Appeal No. 1301027 NYC v. Louis Lilakos December 19, 2013 Respondent, premises owner, appeals from a recommended master decision and order sustaining the following notices of violation (NOVs) for the conditions observed by the issuing officer (IO) on June 13, 2013: Class 1 violation of Section 28-118.3.2 of the Administrative Code of the City of New York (Code) for occupancy in a manner contrary to that allowed by the certificate of occupancy (C of O) in that the building, legally authorized as a two-family dwelling, was illegally converted into transient use hostel type. 5 rooms with multiple beds housing overnight stay ; Class 1 violation of Section 1004.1.2 of the New York City Building Code (BC) for failure to comply with maximum floor area requirements per occupant load. 1 The IO noted that rooms were occupied by up to six occupants with bunk beds housing overnight stay; Class 1 violation of Code Section 28-301.1 for failure to maintain the building in a safe and Code-compliant manner in that Respondent failed to provide means of egress for transient use, as required by BC 1018.1; Class 1 violation of Code Section 28-301.1 for failure to maintain the building in a safe and Code-compliant manner in that Respondent failed to provide an automatic sprinkler system for transient use, as required by BC 903.2; and Class 1 violation of BC 907.2.8 for failure to provide a fire alarm system for transient use. The hearing At the consolidated hearing, Petitioner, the Department of Buildings (DOB), offered a copy of the C of O for the premises showing that it was authorized as a two-family dwelling, with an apartment on each the first and second floors. The IO testified that he went to the cited premises on a complaint as part of the Mayor s Task Force. The IO testified further that on the second floor, he spoke with four tourists from England who told him that they had booked their stay through an internet site called hostelworld.com; a tourist from Germany who told him that he had booked a 16-day stay through hostelworld.com; a tourist from China who told him that he had booked a 3-day stay through a site called Airbnb.com; and a tourist from South Korea who told him he had booked an 8-day stay through Airbnb.com. The IO stated that on the first floor, he spoke with a German couple who had booked a two-day stay through hostelworld.com. In support, the IO submitted photographs of rooms with bunk beds, booking confirmations from some of the tourists, and web pages from Airbnb.com advertising the cited premises. He stated further that a vacate order was issued against the premises, as shown in a submitted DOB record. 1 The BC is ound in Title 28 of the Code.
Respondent contended that the premises was not a transient hotel, as defined under the New York City Zoning Resolution (ZR). Respondent also asserted that he resided at the premises with the tourists. He argued that under Section 4(8)(a)(1)(A) of the New York State Multiple Dwelling Law (MDL), the temporary occupancy of the apartment by a paying boarder with a permanent occupant present was consistent with the occupancy of the apartment for permanent residence purposes. In respect of the BC 1004.1.2 charge, Respondent argued that the statute did not prohibit six people staying in one room. In respect of the first charge of Code Section 28-301.1, Respondent contended that Petitioner failed to allege the necessary facts to establish non-compliance with BC 1018.1. In respect of the second charge of Code Section 28-301.1, Respondent contended that BC 903.2 required the installation of an automatic sprinkler system only in a new building. In respect of the charge of BC 907.2.8, Respondent contended that Petitioner had failed to allege the necessary facts to establish the violation. At the end of the hearing, Respondent asserted that Petitioner had failed to respond to its pre-hearing request for discovery, made pursuant to Section 3-37 of Title 48 of the Rules of the City of New York (RCNY). The hearing decision The administrative law judge (ALJ) found that the submission of Respondent s discovery request was not timely because he waited until testimony and evidence had been introduced. The ALJ found further that Petitioner s evidence established that 8 or 9 individuals were occupying the premises on a transient basis. She also found that Respondent s motions to dismiss the violations lacked merit and sustained the NOVs. Issues on appeal The issues on appeal are whether: (1) Petitioner s failure to respond to Respondent s discovery request warrants dismissal of the NOVs; (2) the ALJ failed to act impartially and made inadequate findings in her decision; (3) Petitioner s evidence was sufficient to establish that the premises was transiently occupied; (4) Petitioner established a violation of BC 1004.1.2; (5) Petitioner established that Respondent failed to provide means of egress required by BC 1018.1 and a fire alarm system as required by BC 907.2.8; and (6) the transient occupancy of the building required Respondent to comply with the sprinkler requirements of BC 903.2.7. The appeal On appeal, Respondent contends that Petitioner s failure to respond to its discovery request merits dismissal of all the NOVs because he was deprived of due process and an opportunity to properly defend himself. Respondent contends further that the ALJ was biased in favor of Petitioner, made legally insufficient findings and failed to address the arguments he raised at the hearing. Respondent again asserts that the IO s description of the premises as a transient use hostel type is arbitrary and capricious. Respondent claims that Petitioner failed to show any conversion of the premises, as such term is defined under the ZR. Respondent again contends that under the MDL, the transient occupancy of lawful boarders within the household of the permanent
occupant is not inconsistent with permanent residence purposes. Respondent reiterates that BC 1004.1.2 provides a table for calculating occupant loads for determining means of egress requirements and is inapplicable to the allegations made by the IO. Respondent also again asserts that Petitioner failed to establish a violation of BC 1018.1 because the NOV fails to allege facts necessary to determine if any exceptions to the required means of egress have been met. Respondent reargues that because BC 903.2 requires the installation of an automatic sprinkler system only in new buildings, no violation was established. Respondent also reargues that Petitioner failed to establish a violation of BC 907.2.8 because the NOV fails to allege facts necessary to determine if any exceptions to the requirement of a fire alarm system are applicable. In its answer, Petitioner asserts that Respondent reviewed the IO s photographs at the adjourned hearing and that Petitioner s other evidence was available to the public. Petitioner contends that Respondent was therefore not prejudiced by its failure to respond to the discovery request. Petitioner contends further that its evidence established that several tourists were transiently occupying the premises. Petitioner argues that Respondent failed to prove that the tourists were living within the household of any permanent occupant. Petitioner also argues that because of the transient use of the premises, it was subject to the cited exit and fire safety requirements. Respondent submitted a reply to Petitioner s answer, which the Board declines to consider. 2 No dismissal warranted for failure to respond to discovery request Section 3-37(a) of 48 RCNY provides that upon written request, received by the opposing party at least five business days prior to the scheduled hearing date, any party is entitled to receive from the opposing party a list of the names of witnesses who may be called and copies of documents intended to be submitted into evidence. Section 3-37(b) of 48 RCNY limits the scope of pre-hearing discovery to the items listed in paragraph (a) but permits other applications for discovery to be made at the commencement of the hearing and gives the hearing officer the discretion to order further discovery. Section 3-37(c) of 48 RCNY provides that upon the failure of any party to properly respond to a lawful discovery request, the hearing officer may take whatever action he or she deems appropriate including but not limited to preclusion of evidence or witnesses, or striking the pleadings or defenses of such party. On this record, the Board finds that Petitioner s failure to respond to Respondent s discovery request does not warrant dismissal of the NOVs. At the end of the hearing, 2 See 48 RCNY Section 3-71(c) ( Replies. Further briefing shall not be permitted unless required by the board ).
Respondent asserted that his request for discovery, which was received by Petitioner more than five business days before the hearing, had not been answered. In his discovery request, a copy of which was submitted into evidence, Respondent asked Petitioner to send copies of all evidence to be presented at the hearing. In addition, Respondent requested a summary record of all violations issued by the IO, as well as a detailed account of all violations of Code Section 28-118.3.2 and BC 1004.1.2 issued by the IO. On appeal, Respondent asserts that Petitioner s failure to respond to his pre-hearing request for copies of evidence to be presented at the hearing warrants dismissal of the NOVs. However, the sanction for Petitioner s failure to respond, as set forth in Section 3-37(c) of 48 RCNY, is the preclusion of evidence, the striking of pleadings or defenses, or other appropriate measures, as determined by the ALJ. Moreover, at the adjourned hearing, Respondent reviewed Petitioner s evidence packet, which included the IO s photographs, a booking confirmation from hostelworld.com, and web pages from Airbnb s web site. The only additional evidence presented by Petitioner at the hearing consisted of the C of O, a DOB record showing that a vacate order had been issued, and copies of various statutes. As Respondent acknowledged that the premises was a two-family dwelling, was aware of the vacate order, and had notice of the statutes involved, he was not prejudiced by Petitioner s failure to respond to the pre-hearing discovery request. The Board notes that the portion of Respondent s discovery request relating to other violations issued by the IO was outside of the scope for pre-hearing requests permitted by 48 RCNY 3-37(a). As correctly found by the ALJ, Respondent failed to make his request for this documentation at the beginning of the hearing. Further, even if Respondent had made his request at the outset of the hearing, the discovery of the IO s issuance record would be denied, as the Board has no authority to review Petitioner s enforcement practices. No evidence of impartiality On appeal, Respondent asserts that the ALJ misstated the law and made sweeping statements in denying his motions to dismiss, showing that she was biased against Respondent. The Board has carefully reviewed the record and finds no evidence of bias or impropriety on the part of the ALJ. To the extent that the ALJ failed to address certain arguments raised by Respondent at the hearing or make specific findings of fact or credibility, any such deficiency is not a valid ground for reversal of the recommended decision and order and dismissal of the charged violations. Rather, pursuant to 48 RCNY 3-74(a), when an appeal is filed and accepted, it must be determined by the Board upon consideration of the entire record before it. In this case, the record on appeal includes the NOVs, the recorded hearing and all exhibits entered in evidence at the hearing, as well as the ALJ s recommended decision and order. See NYC v. Nucor Construction Corp. (ECB Appeal No. 1101148, March 29, 2012).
Transient use established On appeal, as at the hearing, Respondent claims that the NOVs charging violations of Code Section 28-118.3.2, Code Section 28-301.1 and BC 907.2.8 rested on the IO s allegation that the two-family dwelling had been illegally converted into transient use hostel type. Respondent argues that because clarification from the IO as to this statement was required, the NOVs failed to make out the violations. The Board disagrees. In each of these NOVs, the IO included the phrase transient use in addition to specific applicable details. Further, Petitioner may supplement its case through testimony and other evidence. See NYC v. Krzysztor Pyryt (ECB Appeal No. 1100917, November 17, 2011). Here, in addition to his sworn statements on the NOVs, the IO testified that he spoke with six tourists staying for less than 30 days in the second-floor apartment and two tourists staying for less than 30 days in the first-floor apartment. In support, Petitioner offered booking confirmations for some of the tourists and photographs showing bunk beds installed in rooms. On this record, the Board concludes that Petitioner established that the premises was transiently occupied on the date of the violations. On appeal, as at the hearing, Respondent claims that it is not illegal to have boarders staying for short-term visits within the household of a permanent occupant. The Board notes that under MDL Section (4)(8)(a)(1)(A), the occupancy of a dwelling unit for fewer than thirty consecutive days by other natural persons living within the household of the permanent occupant, such as house guests or lawful boarders, roomers or lodgers, is not inconsistent with permanent resident purposes. Here, however, Respondent provided insufficient proof to show that he was residing in either the firstor second-floor apartment on the date of the violations. Further, the IO testified that the room in the second-floor apartment containing six bunk beds had a key-locking device, a photograph of which he submitted. Consequently, the evidence in the record shows that the tourists occupying the second-floor apartment lived separate and apart from any permanent occupant. On this record, the Board concludes that Respondent failed to establish that the tourists in either the first- or second-floor apartments were living within the household of a permanent occupant on the date of the violations. Compare NYC v. Abe Carrey (ECB Appeal Nos. 1300602 & 1300736, September 26, 2013) (tourist temporarily staying in an apartment with the permanent occupant was found to be living within the household of such permanent occupant based on Respondent s evidence that bedrooms had no locks, single bathroom was used by both, and other evidence of shared living). 3 No violation of BC 1004.1.2 established BC 1004.1 provides that [i]n determining means of egress requirements, the number of occupants for whom means of egress facilities shall be provided shall be established by the largest number computed in accordance with Sections 1004.1.1 through 1004.1.3. 3 To the extent that Respondent bases his defense on the MDL, the Board also notes that his two-family dwelling is not a multiple dwelling, as defined in the MDL. See MDL Section 4(7).
BC 1004.1.2 provides a table for purposes of calculating the number of occupants for various occupancies based on floor area per square feet per occupant. For residential occupancy, the calculation is one occupant per 200 square feet. At the hearing, the IO testified that he observed six bunk beds in one room, which had a floor area of approximately 200 square feet. The IO asserted that pursuant to the table set forth in BC 1004.1.2, the room should have been at least 1,200 square feet to accommodate six people. However, as pointed out by Respondent on appeal, the table is for purposes of calculating the number of occupants in order to determine means of egress requirements. The cited statute does not contain requirements for minimum square footage of a space based on number of occupants. Consequently, on this record, Petitioner failed to make out a violation of BC 1004.1.2, and the Board dismisses this NOV. Violations of BC 1018.1 and BC 907.2.8 established BC 1018.1 requires that all rooms and spaces within each story with an occupant load of 1 through 500 have access to at least two independent exits, except in certain specified circumstances. BC 907.2.8 requires that in R-1 occupancies, a manual fire alarm system and an automatic fire alarm system be installed, except in certain specified circumstances. On appeal, as at the hearing, Respondent argues that Petitioner failed to establish violations of BC 1018.1 and BC 907.2.8 because it did not allege facts showing whether any statutory exceptions had been met. However, it was Respondent s burden, not Petitioner s, to prove that the building was not required to have two independent means of egress for each story or a fire alarm system because it fell within a statutory exception. Neither on appeal nor at the hearing has Respondent submitted evidence that the building fell within any applicable exception. Change to transient occupancy required compliance On this record, the Board finds that the transient occupancy of the building required Respondent to comply with the sprinkler requirements of BC 903.2.7. On appeal, as at the hearing, Respondent argues that the statute applies to new buildings, and not existing buildings. However, pursuant to Code Section 28-102.4.2, changes in the use or occupancy of any building or structure made after the effective date of this code shall comply with the provisions of this code. 4 Here, Petitioner s evidence established that the first- and second-floor apartments, legally authorized for permanent residency under the C of O, were transiently occupied on the date of the violations. Consequently, this change from long-term occupancy (Group R-2 occupancy) to transient occupancy (Group R-1 occupancy) brought the building within the purview of BC 903.2.7. 4 Pursuant to Code Section 28-101.3, this code refers to Title 28 of the Code and the New York City Construction Codes in effect as of July 1, 2008.
Accordingly, the Board affirms the ALJ s finding of violation of one charge of Code Section 28-118.3.2, two charges of Code Section 28-301.1, and one charge of BC 907.2.8, and reverses the ALJ s finding of violation of one charge of BC 1004.1.2 and dismisses this NOV.