Dep t of Buildings v. Owners, Occupants and Mortgagees of 700 East 17 th Street, Brooklyn

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1 Dep t of Buildings v. Owners, Occupants and Mortgagees of 700 East 17 th Street, Brooklyn OATH Index No. 1905/01 (February 7, 2002), remanded, Comm r Dec. (June 4, 2002), appended Disposition: Recommended dismissal; request for padlock order pursuant to Administrative Code (b) denied. Commissioner remands for factual hearing on two issues raised by subsequent letters from community members to the Commissioner, but not raised nor addressed at trial: (1) whether alleged secondary effects of shop (traffic, noise, etc.) come within the nuisance exception to home occupation (zoning resolution 12-10(b)(6)); and (2) whether any of the shop s employees was not a resident of the premises (and therefore the home occupation designation would not apply). Discussion of Listed Topics: 1 & 2: The petitioner has failed to establish that the respondent s operation of a wig shop in the cellar of a one-family house located within a R1-2 residential district constitutes a violation of the Zoning Resolution. The testimony of the respondent and the Department of Buildings Inspector described a business consistent with Zoning Resolution section 12-10's definition of a home occupation, and thus a permissible accessory use. See disposition for discussion of Commissioner s remand. CHRISTOPHER D. KERR, Administrative Law Judge This is a zoning violation proceeding brought pursuant to section (d) of the Administrative Code. The petitioner, Department of Buildings, alleges that the basement/cellar of the premises at 700 East 17th Street, Brooklyn, New York 11230, block 5237, lot 142, is being occupied for a commercial use, to wit, a business or professional office or a wig shop, although the premises are located in an R1-2 residential zone where such commercial use is not permitted. The petitioner seeks an order of closure by which the portions of the property used for such illegal purposes would be sealed pursuant to the padlock law, N.Y.C. Admin. Code (b) (Lenz & Riecker CD-ROM 2001). Proper service upon the named respondents of the original Petition and Notice of Hearing and the subsequent Notice of Adjournment was established by affidavits (Pet. Exs. 1-a through 1-n and 3-a through 3-k). Trial was held before me on November 21, Appearing for the petitioner was Inspector Russell Smith. Appearing for the respondents was Elon Emanuel, owner-occupant. Upon the basis of the credible evidence and testimony presented, I find that the petitioner has not established that the respondent s business is being operated in violation of the Zoning Resolution. Accordingly, I recommend that the petition and padlock order not be granted.

2 ANALYSIS Department of Buildings Inspector Russell Smith testified that, as the result of a complaint, he visited the respondent s premises on June 1, 1999, October 11, 2000, and April 17, His inspection reports and accompanying photographs were taken into evidence (Pet. Exs. 4, 5 and 6). On June 1, 1999, at approximately 10 a.m., he observed a one-family house, consisting of two stories, an attic and another level below the first floor. There was a main entrance to the house in front, and a second entrance on the north side of the house which led to the first floor and the level below it (Tr. 39). As he entered the lower level through this side entrance, he observed two work stations in the center equipped with computers, monitors and commercial phones with multiple lines. There was also a display rack with floodlights displaying toys. There were two beautician s chairs with mirrors. In the rear were a kitchen and a storage room. In the front, there was a walled-off utility room being used as an office (Tr ). Mr. Elon Emanuel, who was present for the inspection, told the Inspector that his wife owned a wig business which had a location at 16 th Avenue and 45 th Street, Brooklyn (Tr. 39). On October 11, 2000, Inspector Smith conducted a surveillance of the premises from his car, which was parked across the street. During a period of one hour and twenty-five to thirty minutes he observed more than eleven people entering and leaving the premises side door. Their visits lasted five or ten minutes (Tr. 51). Most of these people were carrying boxes of a size similar to those used for wigs (see photographs 5-c through 5-f, 5-i, 5-j, 5-m and 5-n). On April 17, 2001, Inspector Smith conducted a similar surveillance for about an hour. He observed approximately eight women coming and going from the premises. Three of these ladies left in their cars, one of which he photographed (Pet. Ex. 6-b). He then went to the side door, where he was buzzed in. He identified himself to the woman who answered the door and said that he was there to perform an inspection. From what he could see, the premises looked the same as they had in 1999 (Tr ). Aside from the woman to whom he spoke, there were two other women inside at work stations. These three women seemed younger than those he had seen going in and out. The woman who answered stated that he would have to make an appointment for the inspection. He responded by giving her a notice explaining how the owner of the premises could arrange such an appointment (Tr ). Department of Buildings records (Pet. Ex. 7) indicate that, as of May 8, 1997, there was no certificate of occupancy on file for these premises. An application to build a one-family house (Pet. Ex. 8) was filed in The Department s computer records, known as the Bin System (Pet. Ex. 9), show no filings or applications for new building or alterations on the premises since that system went into effect in the 1980's (Tr , 73).

3 The Inspector next identified the Sanborn map (Pet. Ex. 10) and Zoning Map 22c (Pet. Ex. 11) that include 700 East 17 th Street. These establish that the premises are located in an R1-2 residential district. Upon cross-examination, Inspector Smith testified that Mr. Emanuel said that he and his wife lived in the house. The Inspector did not know if anyone else lived there, or if any of the people he had seen or photographed were residents of the building (Tr ). On April 17, 2001, the woman he spoke with merely stated that he would have to come back when the owner was present (Tr ). Inspector Smith conceded that he had seen no evidence of manufacturing on the site or of goods made there for sale elsewhere. There were no external signs, displays or nameplates, and no materials were stored outside. There were no exterior alterations. He observed no offensive noises, smells, smoke, dust, heat, humidity, glare or other objectionable effects (Tr ). Asked by the Administrative Law Judge whether the alleged commercial use in the cellar could be sealed without interfering with access to the rest of the building, Inspector Smith replied that it would be impossible, due to the utility room in the rear, the electrical meters in the front and a sunken sewer (Tr. 110). On behalf of the respondents, Elon Emanuel testified that he lives in the house with his wife, Shevy, and their six children. Title to the house, which they purchased five years ago, is in his wife s name. It is a one-family house, comprising three floors, each approximately 1000 square feet, and a cellar (Tr ). His wife is self-employed, and runs a business, Shevy s, Inc., that provides wigs for cancer and alopecia patients, as well as for women who wear wigs for religious reasons. She operates basically from home. Her only two employees are their daughters, Adina and Michelle. The woman shown in the Inspector s photograph 5-c is Adina; Michelle is depicted in 5-h. The business does not advertise, but does receive medical referrals from various New York City cancer radiation facilities (Tr , ). The business does not sell any goods manufactured elsewhere. There are no exterior nameplates or displays, and no goods are visible from the outside. No materials or products are stored outside the location. Hair is put into a plastic mold and then fitted to the client s head. A wig may be loosened or tightened as a client loses or regrows natural hair. The process generates no offensive noise, vibration, smoke or dust (Tr ). The business would see six or seven clients a day during the three days a week it was open. When a client comes in, he or she is shown the various options and styles. A mold is taken, and a piece is made from the mold. When the client comes back, the piece is fitted and tailored to size. An appointment takes approximately an hour, although sometimes a customer would be there for only a few minutes for a measurement or to pick something up. This manufacturing process takes place right there, in a space Mr. Emanuel generous[ly] estimated at 420 square feet. No business is conducted elsewhere in the house (Tr , 127).

4 Mr. Emanuel continued that, at the time of the Inspector s October 11, 2000, observation of eleven customers, there would have been an unusual number of people because it was shortly before the Jewish holiday of Succoth, when they would be closed for ten days, so customers had to come either before or after the closure. Similarly, the Inspector s visit on April 17, 2001, fell at Passover (Tr ). Having listened to the definition contained in former section 401(5) of the General Business Law (Resp. Ex. F), Mr. Emanuel denied that any hairdressing and cosmetology takes place on the premises. Similarly, after listening to General Business Law section 431(4) (Resp. Ex. G), he denied that there is any barbering (Tr ) 1. The petitioner has established, and the respondent has not seriously disputed, that the premises here are located in a R1-2 residential zone, where commercial uses are not allowed. The question therefore comes down to whether, pursuant to Zoning Resolution (Pet. Ex. 14; Resp. Exs. B-D), the respondent s business constitutes a home occupation, and thus qualifies for exemption as an accessory use. The Zoning Resolution provides: (a) A home occupation is an accessory use which: (1) is clearly incidental to or secondary to the residential use of a dwelling unit or rooming unit; (2) is carried on within a dwelling unit, rooming unit, or accessory building b one or more occupants of such dwelling unit or rooming unit, except that, in connection with the practice of a profession, one person not residing in such dwelling unit or rooming unit may be employed; and (3) occupies not more than 25 percent of the total floor area of such dwelling unit or rooming unit and in no event more than 500 square feet of floor area. (b) In connection with the operation of a home occupation it shall not be permitted: (1) to sell articles produced elsewhere than on the premises; (2) to have exterior displays, or a display of goods visible from the outside; (3) to store materials or products outside of a principal or accessory building or other structure; (4) to display, in a R1 or R2 District, a nameplate or other sign except as permitted in connection with the practice of a profession; (5) to make external structural alterations which are not customary in residential buildings; or (6) to produce offensive noise, vibration, smoke, dust or other particulate matter, odorous matter, heat, humidity, glare, or other objectionable effects. Zon. Res (italics omitted). 1 See the fuller discussion at page 8, infra.

5 Upon the testimony of both Inspector Smith and Mr. Emanuel, I find that no violation has been established on the basis of the two foregoing provisions. However, the Zoning Resolution continues: (c) Home occupations include, but are not limited to: fine arts studios professional offices teaching of not more than four pupils simultaneously, or, in the case of musical instruction, of not more than a single pupil at a time. (d) However, home occupations shall not include: advertising or public relations agencies barber shops beauty parlors commercial stables or kennels depilatory, electrolysis, or similar offices interior decorators offices or workshops ophthalmic dispensing pharmacy real estate or insurance offices stockbrokers offices veterinary offices. Zon. Res (italics omitted; underlining added). The petitioner argues that the business being run at 700 East 17 th Street is essentially akin to a beauty parlor or barber shop, and therefore does not qualify as a home occupation. The Zoning Resolution does not define beauty parlor. Moreover, article 27 of the General Business Law now requires the licensing of an appearance enhancement business, rather than a beauty parlor. Compare Gen. Bus. Law 401(2) (effective July 5, 1994) with former Gen. Bus. Law 402(2) (repealed effective July 5, 1994). However, whether under the current law, which speaks of natural hair styling, 400(5) and 401(1), or the previous statute, which covered services to the hair of the head of any person or... the scalp, face, neck or arms of such person or... any similar work intended to enhance the appearance of such person, former 401(5), it is clear that the statute was intended to cover work performed on the client s physical person, not to the preparation of a wig. Similarly, General Business Law section 431(4) limits its definition of barbering to practices upon the head of a human being. Moreover, part 10 of the New York State Sanitary Code subjects beauty parlors and barber shops to an entire set of sanitary regulations that would not be applicable to a wig shop. 10 NYCRR (West CD-ROM 2001). In contrast, the respondent argues that the Zoning Resolution must be strictly construed, citing Dep t of Buildings v. Owner, Occupant and Mortgagee of 27 Osgood Avenue, Staten Island, New

6 York, OATH Index No. 1705/99 (Jan. 18, 2000). In 27 Osgood, the Administrative Law Judge found that a licensed mortgage broker was a permissible home occupation, notwithstanding the Department of Buildings contention that it was essentially similar to a real estate office, which is expressly forbidden by the Zoning Resolution. The judge noted that the two occupations were separately licensed by separate state agencies and governed by separate state laws. Id. at 18. Moreover, the language of the Zoning Resolution itself compels a finding for respondent in this instance. The portion of that lists the types of businesses which may properly constitute a home occupation, is permissive in its scope: Home occupations include, but are not limited to:.... Zon. Res (italics omitted; underlining added). In contrast, the provision setting forth those businesses that are banned as home occupations is clear and specific: However, home occupations shall not include:.... Zon. Res (italics omitted; underlining added). There is no limiting or qualifying language attached to this provision. Thus, a fair reading of it makes clear that while the City Planning Commission intended to give some guidance, without limitation, to those myriad types of businesses which might be validly accepted as home occupations, it clearly considered and then specified certain particular occupations which it intended to prohibit from being home occupations. 27 Osgood, OATH 1705/99, at Courts have long held that zoning restrictions, being in derogation of fundamental common-law property rights, should be strictly construed and any ambiguity resolved in favor of the property owner. Toys R Us v. Silva, 89 N.Y.2d 411, 654 N.Y.S.2d 100 (1996). Moreover, a strict construction of this provision is appropriate in light of the various interests at stake. While petitioner has an interest in maintaining the integrity of the Zoning Resolution and the residential character of the respondents neighborhood, the Emanuels have a strong individual property interest in the use of their home. Government padlocking of a room inside one s home is a highly intrusive act. Where, as here, there is no clear prohibition to Mrs. Emanuel s business use of their home, petitioner should not be able to create one by analogy or otherwise. The proper way to expand the list of banned home occupations is by amendment of the zoning resolution, with proper public notice and an opportunity for public participation. 27 Osgood, OATH 1705/99, at 22. In subdivision (b) of this section 2, the Zoning Resolution enumerates various activities which would not be permissible in connection with a home occupation. The petitioner has failed to show, through its inspector or other evidence, that the respondent has run afoul of these prohibitions. It was established, and conceded, that there was a certain amount of customer traffic to and from the premises, but there was nothing to indicate that this traffic was more than would be expected of a legitimate home occupation. I am aware of only one OATH precedent dealing with a business similar to the instant respondent s. In Dep t of Buildings v Jewel Avenue, Queens, OATH Index No. 913/96 (Feb. 20, 1996), the respondent was charged with operating a similar wig establishment in an R4B residential district. Although the respondent in that matter failed to appear for trial and a 2 See page 7, supra.

7 default was taken, the Administrative Law Judge took into evidence the respondent s letter denying the operation of a beauty parlor. It stated that the only services performed were the washing, styling, fitting and repair of wigs, and that the premises are 100% devoted to those women who must wear wigs for either religious or health reasons. The Administrative Law Judge concluded that this was a commercial purpose, whether it was a beauty parlor or a wig service as claimed. Id. at 11. In that case, however, the business was operating from a space formerly occupied, permissibly, by a dentist s office. There is no indication that the issue of a home occupation was ever raised. Upon the basis of the evidence and testimony presented, I find that the petitioner has not shown that the respondent s operation of a wig shop in the cellar of a one-family house located within a R1-2 residential district constitutes a violation of the Zoning Resolution. The testimony of the respondent and the Department of Buildings own inspector described a business consistent with Zoning Resolution section 12-10's definition of a home occupation, and thus a permissible accessory use. FINDINGS AND CONCLUSIONS 1. Service of the Petition and Notice of Hearing on respondents was proper. 2. The petitioner failed to establish that the use of the cellar of the respondent s premises at 700 East 17 th Street, Brooklyn, for the business of selling wigs constituted an illegal commercial use in violation of the Zoning Resolution. RECOMMENDATION Accordingly, I recommend that the petition seeking padlocking of a portion of the respondent s premises be dismissed. P R E S E N T : CHRISTOPHER D. KERR, Administrative Law Judge T O : RONNY A. LIVIAN, P.E., Commissioner, Department of Buildings A P P E A R A N C E S : CHI-KIT SIU, Attorney for Petitioner KLEIN & O BRIEN, LLP, Attorneys for Respondents, By: STUART A. KLEIN Memorandum Decision, June 4, 2002 CITY OF NEW YORK DEPARTMENT OF BUILDING

8 x : In the Matter of : : THE COMMERCIAL AND/OR : MANUFACTURING USE OF : 700 EAST 17 STREET, : BROOKLYN, NEW YORK : : x PATRICIA J. LANCASTER, Commissioner MEMORANDUM DECISION The Department commenced this case pursuant to the Padlock Law, section of the Administrative Code, by notice of petition and hearing dated April 20, The Department alleged that the premises at 700 East 17th Street, Brooklyn, was used as a wig shop, and further alleged that such use constituted an illegal commercial use of a residentially zoned premises. The Department therefore sought an order of closure of that premises pursuant to the Padlock Law. After a series of adjournments, trial before the Office of Administrative Trials and Hearings (OATH) was convened on November 21, Administrative Law Judge Christopher D. Kerr issued a report and recommendation to my predecessor on February 7, 2002, concluding that the premises is used as a wig shop, Shevy's Inc., but concluding further that the Department had failed to disprove the respondents' contention that Shevy's is a permissible "home occupation" pursuant to section of the Zoning Resolution. Of relevance here, Judge Kerr credited the respondents' unrebutted evidence that Shevy's employs no individual who does not reside at the premises. The question whether Shevy's falls within the "nuisance" exception to the home occupation rules (Zoning Resolution, (home

9 occupation, paragraph (b)(6))) was not raised at trial, and therefore Judge Kerr appropriately did not consider it. After Judge Kerr issued his report and recommendation, the Department received two letters from non-parties, urging that I reject the report and recommendation. The first, dated March 6, 2002, was from Bea Lurie, president of the Midwood Park Association. The second, dated March 11, 2002, was from Goldie Satt-Arrow. Those letters alleged that Shevy's draws patrons whose pedestrian and vehicular traffic bring noise and disruption to an otherwise quiet residential neighborhood. For example, this evidence, if credited, would indicate that Shevy's patrons often obstruct traffic by parking illegally on the two streets in the area, and by parking in residents' driveways. Other evidence related to deliveries to Shevy's, trash deposited by Shevy's, car horn noise from patrons' car services, and similar nuisances. In addition, the evidence, if credited, would indicate that one of the Shevy's employees is not in fact a resident of the premises. The nuisance exception to permissible home occupations provides: In connection with the operation of a home occupation, it shall not be permitted.. to produce offensive noise, vibration, smoke, dust or other particulate matter, odorous matter, heat, humidity, glare, or other objectionable effects. (Zoning Resolution (home occupations, paragraph (b)(6)).) Whether the facts of the present case fall within this nuisance exception requires determination of both factual and legal questions that are best decided by adversary adjudication. The factual extent of any noise and disruption, and the legal significance of those facts pursuant to paragraph (b)(6), should be determined through adversary trial proceedings. This is especially so in this case, because I have been advised by the Department's legal staff that there may be little if any authority or precedent construing paragraph (b)(6).

10 Subject to an exception not applicable here, all employees of a home occupation must reside in that home. (Zoning Resolution, (home occupations, paragraph (a)(2)).) At trial before Judge Kerr, the respondents adduced evidence that Shevy's is run by a resident of the premises, and that her only two employees are her daughters, who are also residents of the premises. However, the Department's investigation of the correspondence described above produced evidence that one Shevy's employee is not a relative, and does not live at the premises. This evidentiary conflict is best adjudicated by adversary trial proceedings. Therefore, I remand the case to OATH for additional evidence on two questions: whether Shevy's falls within the nuisance exception to the home occupation rule, and whether Shevy's employees reside at the premises. I opt to re-open the existing record, rather than commence a new proceeding on a new record, in the interests of economy - a new petition need not be drawn and served; the testimony given at the first hearing need not be repeated; and most of Judge Kerr's analysis need not be revisited. The Department is directed to serve copies of this decision by mail on the parties to this case, and to deliver a copy to OATH. The Department will then re-calendar the case, by conference call to OATH with counsel for the respondents who have previously appeared, with notice by mail of the trial date selected to those respondents who have not previously appeared. Such trial date will be not less than 30 days from the date of this decision. Finally, the Department will provide opposing counsel with copies of the two letters referred to above, no less than 20 days before the new trial date. The Department will redact from the letters personal information such as home addresses and telephone numbers, and addresses, before producing copies to counsel. PATRICIA J. LANCASTER, Commissioner, Department of Buildings