Meyers Bros. Parking Systems, Inc. v. Sherman , 105 Misc. 2d 527 ( 1980 )

OPINION OF THE COURT

Arnold Guy Fraiman, J.

By this CPLR article 78 proceeding petitioner, the operator of a parking garage, seeks to annul the order of respondent, Commissioner of the New York City Department of Consumer Affairs, fining petitioner $900 for violating section B32-257.0 of the Administrative Code of the City of New York, which prohibits parking cars in excess of the garage’s lawful capacity.

Petitioner is licensed by respondent to operate a parking garage in New York City with an authorized capacity of 61 cars. On December 4, 1979 an inspector from the Department of Consumer Affairs visited petitioner’s garage and found that nine cars were parked in excess of lawful capacity. Petitioner admitted the violation, and by letter dated March 6, 1980 respondent ordered petitioner to pay a fine of $900, based on a penalty of $100 for each vehicle in excess of the garage’s lawful capacity.

Petitioner contends that the fine imposed exceeded respondent’s authority pursuant to section 773-4.0 of the Administrative Code, which authorizes the commissioner to impose fines of not more than $350 “for each violation of this chapter”. Petitioner contends that the finding, on a single inspection, that petitioner permitted nine cars to be parked in excess of lawful capacity constitutes a single violation of the Code and that therefore the maximum fine it was subject to was $350.

Section B32-257.0 of the Administrative Code provides that “No motor vehicle shall be accepted by a licensee for parking, or storage, in excess of the capacity of the garage or parking lot, as shown in the license”. The courts of this State have repeatedly refused to authorize the recovery of cumulative penalties absent statutory language clearly indicating legislative intent to permit such recoveries. The legislative purpose is generally satisfied by a finding of one violation, which acts as a warning to discontinue the prohibited acts. (See People v Spencer, 201 NY 105, 109.)

In the instant case, no such clear intent to permit imposition of cumulative penalties is found in section B32-257.0. Accordingly, the discovery, upon a single inspection, that petitioner has parked cars in excess of lawful capacity constitutes one violation and is subject to a maximum fine of $350, regardless of the number of cars over the legal limit. While the court is aware that a contrary determination was made by Mr. Justice Okin in a decision dated December 13, 1979, in a case involving the same issue as that in the instant case, the court declines to follow that decision. The fine imposed by respondent is annulled and the matter remanded to respondent for redetermination of an appropriate fine in accordance with this decision.