Glenwood TV, Inc. v. Ratner

103 A.D.2d 322, 480 N.Y.S.2d 98, 1984 N.Y. App. Div. LEXIS 19281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 17, 1984
• Status: Published

Opinions

OPINION OF THE COURT

Titone, J. P.

The Commissioner of the New York City Department of Consumer Affairs appeals from two judgments of the Supreme Court, Kings County, which declared subdivision 5 of section B32-472.0 and section 773-13.0 of the Administrative Code of the City of New York unconstitutional insofar as they purport to authorize nonconsensual periodic inspections of the records of licensed television and radio repair businesses without a search warrant, and annulled determinations suspending the petitioners’ licenses and imposing fines for a willful refusal to permit such inspections.¹ A majority of this court finds the legislation to be constitutional and, therefore, reverses the two judgments.

I

In 1973, the New York City Council enacted New York City Local Law No. 74 of 1973 (Administrative Code, ch 32, tit B, art 44, § B32-465.0 et seq.), which provides for the licensing and regulation of individuals and entities engaged in servicing or repairing television, radio or audio equipment. The City Council, which had studied the matter for several years (see Metropolitan Electronic Tel. Serv. Dealers Assn. v Guggenheimer, NYLJ, July 2, 1975, p 12, col 5, affd 51 AD2d 922, mot for lv to app den 39 NY2d 709), concluded that the business had “become the subject of great abuse. The public has been and is unprotected from unethical and financially unstable service dealers. The necessity for legislative intervention to protect the public and legitimate service dealers [was] * * * declared as a matter of legislative determination” (Administrative Code, § B32-465.0).

The statutory scheme and the implementing regulations promulgated by the Commissioner of Consumer Affairs provide for the licensing of such repair and service dealers and comprehensive disclosure rules designed to insure that the consumer is sufficiently apprised of the anticipated costs and of the obligations undertaken by repairmen.² A licensee is thus required to conspicuously post its license and a sign advising consumers of their rights (Administrative Code, § 773-13.0; Department of Consumer Affairs Rules and Regulations Relating to Television, Radio and Audio Equipment, Phonograph Service and Repairs, City Record, Jan. 23. 1975, pp 264-266). In addition, all work performed by the licensee is to be recorded on an invoice containing the license number and other details and a copy delivered to the customer and a copy retained by the licensee for a period of three years (Administrative Code, § B32-472.0, subd 1). Such invoices and other records required by regulation “shall be open and available for reasonable inspection by the commissioner or other law enforcement officials, and shall be kept for a period of three years” (Administrative Code, § B32-472.0, subd 5).

The legislation also directs the Commissioner of Consumer Affairs to conduct periodic inspections to insure that licensees comply with the terms of their license and governing regulatory provisions (Administrative Code, § 773-13.0). To that end, the Commissioner has instituted a random computer selection method whereby licenses are regularly inspected about once a year and, to limit the scope of the inspection, inspectors are provided with a form which they are to follow.

II

We turn, then, to a review of the factual background of the case now before us.

On June 6,1979 and June 22,1979, respectively, Inspector Joseph Laura of the Department of Consumer Affairs arrived at the store fronts of Glen wood TV, Inc., and Charles TV, Inc., both of which were licensed pursuant to the Administrative Code. Upon entering the area open to the public at each location, he first checked to see that the required signs informing consumers of their general legal rights were conspicuously posted. Finding that they were, he then asked each proprietor for a sampling of the estimates, work orders and final bills that they were required to keep. On both occasions this request was refused. There is no indication or claim that the inspector attempted to enter any area of the business not otherwise accessible to the general public. Nor does either party contend that the statutes in question purport to authorize such entry or that inspectors make such entries without the consent of the proprietor.

Consequently, administrative charges were filed against both licensees, and, on consent, the actions were consolidated for the purpose of a hearing, which was held on November 13, 1979. At the hearing, both licensees admitted their refusal to supply the requested documentation, stating that their refusal was prompted by instructions from the Metropolitan Electronic Television Service Dealers Association’s counsel to supply this documentation only when inspections are conducted in response to specific consumer complaints and to refuse when subjected to periodic inspection. It was the Association’s position, adopted by both licensees at the hearing, that these periodic inspections were too frequent, as they took between an hour and two hours to complete, and were therefore unreasonably disruptive of small business operations.³

The Department of Consumer Affairs produced Principal Inspector Christopher Bossis and Inspector Joseph Laura to testify to the standard inspection procedures and those specifically employed with respect to these licensees. Principal Inspector Bossis stated that routine periodic inspections of dealers were randomly scheduled by computer about once a year and that it would be virtually impossible for a single licensee to be scheduled for regular inspection four to six times in one year. Both inspectors stated that the procedure employed should take a maximum of one-half hour to complete and routinely last as little as 15 minutes. The presence of an inspector for more than a half hour would only result if the inspection was interrupted by the entrance of customers during the inspection, as it is the Department’s practice to accommodate dealers by allowing them to interrupt the inspection and tend to customers. Indeed, one of the petitioners admitted that this was routinely done but claimed that inspections were nonetheless disruptive of customer relations because “[t]he shops are generally small, and the inspector can overhear anything that goes on, pertaining to your dealings with your consumers”.

A written decision was rendered fining each licensee $300 and ordering them to “make available for inspection all required records requested by this Department” within five days of notice of the decision. The hearing officer found that the inspections were lawfully authorized by the City Council, that the inspections were reasonable in both frequency and duration, and that both licensees willfully refused to submit to them. The licensees were notified of the decision by a letter dated January 15,1980, and, when they failed to comply with its terms, they were informed that their licenses would be suspended effective March 5, 1980. When the licensees further refused to surrender their licenses and cease operation pursuant to the notice of suspension, the Department revoked their licenses.

The licensees did file administrative appeals, raising their constitutional claims for the first time; however, the appeals were denied as untimely as both licensees had been granted an extension of time until February 8, 1980 to file an appeal, but had not done so until February 15, 1980.

Subsequently, petitioners commenced these proceedings to review the administrative determinations upon the ground that Local Law No. 74 of 1973 is, among other things, violative of their Fourth Amendment protections against warrantless searches and seizures (US Const, 4th Arndt). Special Term treated these proceedings as “hybrid proceedings for both Article 78 and declaratory relief”,⁴ and, in a far-ranging opinion, agreed with petitioners, and set forth elaborate notice and warrant requirements. We reverse.

Ill

At the outset, a matter of procedure must be addressed. While the petitioners’ failure to exhaust administrative remedies does not bar a challenge to administrative action as either unconstitutional or beyond the agency’s statutory power (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57; cf. Matter of Celestial Food Corp. v New York State Liq. Auth., 99 AD2d 25, 27), it does limit the scope of judicial review to the face of the statute itself (Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375-378; cf. Skylab Realty Corp. v New York Prop. Ins. Underwriting Assn., 96 AD2d 939). Accordingly, we must presume that the inspections were conducted in a reasonable fashion and accept the findings of the hearing officer (see Young Men’s Christian Assn. v Rochester Pure Waters Dist., supra).

While, as petitioners urge, the city cannot require them to submit to blanket warrantless searches as a condition of licensing (see, e.g., Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 658, cert den 396 US 840), such an approach begs the question now before us. The analysis of any search and seizure claim, and correspondingly the Fourth Amendment’s warrant clause, must begin with a threshold determination of whether the subject of the search possesses a reasonable expectation of privacy in the area or items searched (Rakas v Illinois, 439 US 128, 143; Katz v United States, 389 US 347, 351; People v Ponder, 54 NY2d 160; People v Lerhinan, 90 AD2d 74, 75). And, “unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment * * * The greater latitude to conduct warrant-less inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home” (Donovan v Dewey, 452 US 594, 598-599).

Significantly, petitioners do not complain here about the presence of an inspector on the public portions of their premises for determining that they have complied with applicable posting requirements. Indeed, any complaint would be futile because it is basic that there can be no reasonable expectation of privacy in public areas of a commercial establishment (see Matter of Salob v Ambach, 73 AD2d 756, 757, mot for lv to app den 49 NY2d 703, app dsmd 49 NY2d 800, cert den 449 US 829) for “[w]hat is observable by the public is observable, without a warrant, by the Government inspector as well” (Marshall v Barlow’s, Inc., 436 US 307, 315; cf. People v Rizzo, 40 NY2d 425, 428-429) and an inspector, like a customer, needs no judicial process to enter (Donovan v Lone Steer, 464 US _, 104 S Ct 769).

Instead, respondents focus on the records they are required by law to keep. They claim that such records need not be submitted for inspection to an inspector lawfully in their shop absent a warrant, and that no sanctions may be imposed for their failure to do so.⁵

The difficulty with this thesis is that the warrant clause has long been deemed inapplicable to “required records” which “are in the public domain” and, as a result, “their custodian is not afforded the traditional protections of the fourth or fifth amendments” (United States v Pine Val. Poultry Distrs. Corp., 187 F Supp 455, 457; see, e.g., Shapiro v United States, 335 US 1, 32-34; Boyd v United States, 116 US 616, 623-624). It is clear that “the modern businessman has little or no expectation of privacy in his business records, especially those documents prepared in compliance with regulatory requirements” (Interstate Commerce Comm. v Gould, 629 F2d 847, 858, cert den 449 US 1077; cf. Matter of Hynes v Moskowitz, 44 NY2d 383, 395, app dsmd 439 US 921). Numerous authorities demonstrate this principle (see, e.g., United States v Snyder, 668 F2d 686, 690 [records of union pension and welfare fund required to be kept by law]; Donovan v Mehlenbacher, 652 F2d 228, 231 [records required to be kept by farmer employing migrant workers]; Matter of Grand Jury Proceedings, 601 F2d 162, 167-168, 170 [records required by regulations to be kept by custom-house broker]; cf. Civil Aeronautics Bd. v United Airlines, 542 F2d 394, 401-402 [records required to be kept by airline carrier]; Securities & Exch. Comm. v Olsen, 354 F2d 166, 170 [records required to be kept by investment advisors]; Cooper’s Express v Interstate Commerce Comm., 330 F2d 338, 340-341 [records required to be kept by interstate motor carrier]).

In short, statutory schemes requiring licensees to have books and records available for inspection during reasonable business hours are quite common (see, e.g., Alcoholic Beverage Control Law, § 105, subd 15; Insurance Law, §§ 24, 28, 29, 36-a; Public Health Law, § 3308; Vehicle and Traffic Law, § 415-a) and have long passed constitutional muster (e.g., United States v Gordon, 655 F2d 478; United States ex rel. Terraciano v Montanye, 493 F2d 682, cert den sub nom. Terraciano v Smith, 419 US 875; Matter of McKaba v Board of Regents, 30 AD2d 495). There is “no meaningful difference between an obligation to maintain records for inspection, and such an obligation supplemented by a requirement that those records be filed periodically with [governmental] officers * * * ‘[regulations permit records to be retained, rather than filed, largely for the convenience of the persons regulated’ ” (Marchetti v United States, 390 US 39, 56, n 14).

The authority to inspect records, which is at issue, is essentially an analogue of the power conferred upon an agency to issue a subpoena duces tecum. The Fourth Amendment is satisfied if the authority to inspect is exercised reasonably and if judicial review is available before a person is ultimately required to submit to an inspection (e.g., Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, 610-611; Matter of A’Hearn v Committee on Unlawful Practice of Law, 23 NY2d 916; Civil Aeronautics Bd. v United Airlines, 542 F2d 394, supra; cf. United States v Morton Salt Co., 338 US 632; Matter of Levin v Murawski, 59 NY2d 35).

To be sure, there are limitations. “Unbridled” administrative discretion will not do (see Donovan v Dewey, 452 US 594, 599, supra; Marshall v Barlow’s, Inc., 436 US 307, 323, supra). The propriety of a warrantless administrative inspection scheme is measured by a balancing of enforcement goals and needs against the privacy and regulatory guarantees within the statutory framework (Marshall v Barlow’s, Inc., supra). Inasmuch as the inspections here were limited to required records and the licensees’ public areas, the statutory safeguards were sufficient to protect their legitimate privacy concerns (see, e.g., United States ex rel. Terraciano v Montanye, 493 F2d 682, supra).

Similarly, the “certainty and regularity” of the scheme’s application is sufficiently tailored to goals and enforcement needs and thus “provides a constitutionally adequate substitute for a warrant” (Donovan v Dewey, 452 US 594, 603, supra). The legislative findings, to which we defer (Donovan v Dewey, supra, p 603), plainly support the need for surprise “if inspection is to be effective and serve as a credible deterrent” (United States v Biswell, 406 US 311, 316; see, also, Marshall v Barlow’s, Inc., supra, p 316). Parenthetically we note that discretion is limited through the use of a standard uniform checklist issued to inspectors, and the employment of a computerized random selection process.⁶

In this regard, we are not persuaded that an ex parte warrant or subpoena is a necessary condition precedent to an administrative inspection. Since the administrative orders are not self-executing and may only be enforced with judicial assistance (Administrative Code, § 773-5.0), there is an adequate forum for the licensee to obtain judicial review of any constitutional claims prior to enforcement (cf. Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408, 413). That is all that the Constitution requires (see Donovan v Dewey, supra, pp 604-605).⁷

In fact, the administrative procedures under review provide more protection than a traditional search warrant, which is issued ex parte and is executed under the compulsion of the threat of force. No matter how intrusive the search may be, the individual at whom it is directed must comply. Under the procedures employed by the Commissioner of Consumer Affairs, once petitioners refused to comply, the Commissioner’s only recourse was to administrative and judicial process (cf. Matter of Hynes v Moskowitz, 44 NY2d 383, 394-395, app dsmd 439 US 921, supra).

In sum, the challenged provisions of the Administrative Code of the City of New York are not violative of the Fourth Amendment. Accordingly, the judgments should be reversed, with one bill of costs, the determinations of the Department of Consumer Affairs confirmed and the proceedings dismissed on the merits, and a declaration made that the challenged provisions of the Administrative Code are constitutional.

1 . Special Term’s opinion also purported to require that the Department of Consumer Affairs give licensees advance written notice of at least one week of any inspection, and the opportunity to reschedule inspections at more convenient times. The signed judgments, however, omit these requirements.

2 . The provisions of Local Law No. 74 of 1973 and the implementing regulations were sustained in Metropolitan Electronic Tel. Serv. Dealers Assn. v Guggenheimer (NYLJ, July 2, 1975, p 12, col 5, affd 51 AD2d 922, mot for Iv to app den 39 NY2d 709).

3 . In support of these contentions, Mr. Pearlman, principal of Glenwood TV, testified that in the year preceding this refusal to produce these documents his business had been inspected at least 4 and as many as 6 times, with each inspection lasting 1 to 2 hours. Charles Goldberg of Charles TV similarly testified that he had been subjected to inspections 2 to 3 times in the preceding year with a similar imposition on his business.

4 . No one has questioned the propriety of this procedure, and we do not pass on it.

5 . The constitutionality of the record keeping requirement itself has already been established (Metropolitan Electronic Tel. Serv. Dealers Assn. v Guggenheimer, NYLJ, July 2, 1975, p 12, col 5, affd 51 AD2d 922, mot for lv to app den 39 NY2d 709).

6 . The inspectors do not seek evidence of a crime and their function is limited to insuring compliance with a civil regulatory scheme (cf. People v Pace, 101 AD2d 336).

7 . We note that in January, 1982, the City Council enacted Local Law No. 5 of 1982, commonly referred to as the “Padlock Law,” which conferred additional enforcement powers on the Commissioner of Consumer Affairs, including the authority to enforce orders without judicial assistance (see Greenman, The Padlock Law, NYLJ, April 30, 1982, p 1, col 1). The question of whether the procedures authorized by the Padlock Law are constitutionally offensive is not now before us.