Grossman v. Baumgartner

22 A.D.2d 100, 254 N.Y.S.2d 335, 1964 N.Y. App. Div. LEXIS 2682

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1964
• Status: Published

Opinions

Steuer, J.

This action, brought by two operators of tattooing establishments, seeks a declaratory judgment declaring section 181.15 of the New York City Health Code unconstitutional and enjoining respondents, the Board of Health and the Department of Health, from enforcing it. The section makes it unlawful for any person to tattoo a human being. An exception is made for physicians acting for medical purposes. The plaintiffs prevailed at Special Term. We believe this disposition to be incorrect.

Several objections to the section were advanced. It was claimed that the statute does not represent a valid exercise of police power. The argument in this connection is that tattooing is a vocation which, though it may be regulated, may not be prohibited. There is no constitutional prohibition against banning a practice that is harmful or injurious (Lincoln Union v. Northwestern Co., 335 U. S. 525). Nor is there any distinction between regulation and prohibition (Ferguson v. Skrupa, 372 U. S. 726, 732). What is harmful or injurious is a matter for the Legislature rather than the courts (Ferguson v. Skrupa, supra). Conceding these general provisions, plaintiffs contend that the particular delegation of authority to the New York City Board of Health to add provisions to the Health Code does not go to that extent. The section vesting power (New York City Charter, § 558) gives the board power “to alter, amend or repeal any part of the health code, and may therein publish additional provisions for the security of life and health in the city ’ ’.

The record shows, to our minds conclusively, that the prohibition of lay tattooing was an advisable procedure for the security of life and health. It was established that hepatitis, a serious disease of the blood for which there is no known cure, is caused by a virus. This virus, which lives in the blood of infected persons, is transmitted to the healthy by injection into their blood or tissue of the blood or blood products of the infected. Such transmissions occur to persons who have been tattooed seven times more frequently than they occur in persons who have not been tattooed. Concededly, restricting the spread of hepatitis is a proper subject of Health Code regulations. And it would appear to be uncontradictable that tattooing is a source of the spread of this dread disease. It would therefore follow indisputably that the control of tattooing comes well within the field of securing the health of the community.

We have seen that once this is determined, the method of control is for the legislative body. But even if their wisdom in providing for prohibition rather than regulation was a proper subject of judicial inquiry, the evidence submitted establishes that the course taken was the only feasible one. Prior to the enactment of the present section 181.15, the conditions resulting from the use of tattoo establishments were known. In 1959 a predecessor section, having the same number, was promulgated. It set up standards for the establishments that would tend to insure aseptic conditions. Conferences were had with all proprietors of such establishments and promises were secured of co-operation. The incidence of infection was not lowered. The evidence further reveals that it is too much to expect that untrained personnel will adhere to the sanitary practices that are necessary to provide a reasonable insurance against infection.

Furthermore, factors that could conceivably affect determination if the legislation concerned a necessary, useful or desirable occupation are lacking. It is still true that there is no accounting for taste, but the decoration, so-called, of the human body by tattoo designs is, in our culture, a barbaric survival, often associated with a morbid or abnormal personality.

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Of the many other points raised at Special Term and on this appeal, we find but two worthy of mention. It is of no significance that the two proprietors who are the plaintiffs are able and willing to meet the sanitary standards that would provide a reasonable expectation of immunity from infection. It is not they who are on trial but the trade they are engaged in. And as it is the practices of the trade that endanger the community, they must suffer the same fate despite their ability to rise above their fellow practitioners. The test has always been whether the statute ‘ ‘ has at least in fact some relation to the public health, that the public health is the end actually aimed at, and that it is appropriate and adapted to that end.” (See Matter of Jacobs, 98 N. Y. 98, 115.) If the statute meets that test, individual exceptions cannot prevail against it. The goal of the common welfare as the test of constitutionality of police power regulation has not changed, though the concept of what is reasonably necessary or appropriate has.

Lastly, it is claimed that the exception allowing tattooing by a physician for medical purposes is so vague that it might invalidate the entire statute. While we do not subscribe to the view that the provision is vague, even if it were that would be of no moment in this case. The provision is, beyond doubt, a separable portion of the statute and its possible infirmity cannot affect the balance of the statute (City Bank Farmers’ Trust Co. v. New York Cent. R. R. Co., 253 N. Y. 49, 55; People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48, 60; People v. Mancuso, 255 N. Y. 463, 473).

The judgment for plaintiffs should be reversed on the law and the facts and judgment granted to defendants, without costs.

The evidence showed that one third of the admissions to the United States Public Health Hospital at Lexington, Kentucky, for drug addiction were tattooed. If the addict was also a sexual deviant, the incidence of tattooing was markedly higher.