Opinion
January 10, 1985
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
This is an action for declaratory and injunctive relief by plaintiffs, owners of certain retail shops in which are sold, as here relevant, smoking accessories, which seeks a declaration that Local Law No. 23 of 1983 is invalid and unenforceable. Local Law No. 23 in essence prohibits sale or display of various items which are characterized as drug paraphernalia.
The dispositive issue on this appeal is raised by the contention of plaintiffs, rejected in Special Term, that Local Law No. 23 is invalid in that it enters into an area that has been preempted by article 39 of the General Business Law, which regulates in detail the sale and display of drug paraphernalia.
It is agreed that Local Law No. 23 is in all essential respects identical with local laws as to which essentially the same issue was recently addressed by the Appellate Division, Second Department, in Dougal v. County of Suffolk ( 102 A.D.2d 531). We are in agreement with the analysis set forth in that opinion and the conclusions reached. Accordingly, we hold that Local Law No. 23 improperly undertakes to prohibit activities in an area that has been preempted by State legislation, article 39 of the General Business Law. The local law is accordingly declared invalid and unenforceable.
Concur — Sandler, J.P., Sullivan, Carro and Milonas, JJ. [ 121 Misc.2d 1030.]