Respondents argued DOB-approved alteration plans sufficient to change occupancy of premises from cabaret to adult establishment. On October 13, 2011, the City’s Department of Buildings (DOB) issued notices of violations to 725 7th Avenue Realty Co. for illegal use of the premises as an adult establishment, as well as illegal use of the second floor and cellar. The premise is currently occupied by the Lace Gentlemen’s Club located at 725 7th Avenue in Manhattan.
The premises’ Temporary Certificate of Occupancy (TCO) allows for the cellar to be used for storage, the first floor as a cabaret, and the second floor for retail. However, the issuing officer found the cellar being used as the entertainer’s lounge, and the first and second floors as an adult establishment. The owner argued that altering the cabaret to an adult establishment was allowable since both are within zoning use group 12, as well as occupancy group F-4, as stated in the TCO. Both of these groups cover eating and drinking establishments with dancing and entertainment. In addition, the owner argued that DOB already approved the alteration plans but admitted the TCO did not reflect the approved changes. At the hearing, the administrative law judge (ALJ) upheld the violation finding the use as an adult establishment, and the cellar and second floor uses were illegal occupancies since it didn’t adhere to the TCO.
The Environmental Control Board (ECB) affirmed the decision of the ALJ and sustained the $2,400 fine. DOB showed that only the first floor and mezzanine level fell within zoning use group 12 and occupancy group F-4. According to the TCO, the second floor, authorized for a retail store, and the cellar, authorized for storage, are classified under separate zoning use and occupancy groups. Thus, DOB established that the TCO prohibited the owner from using these levels as part of the adult establishment.
According to ECB, even though the owner’s alteration plans to become an adult establishment were approved by DOB, they still needed to amend or finalize the TCO reflecting the change in uses to an adult establishment and the change in uses of the cellar and second floor. Any ongoing plans to make the changes final, does not excuse the violation from being issued based upon the most recent issued Certificate of Occupancy.
NYC v. 725 7th Avenue Realty Co., ECB Appeal No. 1200532 (October 25, 2012).