Hearings on the above-captioned matter were held on September 3, 2013 and on October 8,

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1 CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS X THE DEPARTMENT OF CONSUMER AFFAIRS, DECISION AND ORDER Violation No.: LL against Complainant, Respondent s Address: 101 East Broadway New York, NY MIN RONG SUPERMARKET, INC., Respondent X Hearings on the above-captioned matter were held on September 3, 2013 and on October 8, Appearances: For the Department: Inspector H. Nasralla. For the Respondent: Stephen Lin, manager. Also present were Language Line translators Jian Hua Li on September 3, 2103 (#4114) and Michelle Fouquet (#10006) on October 8, The respondent is charged with violating the following: 1) New York City Administrative Code ( Administrative Code ) Section (b), by maintaining an oversized stoop line stand without a license to do so (1 count); and 2) Administrative Code Section (c) by permitting another person to use space adjacent to respondent s store for the purpose of selling and displaying merchandise (1 count). Based on the evidence in this case, I RECOMMEND the following: Findings of Fact On the date of the inspection, July 15, 2013, the respondent operated a stoop line stand in front of its store which included produce displayed on two cardboard boxes in front of the stand. The total width of the stand, including the 1 By Interim Order, dated September 20, 2013, a continued hearing was held on October 8, 2013 to hear testimony and receive other evidence regarding the measurements taken by the Department during the inspection.

2 boxes was 5 feet 4 inches. 2 The sidewalk was approximately 11 feet wide. On that date, the wife of one of the respondent s employees, who was not employed by respondent, assisted her husband by working at the stand. Opinion Charge 1 (Administrative Code Section (b)) The Department established the charge by a preponderance of the credible evidence. The inspector observed produce being displayed and offered for sale in front of the store on a stand. It was undisputed that produce was also displayed on a cardboard box directly in front of the stand. A Department-certified measuring tape was used and confirmed the total width of the stand (including the boxes) as 5 feet 4 inches. 3 Mr. Lin argued that the cardboard boxes cannot be considered part of the stand. However, these boxes are elevated structures upon which the produce was displayed. 4 It is determined that the box was used as a stand for purposes Administrative Code Section (a) 5 and that it was thus proper to consider it 2 The inspector s motion to amend the Notice of Hearing, to consider the width of the stoop line stand as 5 feet 4 inches, instead of 5 feet as written, was granted over the respondent s objection. The amendment conformed to the evidence offered at the hearing and a proper determination of the Notice of Hearing is facilitated by the amendment. See Title 6 of the Rules of the City of New York ( 6 RCNY ) Sections 6-24(b) and (c). The respondent was offered the opportunity to request an adjournment to prepare for the amendment but declined. 3 The width of a stoop line stand may not exceed 5 feet where the sidewalk is at least 16 feet wide but may be up to 10 feet wide in an M1, M2 or M3 zoning district if the building occupant was licensed before September 1, 2012 and if the sidewalk is at least 21 feet wide. Administrative Code Section (b). Departmental records verify that the respondent s license was issued on December 22, 2010 and renewed on February 3, The sidewalk, however, was less than 21 feet wide. The inspector admitted to not having taken the measurement from the front of the stand to the curb line but I defer to his estimate that it was approximately the same distance as the width as the stand. See Miller v. City of New York, 104 A.D. 33 (2d Dept. 1905) (measurement estimates are admissible as opinion evidence, to be judged by their weight). Given that the stand was measured at 5 feet 4 inches wide, the portion of the sidewalk in front of the stand would have to be at least 15 feet 8 inches wide in order for the stand to be permissible. A sidewalk of 10 or 11 feet falls well short of the necessary width. 4 The Administrative Code does not define the word stand. However, nothing in the Code suggests that the word stand means something other than its standard definition, which includes a structure... on which people can sit or stand... a small table or piece of furniture where articles may be placed or stored... a supporting framework... [a] counter from which goods may be sold... Collins English Dictionary 10 th Ed. (2009) (found at < on September 17, 2013). 5 Where statutory language is clear and unambiguous, its plain meaning must be given effect. See, Patrolmen s Benevolent Assoc. v. City of New York, 41 N.Y.2d 205 (1976). An agency s interpretation of the legislation under which it functions will be given special deference if that

3 when measuring the overall width of the stoop line stand. The charge has not been rebutted and, accordingly, it will be sustained. Mr. Lin explained, in detail and with consistency, that the boxes were placed in front of the wooden stand only temporarily and that they were taken away from the stand the same day as the inspection. The inspector did not challenge this evidence, although given an opportunity to do so. The prompt correction is noted. Charge 2 (Administrative Code Section (c)) The Department did not establish the charge by a preponderance of the credible evidence. The inspector argued that the respondent leased the stoop line stand to another simply because he observed a man and a woman accepting money at the stand. While this may violate other laws or rules, 6 it is not evidence that the people working the stand were employed by someone other than the respondent or that the stand belonged to someone other than the respondent. Mr. Lin explained that the woman in the picture is not an employee but that she is the wife of the man in the picture, who is respondent s employee. The inspector did not rebut this evidence, although given an opportunity to do so. The inspector also argued that the violation is established because the respondent permitted the employee s wife to work at the stand. Administrative Code Section (c) states, in relevant part, that it is unlawful for any person to lease or permit any other person to use any space on the sidewalk located adjacent to such store as a stoop line stand. This provision, however, cannot be read to prohibit the wife from using the respondent s own stoop line stand. 7 The wife became the respondent s effective agent when she worked at the stand without pay and to the respondent s benefit. Since stoop line stand licensees are responsible for the activities of both their employees and their agents, 8 the wife cannot be considered an other person operating the stand. Under these unique construction is not irrational or unreasonable. See, Albano v. Kirby, 36 N.Y.2d 526 (1975). 6 See, e.g., 6 RCNY Section (e). 7 Indeed, the language of the law and its legislative history suggest only a prohibition on the use of an abutting sidewalk by someone who operates their own stoop line stands, as opposed to stands owned by the occupant of the building. See New York City Council Committee on Consumer Affairs, Report of the Legal Services Division, Int. No. 625 (September 23, 1983) ( a merchant is entitled to erect a stand at the front of his place of business... Int. No. 625 places a strict prohibition upon any store... from leasing [out] the space abutting their premises, restricting such use to the occupants themselves ). 8 Occupants of stores who are licensed to maintain stoop line stands in front of such stores and their employees or agents shall only accept payment inside of such stores[.] 6 RCNY Section (e) (emphasis added).

4 circumstances, the violation has not been established. Accordingly, it will be dismissed. ORDER The respondent is found guilty with respect to Charge 1 and is hereby ordered to pay a FINE of $1,100, which is immediately due and owing, as follows: Charge 1: $1,100 ($1,000 plus $100 a day for one day) The respondent is found not guilty with respect to the Charge 2 and it is hereby dismissed. This constitutes the recommendation of the Administrative Law Judge. Richard J. Zeitler, Jr. Administrative Law Judge DECISION AND ORDER The recommendation of the Administrative Law Judge is approved. This constitutes the Decision and Order of the Department. Failure to comply with this order within thirty (30) days may result in the suspension of any Department of Consumer Affairs licenses held by the respondent. Date: 22 October 2013 James M. Plotkin Deputy Director of Adjudication Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY 10004

5 APPEAL INFORMATION You have 30 days to file an APPEAL of this decision. You must include with your appeal all of the following: (1) a check or money order payable to DCA for the sum of $25; and (2) a check or money order payable to DCA for the amount of the fine imposed by the decision, or an application for a waiver of the requirement to pay the fine as a requisite for an appeal, based upon financial hardship. The application must be supported by evidence of financial hardship, including the most recent tax returns you have filed. BY Send your appeal to myappeal@dca.nyc.gov and, at the same time, mail the $25 appeal fee to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY BY REGULAR MAIL: Mail your appeal and the $25 appeal fee to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY You must also mail a copy of your appeal to: DCA, Legal Division, 42 Broadway, 9 th Floor, New York, NY Make sure to include in your appeal some indication or proof that you have sent a copy of the appeal to DCA s Legal Division. You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY