23-24 94th St. Grocery Corp. v. New York City Board of Health: Does the Use of Graphic Images Overly Burden Tobacco Companies?

Matthea Ross, Albany Government Law Review Member


A case was recently decided in the United States District Court as to whether a New York City health regulation that uses graphic images to depict the dangers of smoking is valid when it creates a burden on the ability of cigarette companies and retailers to promote their products.[1] The regulation was created in late 2009 in response to the health dangers related to the use of tobacco.[2] The regulation was designed to inform purchasers of the dangers of using tobacco products through the use of graphic images.[3] In June of 2010, three cigarette companies sued New York City, claiming that the regulation was preempted by federal law and therefore could not be enforced.[4] On December 29, 2010, the court decided that the law did create a burden on the cigarette companies and retailers to promote cigarettes and that these burdens could only be imposed by the federal government.[5] Even though there are obvious dangers associated with smoking and the New York City law is a commendable effort to counter those dangers, the court nevertheless found that the federal law as codified in the Federal Cigarette Labeling and Advertising Act (the “Labeling Act”) preempted the New York City law, thereby making it unenforceable.[6]

Continue reading “23-24 94th St. Grocery Corp. v. New York City Board of Health: Does the Use of Graphic Images Overly Burden Tobacco Companies?”

Taking the Fight Against Cyber-Bullies Outside The School House Gate

Michael Telfer, Editing Chair, Albany Government Law Review Member

With the widespread use of the Internet in the last decade and the creation of websites such as Facebook and YouTube, the ability for people to connect with one another across the globe and with people they have lost touch with has been enthusiastically welcomed.  With the great benefits that new technology brings, also comes the ability for people to use it to the detriment of others.

Bullying has existed “as long as schools have,” but today bullying is no longer confined to the school house gates or even prevented at one’s front door, as it can “follow students to their rooms . . . their cell phones[,] or online.”[1] Through cyber-bullying, bullies can now “harass, threaten or intimidate others” by “e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems.”[2] Specifically, bullies engage in cyber-bullying by videotaping their peers with their cell phones and posting embarrassing videos online through YouTube, creating fake Facebook profiles to steal the identify of other students,[3] and posting embarrassing comments on Facebook to humiliate other students.[4] Reports of students who have been victims of cyber-bullying have become nationwide news stories, such as the suicide of a freshman at Rutgers University in New Jersey who “jumped to his death . . . after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.”[5]

As has been addressed in a previous Fireplace article, the issue of whether school districts can punish students for cyber-bullying when the student’s right to free speech is implicated is not uniformly defined.[6] Due to the fact that these incidents exist off of school grounds, the ability for schools to take action against cyber-bullies is limited because action taken by a school district can only be justified if the student’s online speech “materially disrupts class work or involves substantial disorder o[f] the rights of others.”[7] The uncertainty of the state of the law is not helped by the fact that the Supreme Court has “not addressed online student speech.”[8] The ability of schools to combat cyber-bullying has been tested in at least one case in California where a parent had his child’s suspension, due to the posting of a video on YouTube, overturned when the court found the disruption to the school caused by the video posting was “only minimal.”[9]

Since cyber-bullying usually impacts one student’s emotional well being and does not affect the larger school environment, students may be unable to rely on their school to protect them if cyber-bullying happens outside of school, which in most cases it does.   The question this article seeks to answer is whether victims of cyber-bullying have legal remedies through either criminal or civil laws of New York.

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Horsing Around With Conservation Part Two: A Roofless Historical Structure in a Brooklyn Park Hosts Public Outdoor Recreation, But State Parks Claims Otherwise

Andrew Stengel, Albany Government Law Review Member[1]


In a recent post, Horsing Around with Conservation, I explored whether a carousel planned for a park in Brooklyn, New York, violated the terms of a federal Land and Water Conservation Fund (“LWCF”) grant and New York State law.[2] I concluded that the carousel likely violated both.  A second issue, which concerns Empire Fulton Ferry Park (“EFFP”), the same nine-acre park covered in the same LWCF grant, involves an important historical structure called the Tobacco Warehouse.

There are actually two historic structures within EFFP, the Empire Stores, a four-story brick building, built in 1869, and the Tobacco Warehouse, a roofless, four-walled brick structure from the same era.[3] The Empire Stores, which is roofed, is part of the Endangered Buildings Initiative of the New York Landmarks Conservancy.[4] The roofless Tobacco Warehouse, however, is used as “an outdoor venue for exhibits and entertainment”[5] that is open to the public when not rented for private use.[6]

In 2001, National Parks Service (“NPS”) approved a LWCF grant in the amount of $275,525 for the Cove Area Improvement in EFFP.[7] Unexplored in my previous post is the original boundary map for the LWCF grant, which incorporated all of EFFP including the Empire Stores and Tobacco Warehouse.[8] The map detailed the area covered by the grant, which, like all LWCF projects, included an assurance in perpetuity that the land and real property contained within will not be converted.[9] However, on November 5, 2008, the New York State Office of Parks, Recreation, and Historic Preservation (“OPRHP”) wrote to NPS to request that the park’s boundary map be amended.[10] The OPRHP letter stated: “These former warehouse buildings [the Empire Stores and Tobacco Warehouse] are not suitable for nor used by the public for outdoor recreational opportunities in the park.[11]

Continue reading “Horsing Around With Conservation Part Two: A Roofless Historical Structure in a Brooklyn Park Hosts Public Outdoor Recreation, But State Parks Claims Otherwise”

A Policy Not Worth the Paper Its Written On: Why Further Legislation is Needed to Stop the NYPD’s Continued Use of Paper Records for its Stop and Frisk Database

Daniel Levin, Albany Government Law Review Member


“[K]eeping records on innocent people is not the American way,” said New York State Assemblyman Richard Brodsky, as he urged Governor David Paterson to sign into law a bill prohibiting the use of an electronic database containing the identities of innocent stop and frisk individuals.[1] On July 16, 2010, Governor Paterson signed that bill into law (S.7945-A/A.11177-A), which amends section 140.50 of the Criminal Procedure Law to prohibit the electronic recording of certain identifying information of a person subjected to temporary questioning or search in a public place.[2] Opponents of the legislation argue that the law makes New Yorkers less safe by letting criminals go free.[3] At the same time, proponents of the legislation argue that it safeguards greater individual freedom and liberty from the government while maintaining the police’s ability to use the same crime-fighting techniques they have deemed effective in policing the streets.[4] While the legislation is certainly a step in the right direction, it does not go far enough in safeguarding individual liberty as the New York City Police Department (hereinafter “NYPD”) has already taken steps to replace their computerized stop and frisk database with a more primitive paper form.[5]

I. Database Origin

On September 6, 2001, New York City Mayor Michael Bloomberg signed into law Bill Number 55 of 2001, which required the NYPD to submit quarterly reports to the City Council containing information about the NYPD’s stop and frisk policies.  In the quarterly reports, the NYPD was required to submit the number of stop, question, or frisks conducted, the breakdown of these stops by race and gender, the number of arrests and summonses resulting from stops, the race and gender of each person arrested or given a summons resulting from a stop, and a categorical reason for each stop, question, or frisk.[6] The law became effective in 2002.[7]

The purpose of the law was to give the City Council greater oversight over the NYPD so that it could address public concerns about policing, specifically whether the NYPD engaged in racial profiling.[8] The Council aimed to determine the effectiveness of the NYPD’s stop and frisks as well as analyze whether there were racial disparities for individuals stopped and frisked, or if race or gender played a factor in an individual being stopped by the police.[9] In order to comply with this directive, the NYPD created a stop-and-frisk electronic database containing the identity of each person stopped, frisked, or questioned by the police.[10]

Continue reading “A Policy Not Worth the Paper Its Written On: Why Further Legislation is Needed to Stop the NYPD’s Continued Use of Paper Records for its Stop and Frisk Database”