8th Street Parking Corp. v. Department of Consumer Affairs of City of New York

• Decision Date: 01 March 1990
• Citation: 159 A.D.2d 205,552 N.Y.S.2d 202
• Parties: In re 8TH STREET PARKING CORPORATION, Petitioner-Appellant, v. The DEPARTMENT OF CONSUMER AFFAIRS OF the CITY OF NEW YORK, et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 202

552 N.Y.S.2d 202

159 A.D.2d 205

In re 8TH STREET PARKING CORPORATION, Petitioner-Appellant, v. The DEPARTMENT OF CONSUMER AFFAIRS OF the CITY OF NEW YORK, et al., Respondents-Respondents.

Supreme Court, Appellate Division,

First Department.

March 1, 1990.

H.B. Tisch, New York City, for petitioner-appellant.

F.F. Caputo, New York City, for respondents-respondents.

Before MURPHY, P.J., and KUPFERMAN, ASCH, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper) of the Supreme Court, New York County (Diane Lebedeff, J.), entered January 5, 1989, vacated and the application determined as though the proceeding, pursuant to CPLR Article 78, had been transferred to this Court for determination and, upon such transfer and review, the decision of respondent dated July 6, 1987, following a hearing, which found that petitioner violated Department of Consumer Affairs General Regulations 15(2) by failing to allow a Department inspector into the non-public areas of its parking garage for the limited purpose of inspecting for compliance with the applicable regulations of the Department and the New York City Administrative Code, unanimously confirmed, and the petition dismissed, without costs.

Department of Consumer Affairs General Regulations 15(2), challenged by the petitioner as unconstitutional in its authorization of warrantless searches of the non-public areas of the licensee's premises, is constitutional. The parking garage industry is a pervasively regulated business, and the warrantless inspection authorized is necessary to further the regulatory scheme which is clearly informed by a substantial governmental interest (New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601). The determination that the regulation was violated is supported by the inspector's testimony as well as by the testimony of petitioner's employees that they denied the inspector access to the lower, non-public level of the garage and requested that he wait for their supervisor to accompany him. That testimony clearly constituted substantial evidence (300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 408 N.Y.S.2d 54, 379 N.E.2d 1183).