Landlord Fined for $1,250 for Restaurant Shed Permit Violations

DOB issued a violation notice to landlord for performing work without a permit. Landlord had constructed a fully combustible, wood-framed, roofed sidewalk cafe abutting its building. The structure had an opening on each end and reduced pedestrian sidewalk clearance to five feet in width. At a hearing, landlord testified that she had promptly removed the structure but also disputed that it was ever attached to the building. She submitted a copy of a permit issued by the Dept. of Consumer Affairs (DCA) in March 2019 for a "small unenclosed sidewalk cafe" and an email from the DOT authorizing landlord's participation in its Open Restaurant Program. When asked if it obtained a permit before removing the structure, landlord said it was unaware of that requirement. The ALJ fined landlord $1,250 and offered no mitigated penalty since landlord removed the structure without obtaining a work permit.

Landlord appealed and lost. Landlord argued that: (1) the structure never needed a permit; (2) the restaurant using the structure had closed; (3) DCA and DOT had authorized landlord's installation of the wooden structure; and (4) DOB granted permits for emergency work only during the COVID-19 pandemic. So landlord couldn't have obtained a permit at any rate.

ECB ruled that landlord violated Code Section 28-105.1 and established no defense. Neither DCA's permit nor DOT's program addressed landlord's installation of a wooden enclosure and, in fact, the DCA license permitted a small "unenclosed" sidewalk cafe. DOT's email authorized landlord to add only outdoor seating to the city's sidewalk or roadway in front of its restaurants. And DOB published bulletins describing which outdoor seating arrangements required a DOB permit in connection with DOT's Open Restaurant Program. DOT's Open Restaurant Program specifically forbids attaching a structure to the building, and requires maintaining an eight-foot path clearance on the sidewalk for pedestrians. It didn't matter that the restaurant had closed, since the structure remained until removed without a permit.

DOB v. Congress LLC: ECB App. No. 2100490 (6/24/21) [3-pg. doc.]