Bar defeats NOV charging violation of C of O

East Village building’s C of O authorized meeting room, not current bar use. In 1922, the owner of 85 East 4th Street in Manhattan obtained a certificate of occupancy authorizing the building’s second floor to be used as a meeting room. Since 1948 the second floor had instead been used as a tavern space, currently occupied by the KGB Bar. On June 9, 2010, Buildings issued the building’s current owner, Culture House, a notice of violation for permitting a use contrary to the C of O.

At a hearing, Culture House argued that it was not required to obtain a new C of O for the changed use of the second floor. Pursuant to the 1968 building code, which applied to buildings predating the 2008 building code, a new C of O was not needed for changes within the same zoning use group. In this case, a meeting room and an eating and drinking establishment are both included within zoning Use Group 6. Culture House further claimed that no changes had been made to the premises that would trigger a need for a new C of O. The 1922 C of O permitted up to 40 occupants, and the bar had seating for a maximum of 37 patrons.

An ALJ sustained the violation. The ALJ credited that the building’s second floor had been used as a bar since the 1940s, and recognized that the 1968 building code applied. According to the ALJ, the 1968 code did not require a new C of O where there was an approved Alteration 2 filing. Culture House, however, failed to show such filing was made, so the ALJ concluded that the occupancy was inconsistent with the C of O. The ALJ further noted that even though the zoning use group had not changed, the building code occupancy group had changed. Culture House appealed to the Environmental Control Board.

The Board dismissed the NOV, finding that the second floor bar was a continuation of a lawful, existing use. Under the applicable 1968 building code, a new C of O was not required since the changed use from a meeting room to a bar fell within the same zoning use group. Because the change in use was exempt from the new C of O requirement, it was a lawful use. The 2008 building code permitted any lawful use or occupancy of an existing building to continue, unless a retroactive change was specifically required by the building code or other applicable laws or rules. Buildings failed to show that the change in use to a bar required any such retroactive change, a special permit, or compliance with other laws or rules.

NYC v. Culture House, ECB Appeal No. 1000939 (May 19, 2011). CITYADMIN