Practice point: The Appellate Division found substantial evidence in the record to support the determination that the petitioner violated the New York City
Noise Control Code (Administrative Code § 24-231[a][2]) by allowing
music from his store to reach an audible level inside the upstairs
apartment of 50-51 decibels (dB), exceeding the 45 dB permissible limit
in a frequency of 100 hertz (Hz).
The court found that it was irrelevant that the inspector used the one-third octave noise meter for the first
time at this inspection site as he testified that he had previously received
two days of training in its use and knew how it worked, and that it
worked similarly to other noise meters. That the investigator was
directed to contact his supervisor after taking the readings, rather
than issue a violation immediately, does not render the measurements inherently suspect.
The court found no merit to the argument that the
inspector deviated from standard procedure by testing the noise level at
100 Hz, a frequency not on the preprinted form as the form notably leaves
room for an additional reading at another frequency. Petitioner's
contention that the inspector should have taken lengthier readings of
the ambient sound level when the music was off because the meter might
have recorded a higher decibel level over time, was considered and properly rejected by the Administrative Law Judge. The inspector
stated that a longer reading could have shown a higher level, but that
his three readings taken within one minute were consistent at 43 dB. In
any event, a reading of 43 dB is a full two decibels lower than the
maximum ambient level allowed of 45 dB.
Student note: Because there is in the whole record substantial evidence for the Administrative Law Judge's determination that petitioner violated the Noise Code, judicial review is at an end.
Case: Matter of Zabari v. New York City Dept. of Envtl. Protection, NY Slip Op 08201 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Lights out.
