Amid this covid pandemic New York City Mayor Bill de Blasio, as well as New York State Governor Andrew Cuomo, issued emergency executive orders mandating that non-essential retail businesses shut down. As this pandemic drags on, and in the face of overwhelming evidence that the transmission curve has been flattened, the continuing of the shut down edict becomes more and more ridiculous. Couple that with small business owners losing their livelihoods, they have to choose to either follow a constitutionally questionable “order” or feed their families and open up their businesses. Of course, the choice is clear.
But what happens when armed cops come-a-knocking? In NY City, what happens is that the business owner, plus anyone there working at the time, will be charged with violating the provisions of an emergency order under NYC Administrative Code 3-108.
NYC Admin. Code prohibits any person from violating the terms of an emergency order. It is a Class “B” misdemeanor, punishable by a $500.00 file, 90 days imprisonment, or both.
If you are charged under NYC Administrative Code 3-108 it is advisable to NOT plead guilty and fight the charge. There are many defenses to such a charge. First off, as a condition precedent to issuing or enforcing an emergency order, the mayor mus find that “there has been an act of violence or a flagrant and substantial defiance of or resistance to a lawful exercise of public authority, and that, partly on account thereof, there is reason to believe that there exists a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to property, all of which constitutes a threat to public peace or order and to the general welfare of the city or a part or parts thereof.” See, NYC Admin. Code Sec. 3-104. Here, the potential threat of spreading a disease through voluntary assembly and contracting does not rise to the level of an act of violence, flagrant defiance to a public authority, nor any reason to believe that there exists a clear and present danger of riot, public disorder, injury to persons, or a threat to public peace.
In other words, the emergency order exceeds the authority the mayor has to issue or enforce it.
There are other reasons to fight a NYC Administrative Code 3-108 charge. Such an edict, ordering the shut down of a business, arguably violates numerous provisions of the US Constitution. These include:
- 1st Amendment freedom of speech and assembly
- Article 1, Section 8, Clause 3 of the US Constitution, known as the “Commerce Clause.”
- 5th Amendment right against private property not being taken for public use
- 14th Amendment right to due process
Have you been issued a summons under NYC Administrative Code 3-108? If so, contact our attorneys now. We talk to people like you with tickets and summons under NYC and NYS administrative and statutory law every day, and we’d love to speak to you and answer any questions that you may have!