LL 5103091 Page 1

Dept. of Consumer Affairs v. 129 Broadway Inc. d/b/a BP Amoco Shop

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

DEPARTMENT OF CONSUMER AFFAIRS,
Complainant,
-against-
129 BROADWAY INC. d/b/a BP AMOCO SHOP,
Respondent. / DECISION AND ORDER
Violation No.: LL 5103091
License No.: 1157194
Respondent’s Address:
3225 Broadway
New York, NY 10027
Date: April 19, 2006

A hearing on the above matter was held on February 28 and March 14, 2006.

Appearances: For the Department: Inspector Henriquez. For the Respondent: Raul Nabe, Vice President (February 28 only); Rajan Nabe, President (March 14 only).

The respondent is charged with violating the following:

1)Administrative Code of the City of New York Section 20-113, using a trade name that has not been filed with the Department.

Based on the evidence in this case, I RECOMMEND the following:

Findings of Fact

On December 21, 2005, the date of the inspection, the respondent had two large signs posted on the premises of its service station that read “BP Amoco.” BP Amoco is an entity, separate and apart from respondent, that is the franchisor for the respondent.

The respondent is incorporated in New York State under the name 129 Broadway Inc. In November 2003, its president, Rajan Nabe, entered into a franchise agreement with BP Amoco to operate as a dealer, and a lease agreement with the landlord, to operate at the subject premises. Its Department of Consumer Affairs cigarette retail dealer’s license is issued to 129 Broadway Inc. No trade name is on file with the Department.

Opinion

The above facts are not in dispute.

New York State General Business Law Article 24 Section 360(d) defines “trade name” as “any name used by a person to identify a business or vocation of such person.”

The definition of “tradename” is “a means of identifying a business – or its products or services – to establish goodwill. It symbolizes the business’s reputation.” Black’s Law Dictionary 1501 (7th ed. 1999).

The credible evidence indicates that the respondent used “B.P. Amoco” as a trade name without having filed it with the Department as such.

Although the respondent’s president and vice president testified that BP Amoco is an entity that is separate and apart from the respondent, that the respondent neither operates under the trade name, nor does business as, BP Amoco, and that the signs relate strictly to the type of gasoline being sold, I find that it is the presence of signs at the premises reading “BP Amoco” that gives the impression that the business name--not merely the petroleum being sold--is BP Amoco. In effect, by posting the signs the respondent is representing itself as BP Amoco.

Order

The respondent is found guilty of charge # 1.

The respondent is further ordered to pay a fine of $350 for this violation.

This constitutes the recommendation of the Administrative Law Judge.

______

Judith Gould

Administrative Law Judge

DECISION AND ORDER

The recommendation of the Administrative Law Judge is approved.

Failure to comply with this order within thirty (30) days shall result in the suspension of the license at issue, and may result in the suspension of any other Department of Consumer Affairs license(s) held by the respondent(s).

______

Nancy J. Schindler

Deputy Director of Adjudication

cc:Enforcement (Inspector Henriquez)

NOTICE TO RESPONDENT(S): If you wish to APPEAL this decision, or file a MOTION FOR REHEARING, you must file your appeal or motion with the Director of Adjudication, Department of Consumer Affairs, 66 John Street, New York, NY 10038, within 30 daysof the date of this decision. You must include with your appeal or motion (1) a check or money order payable to the Department of Consumer Affairs for the sum of $25; and (2) a check or money order payable to the Department of Consumer Affairs for the amount of the fine imposed by the decision, or an application for a waiver of the requirement to pay the fine as a requisite for an appeal, based upon financial hardship, supported by evidence of financial hardship, including the most recent tax returns you have filed. In addition, you must serve a copy of your appeal or motion for rehearing, and any related documents, on the Litigation and Mediation Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.

N.Y.C. Department of Consumer Affairs  66 John Street-11th Floor  New York, N.Y. 10038  (212) 361-7770

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