Charlotte's Fancy Restaurant Inc. v. City of New York Department of Consumer Affairs , 505 N.Y.S.2d 615 ( 1986 )

Kupferman, J. P.

(concurring in the dissent in part). I find that, as a matter of administrative law, I must concur in the dissent of my colleague, Kassal, J., and accept the administrative determination that a cabaret license is required. I also concur in the determination, from which there is no dissent, that the monetary penalty is both too severe and without foundation in the Administrative Code of the City of New York.

Administrative Code § 773-4.1 (b) (1) provides as follows: "1. to impose fines upon any person in violation of subdivision a of this section of one hundred dollars per violation per day for each and every day during which such person violates such subdivision.”

As can be seen, the fine provided for is up to $100 per day during the time the violation was in effect. There is no proof at all that there was a violation from the date of the citation to the date the hearing commenced, which was the basis for the penalty imposed. The evidence would show that on one night an inspector from the Department of Consumer Affairs found a violation. Other than that, two neighbors testified that, on occasion, there were violations. There should be a showing of specific times. Accordingly, the fine should be annulled and the matter remanded for further proceedings.