CITY OF NEW YORK V. 149 CHURCH ASSOCIATES FRUIT CORP.

(The City of New York Environmental Control Board, September 25, 2014)

We represented: 149 Church Associates Fruit Corp.

Clive Morrick, Administrative Law Judge

Further Findings of Fact and Conclusions of Law

This is a companion case to the same charges brought against the owner of the cited building. (ECF # 12071009.) Respondent is the commercial tenant, a grocery. The parties agreed to adopt the record in that case as far as is relevant.

Petitioner charged respondent on 8/28/2012, with displaying an outdoor advertising sign without a permit; displaying an outdoor advertising sign prohibited in the Zoning District; and failing to register as an outdoor advertising company (OAC) while acting as such. The cited sign is a Contest Promotions sign (Contest Promotions is an Outdoor Advertising Company (OAC)) advertising products sold elsewhere and drawing attention to respondent grocery wherein a sweepstakes is operating.

Respondent presented a pre-trial Memorandum of Law. Petitioner declined to respond.

The NOVs are dated 8/28/2012. Petitioner augmented the NOV with two photographs. P ex 2, 3.

Respondent presented credible evidence the sign was removed by 4/3/2013. The first scheduled hearing date was 4/12/2013.

Findings of Fact and Conclusions of Law:

In the companion case, I found that the sign is an outdoor advertising sign. Contest Promotions signs of this nature and design have been so held: Contest Promotions v City of New York Bd. Of Standards and Appeals, 116 AD 3d 446 (2014). Further, respondent’s argument in its Memorandum of Law that the sign is an accessory sign is inapplicable (merits apart) because it is directed to a sign that was displayed subsequently to the cited sign. Further, the cited sign does not have a permit because the permit respondent submitted is for different copy and is inapplicable to the cited sign.

Finally, the agreement between Contest Promotions and the respondent grocery, though called a sweepstakes agreement, in fact is an agreement under which the grocery asserts it has authority to lease building wall space for sign display. See, P ex I, para 1.

I find that the respondent grocer leased space for that purpose. (That this was a breach of its lease with the owner is not relevant to this hearing) I find respondent acted as an OAC.

I credit the NOVs and supporting evidence and find that an advertising sign was displayed without a permit and in violation of the Zoning Resolution.

Accordingly, l sustain NOVs 34998192R and 34998194K. If a violation is eligible for a mitigated penalty, a mitigated penalty will be imposed if the respondent proves at the hearing that the violating condition was corrected prior to the first scheduled hearing date at the ECB. (48 RCNY 3-103.) I so find.

NOV 34998193Z (failing to register as an OAC):

1 RCNY Chap 49 establishes criteria for regulating outdoor signs, including the registration ofOACs. Rule 49-01 provides that for the purpose of this rule (i.e. registering as an OAC) property owners and managers shall not be considered as engaging in the outdoor advertising business where they are involved strictly to the extent of leasing space on property they control to an independent registered OAC.

Contest Promotions is concededly a registered OAC. While respondent is not the owner or manager of the premises I find the rule applicable in that it is designed to have only one registration per sign. Thus, respondent is not required to register as an OAC.

Accordingly, the NOV is dismissed.