In Matter of GH Ville v. New York City Envtl. Control Bd., 194 Misc 2d 503, 755 N.Y.S.2d 784 [Sup. Ct, NY County 2002], an inspector had issued a summons to a restaurant because he could hear music emanating from the restaurant while standing outside on the sidewalk. The court granted the Article 78 petition, vacated the determination of the ECB appeals board, set aside the ALJ's ruling, and ordered the return of the $ 700 penalty, because it found that ECB's determination was not supported by adequate proof, and, therefore, the agency's decision was arbitrary and capricious. The court's decision was based in part on the testimony of the inspector that the door to the restaurant was closed when he heard the music, and there was no testimony of any open doors, windows or other apertures. Moreover, the owner of the restaurant testified that, at the time in question, a birthday party was taking place, and the purpose for the music was for the enjoyment of the patrons, and not to attract customers. The court determined, therefore, that the music was not of a commercial nature, and neither the ALJ nor the ECB appeals board determined that there was a device "in front of or outside of any building" or that it was heard "in or through any aperture of such building."