Private Communications Ass'n v. Gabel

Judgment dismissing the petition in an article 78 proceeding to annul a portion of “ Operational Bulletin No. C-15 ” of respondent City Rent and Rehabilitation Administrator, unanimously reversed, on the law, with $50 costs to the appellant, and the petition granted. “ Operational Bulletin No. C-15 ” provides for rent increases in rent controlled buildings for the installation of various types of bell and buzzer systems. To the extent that it requires the landlord to use the services of a licensed electrician on systems using less than 50 volts of electricity the bulletin is arbitrary and capricious and not based on any record, showing or finding that such extreme action was necessary to ensure the reliability of installed signalling systems (Administrative Code, § Y51-9.0, subd. b; CPLR 7803). The Administrative Code of the City of New York does not require a license for the installation of electrical wiring or equipment unless they are for purposes of light, heat, or power or are for signalling systems operating on 50 volts or more (Administrative Code, § B30-4.0, subd. 55; § B30-17.0). Thus the effect of the bulletin is to impose an additional restriction on unlicensed electricians not required by the Administrative Code. The Administrator’s order denying the petitioner’s protest is not based on any record, showing, or finding that installations by unlicensed electricians are not reliable or that a satisfactory procedure for inspecting the work of both types of electricians could not be developed. Unsupported suspicions or speculation that such may be the case *428 are not sufficient to support such a determination (cf. Matter of Stork Rest. v. Boland, 282 N. Y. 256, 273-274 ). In the absence of any showing of the necessity therefor the challenged bulletin would without question have the effect of arbitrarily excluding competent persons from lawful employment, raising constitutional issues on which it is not now necessary for the court to pass (Smith v. Texas, 233 U. S. 630 ). Concur — Botein, P. J., Breitel, McNally, Eager and Steuer, JJ.