LL5082406
Page 1
*Dept. of Consumer Affairs v. Mumbai, Inc. a/k/a The City Lounge and Brahm Prasad
CITY OF NEW YORK
DEPARTMENT OF CONSUMER AFFAIRS
DEPARTMENT OF CONSUMER AFFAIRS,Complainant,
-against-
MUMBAI, INC. a/k/a THE CITY LOUNGE
and
BRAHM PRASAD,
Respondents. / DECISION AND ORDER
Violation No.: LL5082406
Respondents’ Address:
250 West 26th Street
New York, NY10001
Date: December 26, 2006
A hearing on the above-captioned matter was held on February 27, February 28, March 1, March 15, March 29, April 4, April 19, May 31, June 21, August 17 and October 12, 2006.[1]
Appearances: For the Department: Susan Kassapian, Esq., Assistant Commissioner for Litigation; Alison J. Chen, Esq.; witnesses: Brahm Prasad (February 28, 2006); Bryan Sloane (February 28, 2006); Laura McNeil (February 28, 2006); Fred Phelps (February 28, 2006); Michael Flynn (February 28, 2006); Maria Fredericks (February 28, 2006); Michael Weinberger (March 1, 2006); Allen Schwartz (March 15, 2006); Police Officer Michael Riso (March 15, 2006); Inspector Jean Belizaire (March 29, 2006 and October 12, 2006 (testifying on March 29, 2006 only)); Beth Galton (April 4, 2006); Courtney Jackson-Chase (April 4, 2006); Police Officer Marc Burkhardt (May 31, 2006); Stewart Green (October 12, 2006); C.G. (Balu) Balachandran (October 12, 2006). For the Respondent: Alan E. Sash, Esq.; Brahm Prasad (all dates; testifying on February 28, 2006, April 29, 2006 and October 12, 2006); Sita Prasad (April 4, 2006); Aumanada Prasad (April 4, 2006); Omar Ahmed (April 4, 2006); Michael Chan (April 4, 2006); Charles Roberts (May 29, 2006); Eric Pristigiacomo (May 29, 2006); Audley (“Dewey”) Barranco (May 31, 2006).[2]
The respondents are charged, as deemed to be supplanted by the Department’s proposed findings of fact and conclusions of law and otherwise deemed amended as set forth below, with violating the following:
1)New York City Administrative Code Section 20-361(a)(4) (incorporated by reference by Section 20-369 (grounds for suspension and revocation)) and Title 6 of the Rules of the City of New York (“6 RCNY”) Section 6-42(c), by reason of respondent’s failure to comply with that certain Consent Judgment/Order entered into on July 30, 2003 (the subject “CJO”), including, in particular, its recited obligations: (a) to monitor noise generated by patrons and would-be patrons gathered outside the premises and the noise level from cars and cabs dropping off patrons for the club; (b) to assign a team of employees to clean the litter in the vicinity of the establishment after the establishment closes; (c) to attend Community Board meetings that take place; (d) to endeavor to be responsive to reasonable and valid community complaints and suggestions of the Community Board; (e) to make all other reasonable efforts to avoid disrupting the neighborhood; (f) for a period of one year, to provide a written monthly report to the Department regarding what if any responsive measures to complaints or suggestions it has taken; (g) to take reasonable steps to soundproof the premises to comply with the standards established by the Department of Environmental Protection, including, if reasonably necessary to meet applicable standards, rearranging where the speakers are placed or lowering the bass on them, or strategically adding soundproofing tiles; and (h) for one year, to provide a monthly written report to the Department regarding any citations received from the Police, Fire Department and all other regulatory agencies and the dispositions of said citations when known;
2)New York City Administrative Code Section 20-361(a)(4) (incorporated by reference by Section 20-369 (grounds for suspension and revocation)) and Title RCNY Section 2-207, by reason of respondent Mumbai’s failure to “exercise proper care and responsibility in supervising crowd control in the areas adjacent to the cabaret’s entrance” and to “make a good faith effort to ensure that the crowd awaiting admission to or leaving the premises does not cause excessive noise or litter or behave in a manner that would disturb the public peace or safety”[3] (“at least” 100 counts); and
3)New York City Administrative Code Section 20-361(e), by reason of Mumbai’s failure to notify the Department within three business days of the receipt of summonses (50 counts).
Respondent Prasad is also charge with violating:
4)New York City Administrative Code Section 20-101, by reason of being “unfit to hold a license.”
Based on the evidence in this case, I RECOMMEND the following:
Findings of Fact[4]
On or about July 18, 2002, individual respondent Brahm Prasad (“Prasad”), on behalf of Respondent Mumbai, Inc., a/k/a The City Lounge (“Mumbai”) (collectively “Respondents”), entered into a lease for the 1st floor of the premises located at 250 West 26th Street, New York, NY (the “subject premises”). Since Mumbai opened as a cabaret on December 28, 2002, Prasad has served as its president and manager.
On or about February 10, 2003, Mumbai applied to the Department for a cabaret license. The Department served Mumbai with three padlock citations for unlicensed cabaret activity at the premises: the first on March 15, 2003, the second on April 12, 2003, and the last on May 24, 2003.
On July 30, 2003, the Department and Prasad, on behalf and in his capacity as president of, Mumbai, executed that certain Consent Judgment/Order (“CJO”), by which the parties resolved the issues raised by two of the above-mentioned padlock citations and attempted to address “numerous” community “concerns” regarding noise, lack of crowd control, and littering[5].
Pursuant to paragraph 5 of the CJO, Mumbai agreed to the following terms:
Respondent also agrees that it will take certain actions to address the numerous community concerns about its past operations by taking the steps set forth below in subparagraphs (a) through (g) so long as Respondent continues in business:
(a)Respondent will immediately hire security guards licensed by the State of New York to provide security on its premises. Security staff shall monitor the noise generated by patrons and would-be patrons gathered outside the premises, as well as monitor the noise level from cars and cabs dropping off patrons for the club. The total number of security personnel to be hired during the hours of operation shall be no fewer than one security guard per forty (40) patrons. Additionally, Respondent agrees to consult with the Department of Consumer Affairs to amend the within security plan should it be determined, after a period of observation and compliance, that the proposed security staffing is found to be excessive or inadequate.
(b)Each day the Respondent opens for business, Respondent shall assign a team of employees to clean the litter in the vicinity of the establishment after the establishment closes.
(c)Respondent shall attend Community Board meetings that take place and agrees to endeavor to be responsive to reasonable and valid community complaints and suggestions of the Community Board. Respondent shall make all other reasonable efforts to avoid disrupting the neighborhood. For a period of one year from the date of the execution of this CJO, Respondent will provide a written monthly report to DCA regarding what if any responsive measures to complaints or suggestions it has taken.
(d)Respondent agrees to take reasonable steps to soundproof the premises to comply with the standards established by the Department of Environmental Protection. Steps to insure adequate soundproofing may include, if reasonably necessary to meet applicable standards: the use of curtains at the front door; using internal waiting areas for club patrons; installing a second set of doors separated from the front doors leading into the premises to minimize leakage of noise; rearranging where the speakers are placed, or lowering the bass on them; and strategically adding soundproofing tiles.
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(g)Respondent shall for one (1) year provide a monthly written report to the Department regarding any citations received from the Police, Fire Department and all other regulatory agencies and the dispositions of said citations when known.
(Emphasis added as presented by the Department’s submissions.)
On July 30, 2003, the Department issued to Mumbai a 30-day operating letter; on September 11, 2003, the Department issued to Mumbai another 30-day operating letter. On September 20, 2003, the Department issued Mumbai a Departmental cabaret license (License No. 1134965).
After executing the CJO, the club closed for approximately two months and reopened in or about September 2003 as a hip-hop club. See B. Prasad Testimony, 4/19/06 Tr. at 37-38. Prior to moving into the ground floor at 250 West 26th Street, New York, New York (the “premises” or the "club") in or about September 2002, Respondents hired Studio Builder, a sound technician company in the business of building and renovating recording studios, to survey the premises. See Resp. Exhibit Q. Studio Builder conducted a soundproofing survey in September 2002 and issued five (5) soundproofing recommendations at that time. See Resp. Exhibit Q. Studio Builder recommended, inter alia, that respondent soundproof the premises by sealing the skylights and windows on the south wall with concrete and installing an eight-inch buffer on the north wall. See Resp. Exhibit Q. Studio Builder examined the properties to the east and west the premises and evidently determined that no soundproofing was required. See Resp. Exhibit Q; Prasad Testimony, Tr. 4/19/06 at 26-32.[6] Prior to opening for business on or about December 28, 2002, respondents soundproofed the north and south walls of the premises in accordance with Studio Builder's recommendations using fiberglass, sound boards and sheetrock. See Prasad Testimony, Tr. 4/19/06 Tr. at 33-34. Respondent also rearranged the location of speakers and installed a limiter at the recommendation of a sound engineer in order to minimize the leakage of sound. See Prasad Testimony, Tr. 4/19/06 Tr. at 55-58; Exhibit J.
Since September 2003, Mumbai generally had been open at least once a week (i.e., for one night comprising parts of the late night hours of one day and the early morning hours of the next), often twice a week (i.e., for two such nights) and, occasionally, thrice a week. (See, e.g., B. Prasad Testimony, 4/19/06 Tr. at 85; A. Testimony, Tr. 4/4/06 at 27; see also Dept. Ex. 34 (Letter of Michael Weinberger to Inspector DeQuatro dated June 24, 2005).)
On April 10, 2005, Officer Burkhardt issued the subject premises with an Environmental Control Board (“ECB”) Notice of Violation and Hearing, No. E 139 576 306, for violating New York City Administrative Code (“Administrative Code”) Section 24-220(a) —Unreasonable Noise-Sound Reproduction Devices. See DCA Ex. 40. On July 15, 2005, the ECB administrative law judge, Kathryn Roake, consequently found that Mumbai violated Administrative Code § 24-220(a) because music could be heard in Weinberger’s apartment and measured to be at 76 db, and ordered Mumbai to pay a civil penalty of $140.00 for this violation, which it did.
On some date previous to November 10, 2005, the City of New York had commenced a still-pending action against respondent and others seeking a judgment preliminarily and permanently enjoining an alleged public nuisance at the premises and closing the establishment for a period of one (1) year, among other requested reliefs. The City of New York v. Mumbai Inc. et al., Index No. 40527/05 (Supreme Court, New YorkCounty). On November 10, 2005, The City of New York and Prasad, on behalf of Mumbai, executed certain stipulation of settlement “so-ordered” by New York Supreme Court Justice Emily Jane Goodman (the “NYPD Stipulation”) (DCA Ex. 2). The provisions of the NYPD Stipulation emphasized by the Department are as follows:
3.Defendant MUMBAI INC. agrees to employ an experienced advisor with knowledge of [the Alcohol Beverage Control (the “ABC”)] Laws, New York State Penal Laws, and security issues. Said defendant has informed the plaintiff that it is their intention to employ the investigative firm Forensic Investigative Associates (hereinafter “FIA”), which is acceptable to the plaintiff, as an advisor to the subject premises to ensure that illegal activity and community disturbances are not occurring either inside or outside the subject premises. Furthermore, the advisor shall review, monitor and assess all internal and external conditions at the subject premises. The term of the advisor shall be for at least a one (1 year period from the date that said advisor commences his or her duties. It is agreed that at least one (1) representative from FIA will be on-site at the subject premises from 11:00 p.m. to 4:30 a.m. every weekend. Furthermore, it is agreed between the parties that FIA representatives will be present on site twice each weekend for the initial six month period. FIA will determine the dates of said inspections. Further, should FIA representatives recommend additional monitoring of the subject premises for this initial period then defendant MUMBAI INC. agrees to institute said recommendations. After the initial six month period, FIA representatives will continue to monitor the subject premises on either Friday, Saturday or Sunday evening. Said advisor shall evaluate all exiting procedures at the club for at least thirty minutes once the club closes for the evening. Said advisor shall commence its duties on or before November 23, 2005.
4.Defendant MUMBAI INC. agrees that FIA shall provide monthly written reports to the plaintiff’s representative, Allen F. Schwartz, Esq. and the 10th Precinct, which shall include, but not be limited to the following:
a.Illegal sale of alcoholic beverages;
b.Security procedures being used at the establishment to ensure compliance with the stipulation;
c.Details of any and all violent/dangerous activity occurring either inside or immediately outside the establishment;
d.Details of any and all incidents where medical personnel are required to provide medical attention to individuals either inside or immediately outside the subject premises;
e.Littering and noise conditions occurring immediately outside the subject premises;
f.Any other illegal or detrimental activity occurring either inside or immediately outside the subject premises;
g.Review security staff and ascertain the need for removal and/or modifications to staff;
h.Recommendations to improve the operation of the establishment;
i.For purposes of this stipulation [the word “]immediately[”] shall be defined as club related activity and/or club related refuse or materials on 26th street between 7th and 8th Avenues.
5.Defendant MUMBAI INC. shall limit entry into the subject premises to individuals twenty-one (21) years of age or older, except on Sunday evenings when women eighteen (18) years or older shall be allowed admittance to the club. On Sunday evenings said defendant shall institute a bracelet system to insure alcoholic beverages are not sold, given or consumed by patrons under age of twenty-one (21). Further, said defendant shall provide the plaintiff with the mechanics of said bracelet system within five (5) days from the execution of this Stipulation.
6.Defendant MUMBAI INC. consents to using magnetometers to monitor and check all individuals entering the subject premises.
7.Defendant MUMBAI INC. consents that all security staff employed at the subject premises will be licensed and bonded by New YorkState. Furthermore, said defendant agrees to abide and institute all recommendations made by FIA relating to the security staff. Defendant further consents that security staff will be increased for any event which management, FIA and the 10th Precinct believe will attract a larger gathering of patrons..
8.Defendant MUMBAI INC. consents that it will utilize, at all times that the subject premises is open for business, an electronic age-verification and recording system when admitting patrons into the club. . . . Said age-verification device shall be fully implemented and operational on or before November 23, 2005. Defendant further consents to maintain an orderly line outside the subject premises at all times. Unruly patrons will be denied entry to the club.
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10.Defendant MUMBAI INC. consents to stagger and supervise patrons exiting the subject premises. Said supervision will focus on reducing the amount of noise within the immediate vicinity of the club. Furthermore, said defendant agrees to establish a clean-up crew to monitor and maintain the area immediately outside of the establishment throughout the period when the establishment is open for business and at the time of closing. Defendant further agrees to legally remove all individuals handing out flyers and notices in front of the subject premises.
11.Defendant MUMBAI INC. consents to employ an acoustic engineer to conduct a follow-up evaluation of the subject premises to assess sound levels and sound proofing within the establishment. Said defendant agrees to abide by and institute all recommendations made by the acoustic engineer relating to appropriate sound levels and soundproofing within the club. . . . Said engineer shall commence his or her duties on or before November 23, 2005, and shall provide copies of his/her reports to plaintiff’s representative, Allen F. Schwartz and the 10th Precinct.
12.Defendant MUMBAI INC. agrees to install a digital video surveillance system, which monitors both the inside and outside of the subject premises, and that said system will be operational at all times in which the establishment is open for business and for thirty (30) minutes after closing. Said defendant further consents to allow members of the New York City Police Department to access this system for cause upon reasonable notice and defendant will maintain all video images for a three (3) week period.
13.Defendant MUMBAI INC. consents to terminate any bartender or wait staff who is convicted of violating the ABC Laws. . . . In addition, said defendant shall develop and provide an employee manual which details the establishment’s policies and procedures to be utilized regarding all internal and external conditions, including but not limited to the illegal sale of alcohol, illegal sale or use of narcotics or marihuana, violent activity, concealed weapons, unruly patrons, noise, intoxicated individuals, litter conditions, dress code and exiting policy. A copy of said manual shall be forwarded to all employees and to the plaintiff on or before November 30, 2005.
15.Defendant MUMBAI INC. consents to the best of its ability to design, create and implement a functional database system as of November 30, 2005 to track patrons banned from the subject premises. . . . .
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18.Defendant MUMBAI INC. consents to post Course of Conduct signs throughout the subject premises. . . .
DCA Ex. 2 (emphases provided by the Department). In accordance with paragraph 24 of the Stipulation of Settlement, the Supreme Court “retain[ed] jurisdiction of this action under the above-captioned index number for the purpose of enforcing this Stipulation and resolving any disputes concerning or relating thereto.”
In December 2005, the landlord of the premises hired Michael Newman (“Mr. Newman”) of the independent New York City consulting engineering firm of Dunn, McNeil and Ramsay, Inc. to inspect the allegations that sound and vibrations were emanating from the premises into the apartments of Messrs. Weinberger and Holmes. On December 15, 2005, Mr. Newman visited Mr. Weinberger’s apartment to conduct a test and was unable to verify Mr. Weinberger’s claim; in his December 19, 2005 report, Mr. Newman characterized the claim as one of alleged “low level disturbance.” However, Mr. Newman himself also “did not observe any Sound Proofing in the Club at all.” See Resp. Exhibit K.