4th Department: Burns v. Carballada

Deborah Burns and Bruce Henry were found guilty of violating a Rochester City Code section which held that an owner of property must have a Certificate of Occupancy (“CO”), which must be renewed every six years.  The City relied on the part of the Code that states that the renewal must be made within a period of ninety days prior to expiration of the current CO.  Petitioners’ CO was invalid.

The case had previously been before the appellate division, whereupon the petitioners argued that the Municipal Code Violations Bureau (“Bureau”) did not provide sufficient evidence of the offense.  The court previously held that there was not a substantial evidence issue and remitted.  Upon remittal, the Supreme Court of Monroe County ruled in favor of petitioners, stating that the determinations by the Bureau were arbitrary, capricious, and facially insufficient.  Carballada, the respondent, appealed the judgment in his capacity as the Commissioner of Neighborhood and Business Development of the City of Rochester.

On the facial insufficiency of the Bureau’s determination, the court held that the lower court erred because the issue was never raised in the current petition.  In fact, the petitioners agreed with the respondents that the tickets were facially sufficient.

Therefore, the issue raised on appeal was whether the City’s CO inspection-and-warrant system was unconstitutional as applied.  The City had previously considered that many individuals may not cooperate in the inspection process.  Therefore, a new procedure was established to issue judicial warrants to inspect the premises with no requirement of consent when a warrant is issued.

Previously, the court had rejected a facial constitutional claim for this established procedure, and here, rejected the as applied claim.  The court reasoned that the petitioners did not show that they were actually injured because there was no evidence that they ever applied for a CO and subsequently refused to consent to the inspection.  Further, the court held that consent is not a requirement of the procedure.  An inspection can take place with either consent or a warrant.  Therefore, even had they not consented, the procedure would still have been lawful if a warrant was issued.

The dissent argued that the majority looked at the case in an overly restrictive manner, and that the procedure was unconstitutional because it was performed in an arbitrary and capricious manner.  The dissent agreed with the supreme court’s holding that the Bureau’s action was without a sound basis and was irrational because the Code section that it relied upon was not actually violated.

101 A.D.3d 1610, 956 N.Y.S.2d 357 (4th Dep’t 2012)

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