does, however, argue that the Secretary applied the incorrect standard in assessing his incompetence by including untrustworthiness within the scope of General Business Law § 441(a)(6). Petitioner specifically notes that General Business Law article 28, the article governing the licensing and conduct of barbers, does not reference "untrustworthiness," and he suggests that the standard of incompetence and untrustworthiness was erroneously derived from the separate disciplinary standards for real estate brokers (see Real Property Law § 441–c [1][a] ). We need not defer to the Secretary's reading of General Business Law article 28, "as this is a matter of pure statutory interpretation and does not require ‘knowledge of underlying operational practices or the evaluation of factual data and rational inferences’ " ( Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 A.D.3d 117, 127, 170 N.Y.S.3d 234 [3d Dept. 2022], quoting Hollandale Apts. & Health Club, LLC v. Bonesteel, 173 A.D.3d 55, 67, 100 N.Y.S.3d 711 [3d Dept. 2019] ). Nevertheless, after reviewing "the statutory language and legislative history" as is required, we agree with the Secretary's interpretation that untrustworthiness is an aspect of incompetence within the meaning of General Business Law article 28 ( Matter of Purcell v. New York State Tax Appeals Trib., 167 A.D.3d 1101, 1103, 89 N.Y.S.3d 421 [3d Dept. 2018], appeal dismissed 33 N.Y.3d 999, 101 N.Y.S.3d 729, 125 N.E.3d 145 [2019], lv denied 33 N.Y.3d 913, 2019 WL 4266129 [2019] ; see Matter of Sanchez v. Jacobi Med. Ctr., 182 A.D.3d 121, 124, 118 N.Y.S.3d 792 [3d Dept. 2020] ).

General Business Law § 441(a)(6) makes "[i]ncompetency" a ground for disciplinary action against a barber and, construing that word "according to its natural and most obvious sense ... in accordance with its ordinary and accepted meaning" (McKinney's Cons Laws of NY, Statutes § 94, Comment; accord Samiento v. World Yacht Inc., 10 N.Y.3d 70, 78, 854 N.Y.S.2d 83, 883 N.E.2d 990 [2008] ), the statute requires that a barber must be "inadequate to or unsuitable for" the work (Merriam–Webster.com Dictionary, incompetent [https://www.merriam-webster.com/dictionary/incompetent]). As the goal of General Business Law article 28 is "to safeguard health by sanitation and other measures" in barbering ( Pettalino v. State of New York, 24 A.D.2d 524, 525, 260 N.Y.S.2d 322 [3d Dept. 1965] ), a barber's suitability and adequacy for the job is dependent upon having the "technical skill, training and experience, good health, good moral character and other fundamental qualities and qualifications" needed to protect the health of his or her patrons ( General Business Law § 430 ). A barber who cannot be trusted to do so – either because the barber lacks knowledge of the appropriate standards or does not comply with them because of a lack "of sufficiently good moral character" – is inadequate to and unsuitable for the job, in other words, and such untrustworthiness constitutes incompetence within the meaning of General Business Law § 441(a)(6) ( Matter of Pond v. Lomenzo, 32 A.D.2d 887, 888, 302 N.Y.S.2d 158 [4th Dept. 1969] ). The Secretary therefore properly applied that standard to find that petitioner's actions, and notably his decision to reopen the shop in violation of an executive order, his continuing to operate despite having symptoms of what proved to be COVID–19, and then failing to learn the requirements of the COVID–19 guidelines and implement them, reflected incompetence and untrustworthiness.

As for petitioner's further challenge to the penalty imposed of revocation, "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" ( Matter of Lewis v. New York State Off. of Children & Family Servs., 114 A.D.3d 1065, 1067, 981 N.Y.S.2d 457 [3d Dept. 2014] [internal quotation marks and citations omitted]; see Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001] ; Matter of Patel v. New York State Educ....