The opinion
Root 4 You LLC v New York City Bd. of Health
2025 NY Slip Op 31015(U)
March 31, 2025
Supreme Court, New York County
Docket Number: Index No. 157613/2024
Judge: Lyle E. Frank
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 157613/2024
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 03/31/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
---------------------------------------------------------------------------------X INDEX NO. 157613/2024
ROOT 4 YOU LLC,
MOTION DATE 08/19/2024
Petitioner,
MOTION SEQ. NO. 001
-v-
NEW YORK CITY BOARD OF HEALTH, NEW YORK CITY
DEPARTMENT OF HEALTH AND MENTAL HYGIENE, DECISION + ORDER ON
ASHWIN VASAN MOTION
Respondent.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 22, 23, 24, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 51
were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) .
Upon the foregoing documents, the petition is denied.
Background
Root 4 You LLC d/b/a Here & Now (“Petitioner”) formerly operated a café on Allen
Street, which sold Kava and Kratom (herbal extracts) in tea form. They applied for a permit from
the New York City Department of Health and Mental Hygiene (“DOHMH”, collectively with
New York City Board of Health and Ashwin Vasan “Respondents”) in December of 2022, and
they began to operate provisionally until a pre-permit inspection could be conducted. In July of
2023, the inspection was held, during which the Petitioner was informed that Kava and Kratom
are considered adulterants, and therefore the teas could not be sold. The substances were thrown
out and shortly thereafter the permit was granted.
DOHMH issued two summonses to Petitioner (one in July 2023 and one in November
2023) alleging that they were violating the city Health Code by serving adulterated beverages.
Both of these summonses resulted in an OATH hearing that found in Petitioner’s favor.
157613/2024 ROOT 4 YOU LLC vs. NEW YORK CITY BOARD OF HEALTH ET AL Page 1 of 5
Motion No. 001
1 of 5
[* 1]
INDEX NO. 157613/2024
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 03/31/2025
DOHMH appealed that November hearing, which was affirmed. In the same month, DOHMH
issued a closure order. This resulted in an OATH trial, in which Judge Lee recommended that the
closure order be lifted based on procedural grounds. A few days before the decision in the
OATH trial was issued, DOHMH denied Petitioner’s application to renew their food service
establishment permit. Petitioner appealed this denial to the New York City Board of Health
(“BOH”), who issued an order stating that Petitioner could not sell the Kava and Kratom teas as
it is considered an adulterated substance under the Health Code. The present petition challenging
this final determination was timely brought. Petitioner seeks a declaratory judgment that the
denial of their permit application was arbitrary and capricious, and that Kava and Kratom teas
are single-ingredient foods not adulterated beverages.
Standard of Review
A party may bring an Article 78 petition to challenge the final determination of an
administrative agency. CPLR § 7801(1). A court must give great deference to the agency’s
decision and cannot “interfere unless there is no rational basis for the exercise of discretion or the
action complained of is arbitrary and capricious.” Pell v. Board of Education, 34 N.Y.2d 222,
231 (1974). Judicial review is also available if the agency’s determination was “contrary to law
or procedure.” Barrett Japaning, Inc. v. Bialobroda, 190 A.D.3d 544, 545 (1st Dept. 2021). An
action is irrational or arbitrary and capricious if “it is taken without sound basis in reason or
regard to the facts.” Matter of A.Z. v. City Univ. of N.Y., Hunter Coll., 197 A.D.3d 1027, 1027
(1st Dept. 2021).
Discussion
Petitioner’s permit renewal application was denied pursuant to the Health Code because
they were “offering and/or selling food to the public containing kava and kratom, which are
157613/2024 ROOT 4 YOU LLC vs. NEW YORK CITY BOARD OF HEALTH ET AL Page 2 of 5
Motion No. 001
2 of 5
[* 2]
INDEX NO. 157613/2024
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 03/31/2025
unapproved food additives, thereby rendering such food to be adulterated and thereby creating
and/or maintaining a public health nuisance condition.” Petitioner argues that such a decision is
arbitrary and capricious because 1) mixing kava and kratom with water is a single ingredient
food, not an adulterated beverage; and 2) the decision goes against the OATH findings that kava
and kratom are not injurious to public health. Respondents argue that their determination that
kava and kratom are adulterated under the Health Code and injurious to health is rational.
DOHMH Determination that Kava and Kratom Are Injurious to Health Was Not Arbitrary and
Capricious
Health Code § 71.11 states that DOHMH may condemn material when, in its opinion, “a
food, drug or cosmetic is unfit for consumption or use or is adulterated or otherwise constitutes a
danger or is prejudicial to the public health.” Petitioner and Respondents disagree on whether or
not Kava and Kratom are injurious to human health. But the Health Code clearly grants DOHMH
the power to condemn a food when, “in its opinion”, the substance is prejudicial to the public
health. Here both sides have put forth material regarding their positions on the safety (or lack
thereof) for Kava and Kratom. When an agency’s determination “is supported by facts or
reasonable inferences that can be drawn from the record and has a rational basis in the law, it
must be confirmed.” American Tel. & Tel. Co. v. State Tax Com., 61 N.Y.2d 393, 400 (1984).
Here, the determination by DOHMH that Kava and Kratom are prejudicial to the public
health can be supported by facts or reasonable inferences from the record, and therefore this
Court must give that decision deference. Furthermore, Health Code § 5.17(c) permits the
Commissioner to “impose whatever conditions he or she deems necessary for the continued safe
operation of the permitted business” after an OATH judge recommends reopening a business.
The conditions that the Commissioner put on reopening after the November trial was that
157613/2024 ROOT 4 YOU LLC vs. NEW YORK CITY BOARD OF HEALTH ET AL Page 3 of 5
Motion No. 001
3 of 5
[* 3]
INDEX NO. 157613/2024
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 03/31/2025
Petitioner refrain from selling Kava and Kratom. Despite the OATH findings during the
hearings, this condition was a valid exercise of the Commissioner’s authority under the Health
Code.
DOHMH Determination that Kava and Kratom Are Adulterants Was Not Arbitrary and
Capricious
Another issue in this matter is whether DOHMH’s decision to label Kava and Kratom tea
as food adulterants (rather than single-ingredient food) was arbitrary and capricious. Petitioner
points to FDA guidance that does not consider Kava and Kratom to be food adulterants when
steeped in water alone as evidence that the DOHMH erred in considering the teas in question to
be adulterated. They also cite to several cases dealing with the definition of food adulterant under
the Federal Food and Drug Act. Respondents in turn argue that the FDA’s position is irrelevant
and point to the Health Code, which in § 71.05(c) permits DOHMH to make a determination that
a food is adulterated if it “bears or contains any poisonous or deleterious substance which may
render it injurious to health.” Because, as discussed above, DOHMH is entitled to deference on
their decision that Kava and Kratom are injurious to health, they are likewise entitled to
deference on their determination that the substances are adulterants because the tea contains a
substance that renders it injurious to health. The FDA’s stance on adulterants under the Federal
Food and Drug Act is largely irrelevant to the DOHMH’s interpretation of the New York City
Health Code. An agency’s interpretation of their own regulations is “entitled to a high degree of
judicial deference.” Matter of Isabella Geriatric Ctr., Inc. v. Novello, 38 A.D.3d 356, 357 (1st
Dept. 2007).
Here, under the standard of an Article 78 petition, it has not been shown that the
DOHMH arbitrarily and capriciously decided that Kava and Kratom are injurious to public
157613/2024 ROOT 4 YOU LLC vs. NEW YORK CITY BOARD OF HEALTH ET AL Page 4 of 5
Motion No. 001
4 of 5
[* 4]
INDEX NO. 157613/2024
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 03/31/2025
health, and that tea made from these substances is adulterated under the meaning of the Health
Code. These decisions do lead to a somewhat strange situation in which a person in New York
City may buy pre-packaged Kava or Kratom tea bags from a pharmacy, but not pre-brewed Kava
or Kratom tea in a café. But ultimately, the determinations by DOHMH cannot be said to be
arbitrary and capricious under the Article 78 standard. Because the final determination being
challenged in the petition was to deny a permit renewal, based on DOHMH’s determinations on
the safety of Kava and Kratom, petitioner has failed to meet their burden. Accordingly, it is
hereby
ADJUDGED that the petition is denied.
3/31/2025
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□ □
GRANTED X DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
157613/2024 ROOT 4 YOU LLC vs. NEW YORK CITY BOARD OF HEALTH ET AL Page 5 of 5
Motion No. 001
5 of 5
[* 5]