In the Matter of Boro Recycling, Inc., v. The New York City Department of Consumer Affairs, et al., Decision and Order dated April 8, 2011 (Sup Ct, Kings County 2011) (Kings Co. Index No. 22559-10)

The firm represented Boro Recycling, Inc. (“Boro”). For approximately 26 years, Boro had been providing services exclusively to “dealers” and “distributors” of beer and carbonated beverages packaged in returnable deposit “beverage containers” governed by New York State Environmental Conservation Law (“ECL”) §27-1001 et seq., better known as the New York State “Bottle Bill.” Boro commenced a Civil Practice Law and Rules (“CPLR”) article 78 proceeding against the Respondents The New York City Department of Consumer Affairs (“DCA”) and the New York City Business Integrity Commission (“BIC”). Boro commenced litigation to challenge the BIC’s charges against Boro for allegedly illegally collecting, disposing or removing “trade waste” without a license, and operating a business for the purpose of collecting “trade waste,” in violation of New York City Administrative Code (“Administrative Code”) §16-505(a) and (b).

Boro challenged the BIC administrative penalties and charges levied against Boro, arguing that its actions were not subject to Administrative Code §16-505 because the State of New York has preempted any local regulation regarding the control, distribution, collection and redemption of “beverage containers,” and refunds for beverage containers, through ECL Article 27, title 10. Boro also argued that the “beverage containers” at issue are not “trade waste,” and are never disregarded, rejected, spent, useless, worthless, or in excess, as contemplated by Administrative Code §16-505.

The Court agreed that the beverage containers at issues were not disregarded or worthless, and ultimately granted Boro’s Petition challenging the BIC determination, and annulled the BIC penalties and determinations against Boro.