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Stiff fines and a city Web site that exposes health code infractions at local restaurants do not violate the constitutional rights of restaurant owners, a federal magistrate judge in Brooklyn has ruled. Eastern District Magistrate Judge Robert M. Levy rejected arguments from a restaurant trade group that the fines, which were increased last year, were one element in a series of arbitrary policy decisions made by the city without proper legislative review. The trade group, the New York State Restaurant Association, argued that several factors — including the fines, other rules and the Web site — combined to create a valid due process claim. They also argued that publishing violations on a Web site subjected them to increased “derogatory publicity.” In dismissing the trade group’s suit in The New York State Restaurant Association v. New York City Department of Health and Mental Hygiene, 03 CV 2864, Magistrate Judge Levy said its “combination of factors” theory was “novel,” but did not withstand scrutiny. He declined to address the trade group’s state law claims, and an attorney for the group said the suit would soon be filed in state court. The Health Department’s inspection Web site opened in May 2000 and was immediately overwhelmed by New Yorkers who rushed at the chance to sift through the dirty secrets of their local haunts. On its first day, the site received thousands of visits an hour and became inoperable. Visitors to the site can search by restaurant or a city map. Any violations, such as mice or roaches or improperly refrigerated food, are noted, along with whether the problem was cured. From the day the site opened, restaurant owners complained that it was misleading. A restaurant can be cited for a vermin violation, for example, if a fly is found on food. Other violations, they complained, were made to seem more serious and pervasive than they were. The restaurants became more distressed a year ago when the city increased fines for violations and changed the way it calculated mistakes. In the past, for example, four improperly heated food items might have counted as one violation, but now each item counts as its own violation. The restaurant association sued after the new rules went into effect, saying the changes were motivated by the city’s desire to fill its coffers during a budget crisis, and not public health considerations. They argued that the new inspections would cost restaurants more money and hurt their businesses. They also argued that the rules violated state law, since either legislation or a formal rule-making process was required to change them. In dismissing the suit, Magistrate Judge Levy wrote: “[The plaintiffs] cite no authority for the proposition that a series of elements, no one of which would itself constitute a substantive due process violation, can combine to create such a violation. Regardless, even accepting plaintiff’s theory, plaintiffs’ complaint does not allege facts demonstrating government action that is ‘outrageously arbitrary,’ ‘conscience shocking’ or a ‘gross abuse of governmental authority.’ “ Corporation Counsel Michael A. Cardozo said in a statement that the Health Department’s policies were not arbitrary, but an effort “to protect the public health and enhance the safety of the City’s restaurants.” Robert Hermann of Thacher Proffitt & Wood, who represented the restaurant association, said the group would file its claims in state court within weeks. Last year, the Health Department’s site, www.ci.nyc.ny.us/html/doh/html/rii/, had a more modest viewership, at 87,600 hits for the year. Assistant Corporation Counsel Deborah Rand litigated the case for the city.

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