We are asked in this case to determine whether a municipality may require a person who is in the business of servicing televisions or radios to submit to an inspection of his business records without a warrant or its functional equivalent, e.g., an administrative subpoena. I believe that it may not, and, accordingly, would declare such an ordinance to be unconstitutional insofar as it purports to authorize such inspections. I therefore respectfully dissent in part.
In 1973, the City of New York enacted an ordinance (Administrative Code of City of New York, ch 32, tit B, art 44) which provides for the licensing and regulation by the Commissioner of Consumer Affairs (the Commissioner) of persons engaged in the servicing of television, radio or audio equipment. The ordinance is designed to protect the public “from unethical and financially unstable service dealers” (Administrative Code, § B32-465.0). Besides setting forth a licensing procedure, the ordinance prescribes certain “Duties of licensees”, in pertinent part, as follows:
“1. All work done by a service dealer shall be recorded on an invoice which shall contain the license number and such other detail as may be required by regulations promulgated by the Commissioner. The invoice shall fully, *332separately and clearly describe all service work performed, all parts supplied, the date or dates thereof, and all charges made and computations thereof. One copy of the invoice shall be delivered to the customer and one copy shall be retained by the service dealer for a period of at least three years from the date of such delivery * * *
“3. The service dealer shall comply with regulations promulgated by the commissioner setting forth requirements for estimates or the making of such estimates and shall inform the customer as to the cost thereof prior to rendering same * * *
“5. A service dealer shall maintain such additional records as are required by regulations adopted by the commissioner to carry out the provisions of this article. Such records shall be open and available for reasonable inspection by the commissioner or other law enforcement officials, and shall be kept for a period of three years” (Administrative Code, § B32-472.0, subds 1, 3, 5; emphasis supplied).
Pursuant to his power to implement and enforce the ordinance (Administrative Code, § B32-473.0), the Commissioner has promulgated regulations requiring service dealers to give to each customer a written estimate, a work order, and a final bill. The regulations require that copies of these documents be retained for three years.
At the heart of this case is the provision in the ordinance, quoted above, that “records shall be open and available for reasonable inspection by the commissioner or other law enforcement officials, and shall be kept for a period of three years”. A similar provision is found in subdivision a of section 773-13.0 of the Administrative Code, pertaining to licensed businesses generally. It states that “[a]ll licensed * * * places of business shall be regularly inspected, and reports thereof shall be made to the commissioner”. Also of relevance are subdivisions 1 and 2 of section B32-478.0 of the Administrative Code, entitled “Powers and duties of the commissioner”, stating:
“1. In addition to any other powers of the commissioner, and not in limitation thereof, the commissioner shall have the power to enforce the provisions of this article, to investigate any violation thereof, and to investigate the business, business practices and business methods of any *333person who is or may be subject to this article, if in the opinion of the commissioner, such investigation is warranted. Each person shall be obligated upon the request of the commissioner, to supply such information as may be required concerning the business, business practices or business methods or the proposed business practices or business methods.
“2. For the purpose of enforcing the provisions of this article and in conducting investigations relating to any violation thereof, and for the purpose of investigating the character, competence and integrity of any person who is or may be subject to this article, and the business, business practices and business methods thereof, the commissioner, or commissioner’s designee shall have the power to compel the attendance of witnesses and the production of books and records, in accordance with the provisions of the civil practice law and rules. However, no information supplied by any person at the request of the commissioner concerning his business, business practices or business methods, or proposed business practices or methods shall be disclosed, except as may be necessary for the purpose of enforcing the provisions of this article” (emphasis supplied).
In the event that a service dealer violates any provision of the ordinance or the regulations adopted thereunder, or fails “to comply with any order, demand, regulation or requirement made by the commissioner pursuant to the provisions of this article,” the Commissioner may impose a fine, or may deny renewal of, suspend, or revoke the dealer’s license (Administrative Code, § B32-475.0, subds [h], [i]).
Glenwood TV, Inc. (Glenwood), and Charles TV, Inc. (Charles), are television and radio repair businesses located in Brooklyn, New York, and are licensed by the Commissioner. On June 6,1979, Glenwood was the subject of an inspection conducted by Joseph Laura, an employee of the New York City Department of Consumer Affairs (the Department). After checking to see if the shop’s license and certain required notices to customers were properly displayed, Laura asked to examine the records which the business was required to maintain over a three-year period. His request was refused. Similarly, on June 22,1979, *334Inspector Laura was denied access to the records of Charles.
Subsequently, both licensees were charged by the Commissioner with violating subdivision 5 of section B32-472.0 of the Administrative Code. After a joint hearing before a representative of the Commissioner, each was fined $300 and was ordered “to make available for inspection all required records records requested by the Department within five (5) days of the date of this order”, or face “immediate suspension of the license(s)”. After refusing to comply with this order and a subsequent order of suspension which threatened revocation, the licenses of both were revoked by the Commissioner.
Glenwood and Charles then commenced suit in the form of parallel proceedings pursuant to CPLR article 78, and, in their petitions, requested, among other things, vacatur of the determination that they were guilty of violating subdivision 5 of section B32-472.0, and reinstatement of their licenses. In support of their position, the petitioners set forth the following contentions: (1) that subdivision 5 of section B32-472.0 only requires service dealers to submit to “reasonable inspection”, and Inspector Laura’s inspections were not reasonable; (2) that Glenwood and Charles properly denied access of their records to Mr. Laura inasmuch as the Fourth Amendment of the United States Constitution prohibits compulsory administrative inspections of documents absent a warrant or subpoena; and (3) that the ordinance is unconstitutional inasmuch as it fails to prescribe standards to guide inspectors in its administration.
Special Term, in a decision dated June 1, 1981 (see Matter of Glenwood TV [Ratner], NYLJ, June 9,1981, p 12, col 3), granted the relief requested “in all respects”. The court treated the proceedings as actions for declaratory judgment as well as proceedings brought pursuant to article 78. The court went on, in its decision, to declare that subdivision 5 of section B32-472.0 and section 773-13.0 of the Administrative Code are “unconstitutional under the Fourth Amendment of the United States Constitution insofar as they purport to authorize non-consensual periodic inspections of radio and television repair shops without a *335search warrant” (p 12, col 6). The court explicitly noted, however, that inspections could still be conducted under the ordinance provided that they were “ ‘reasonable’ ”, and opined that in order to be “reasonable” under the Fourth Amendment, an inspection “must be preceded by advance written notice, of at least one week” (p 12, col 6). Further, “[i]f the owner or occupant insists on a search warrant, then the inspector must obtain a warrant before proceeding with the inspection” (p 12, col 6).
The Commissioner has appealed from the judgments entered subsequent to Special Term’s decision. Interestingly, while both judgments declare that subdivision 5 of section B32-472.0 and section 773-13.0 of the Administrative Code are unconstitutional insofar as they purport to authorize inspections without a search warrant, neither says anything about the need for advance written notice prior to such an inspection.
As a procedural matter, I believe that Special Term quite properly treated each of these lawsuits as a hybrid combination of a proceeding pursuant to CPLR article 78 and an action for a declaratory judgment (see Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184, 191-192; Kent’s Lounge v City of New York, 104 AD2d 397; Matter of Heimbach v Mills, 54 AD2d 982). While the issue has not been pressed by the Commissioner, I also believe that Special Term properly ruled that the constitutional issues raised by Glenwood and Charles were properly before it, notwithstanding their failure to litigate the same at the administrative level. The hearing officer lacked the requisite authority to rule on the question of the constitutionality of the inspections, such being a proper subject for the court to determine within the context of a declaratory judgment action or other appropriate judicial proceeding (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57-58; Baddour v City of Long Beach, 279 NY 167, 177; Matter of Celestial Food Corp. v New York State Liq. Auth., 99 AD2d 25, 27, n).
I also agree with Special Term on the merits insofar as it concluded that a television or radio repair shop may not be compelled to produce its business records for inspection in the absence of a warrant or its functional equivalent, e.g., *336an administrative subpoena. However, I disagree with the further conclusion that a service dealer is entitled to advance notice of any such inspection.
My analysis of this case begins with the Supreme Court’s decisions in Camara v Municipal Ct. (387 US 523) and See v City of Seattle (387 US 541), for, in my view, the application of the constitutional principles found therein cannot be avoided. The Supreme Court in Camara applied the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” to administrative inspections, and held that “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant” (Camara v Municipal Ct., supra, pp 528-529). At issue in Camara (supra, p 526), was the validity of an ordinance which allowed a building inspector “ ‘the right to enter, at reasonable times, any building’ ” in order to determine compliance with the city’s housing code. Any person who prohibited such access was subject to criminal sanctions. Balancing the need for a warrantless search and the governmental purpose to be served against the invasion which such a search entailed, the court held that a warrant was required and that, absent an emergency, a person could properly withhold his consent to a search of his house where there was no warrant. Inspections for the purpose of enforcing a building code were not, therefore, held to fall within the “carefully defined classes of cases” which are exempt from the warrant requirement.
On the same day that it decided Camara (supra), the Supreme Court also rendered its opinion in See v City of Seattle (387 US 541, supra) in which the court held that the Fourth Amendment and the principles set forth in Camara were applicable to businesses as well as residences. Specifically, the court held that “administrative entry, without consent, upon the portions of commercial premises which [are] not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure” (See v City of Seattle, supra, p 545).
Thus, it appears to me that, unless some exception to the warrant requirement applies, Camara and See (supra) *337would require the issuance of a warrant or its functional equivalent to conduct the inspections sought by the Commissioner of Glenwood’s and Charles’ business records.
The majority and the Commissioner attempt to short-circuit an analysis of the issues at bar based on Camara principles by arguing that Glenwood and Charles have no legitimate expectation of privacy in the business records which they are required by law to keep. Remarking that these documents “are merely copies of original written estimates, work orders, and final bills that the service dealers gave their customers”, the Commissioner argues that the Fourth Amendment is inapplicable. Since the documents have already been made public, by giving the originals to customers, a service dealer allegedly does not retain any privacy interest in them. Reliance in this regard is placed on United States v Miller (425 US 435), in which the Supreme Court held that a depositor cannot complain on Fourth Amendment grounds when his bank turns over records of his checks and deposits to government agents.
In my view, Miller (supra) is distinguishable. If the'issue at bar was the propriety of petitioners’ customers turning over to appellant copies of the bills given to them by petitioners, then Miller would be squarely on point. However, individuals do not forfeit their expectation of privacy in an item merely because a third party has access to it. Letters provide a good analogy. Just because a letter has been sent to, and presumably read by, a third party does not mean that the writer/sender has given up his expectation of privacy in the copy retained by him.
The same contention being urged upon us by the Commissioner was argued unsuccessfully by the Secretary of Labor in Marshall v Barlow’s, Inc. (436 US 307), a case involving the authority of Congress to authorize warrant-less inspections under the Occupational Safety and Health Act of 1970 (OSHA). The Secretary contended that since employees of a business have access to the so-called private areas of the business, OSHA investigators should also, since the exposure of these areas to the employees vitiated the employer’s expectation of privacy therein. The Supreme Court retorted: “That an employee is free to report, and the Government is free to use, any evidence of noncom*338pliance with OSHA that the employee observes furnishes no justification for federal agents to enter a place of business from which the public is restricted and to conduct their own warrantless search” (Marshall v Barlow’s, Inc., supra, p 315).
As for the further contention that the documents in question fall within the “ ‘required records’ exception”, the Commissioner maintains that this exception stands for the proposition that “whatever minimal expectations of privacy television, radio and audio dealers may have in their business records generally, they can claim none in the copies they keep * * * which they are required by law to keep, subject to inspection”. Both the Commissioner and the majority cite to numerous cases in support of this position, but as the petitioners correctly point out, all of these cases “involve some form of * * * process”, such as a subpoena or an injunction. What is involved in this case, however, is a demand to inspect business documents without any process, followed, eventually, by a fine and license revocation, without judicial sanction, when consent is refused. None of the cited cases allows for such a procedure (see, e.g., California Bankers Assn. v Shultz, 416 US 21; Interstate Commerce Comm. v Gould, 629 F2d 847; Matter of Hynes v Moskowitz, 44 NY2d 383). Indeed, such a procedure is far different, conceptually, from a typical filing requirement (cf. Marchetti v United States, 390 US 39, 56, n 14).
Were I, nevertheless, to accept the position that the petitioners have no legitimate expectation of privacy in the records at issue, I would be forced to conclude that the principles of Camara (supra) generally have no application to inspections involving commercial documents. However, such a holding would, in my view, violate the letter and the spirit of the Fourth Amendment, which protects, among other things, the “right of the people to be secure in their * * * papers”. If anything, the need to protect privacy interests in documents and other records is more vital than with other areas of Fourth Amendment concern. Thus, in discussing the functions a warrant should perform, the Supreme Court noted in Marshall v Barlow’s, Inc. (436 US 307, 324, n 22, supra) that “[djelineating the scope of a *339search with some care is particularly important where documents are involved”. And in See v City of Seattle (387 US 541, 544-545, supra), the court looked at its prior subpoena cases to derive its conclusion that warrantless inspections of commercial premises are presumptively improper. It noted (p 544) that “when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome” (see, also, Meyerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; Matter of Carvel Corp. v Lefkowitz, 77 AD2d 872). Further, “while the demand to inspect may be issued by the agency, in the form of an administrative subpoena, it may not be made and enforced by the inspector in the field, and the subpoenaed party may obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply” (See v City of Seattle, supra, pp 544-545; see Matter of Hynes v Moskowitz, 44 NY2d 383, 393, supra). With these principles in mind, the Supreme Court then concluded: “[W]e find untenable the proposition that the subpoena, which has been termed a ‘constructive’ search * * * is subject to Fourth Amendment limitations which do not apply to actual searches and inspections of commercial premises” (See v City of Seattle, supra, p 545). Reasoning in the opposite direction, I would conclude that, generally, absent a subpoena or consent, the same Fourth Amendment protections which apply to the nonpublic areas of commercial premises should also apply to the inspection of records conducted at a business site.
There is, of course, a recognized exception to the general rule that, absent consent or an emergency, an administrative search requires a warrant. Thus, in certain circumstances, industries which are “closely regulated” and “long subject to close supervision and inspection” or which are “pervasively regulated” can be subjected to warrantless inspections (Colonnade Corp. v United States, 397 US 72, 74, 77; United States v Biswell, 406 US 311, 316). Industries involving firearms (United States v Biswell, supra), liquor (Colonnade Corp. v United States, supra), and the *340like, all come within the “‘carefully defined classes of cases’ ” mentioned in Camara (supra) (Marshall v Barlow’s, Inc., 436 US 307, 313, supra), as the law presumes that “when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation”, including the power to conduct warrantless searches, if authorized (Marshall v Barlow’s, Inc., supra, p 313; Sokolov v Village of Freeport, 52 NY2d 341, 346, n 1). However, more to the point than a presumption of consent, in such industries warrantless inspections may advance urgent governmental interests which outweigh the interest in privacy (United States v Biswell, supra, pp 315-317; Colonnade Corp. v United States, supra, pp 76-77). Nonetheless, there is one caveat, for even when an industry is pervasively regulated or has a long history of close supervision, warrantless searches are not necessarily proper. The Legislature must still specifically authorize inspections without a warrant, and the regulatory inspection system must be “carefully limited in time, place, and scope” (United States v Biswell, supra, p 315; Colonnade Corp. v United States, supra, p 77). As more recently expressed by the Supreme Court in a case involving the pervasively regulated mining industry, the Legislature must have “reasonably determined that warrantless searches are necessary to further a regulatory scheme and the * * * regulatory presence [must be] sufficiently comprehensive and defined [so] that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes” (Donovan v Dewey, 452 US 594, 600).
Significantly, the Commissioner does not attempt to show that the television and radio repair shop industry is closely regulated in the sense of the Colonnade/Biswell exception. Nor could he with any degree of persuasiveness. The only State statutes of which I am aware that regulate this business are sections 597 and 598 of the General Business Law, imposing fines on laundries, shoemakers, television and radio repair shops, and the like for not giving customers receipts on request when merchandise is left to be worked on. These sections are of relatively recent vintage, having been passed in 1971. The New York City *341ordinance involved here, passed in 1973, is fairly rigorous. However, it is primarily confined to that aspect of the business which concerns honesty to patrons. Applying Colonnade/Biswell to this type of case would cause the exception to swallow the rule favoring warrants (see Marshall v Barlow’s, Inc., 436 US 307, 313, supra).
Nonetheless, the majority and the Commissioner vigorously argue that the inspection system employed by the Department, pursuant to which Inspector Laura visited Glenwood and Charles, is carefully designed, so that the abuses which allegedly concerned the court in Camara, See and Marshall (supra) are not present. Thus, according to the Commissioner, “nothing can be gained through individualized review of the inspector’s authority by a magistrate in advance of inspection”. Reference is made to the hearing record, to the effect that the Department has adopted a plan whereby service dealers are randomly chosen for inspection by computer. Once selected, the Department’s dispatch unit designates the employee who is to make the inspection. Inspectors do not have discretion as to which dealers they will visit, and it would be unusual for a service dealer to be subject to more than one inspection a year. A standard form is used to insure that inspections are conducted in a uniform manner, and it generally takes no longer than half an hour to complete an inspection, providing there are no interruptions.
Notably, petitioners dispute the effectiveness of this alleged plan. At the hearing, Glenwdod’s president testified that within the year prior to the hearing there had been 4 to 6 inspections, taking from 1 to 2 hours to complete. He stated that the resultant disruptions made it impossible to do business. A representative from Charles testified to like effect. In any event, I disagree with the contention that an inspection plan devised by the Department can serve as a substitute for the warrant requirement. How the Department designs an inspection system or procedure does not affect the question of whether or not a warrant is needed, once it is concluded that the television and radio repair industry is not pervasively or closely regulated. That an inspection may be carefully limited in time, place and scope does not necessarily mean that it can *342proceed without prior judicial approval. Such is only the case when the industry involved is one of the Colonnade! Biswell type, that is, is pervasively or closely regulated, and where the Legislature has reasonably determined that warrantless searches are necessary to monitor the industry (Donovan v Dewey, 452 US 594, supra; United States v Biswell, 406 US 311, supra; Colonnade Corp. v United States, 397 US 72, supra). Absent affirmative findings as to these two requirements, statutory or regulatory safeguards cannot substitute for the individualized review imposed by a warrant procedure (Camara v Municipal Ct., 387 US 523, 531-533, supra).
Thus, in the case of Sokolov v Village of Freeport (52 NY2d 341, supra), the municipality attempted to argue that procurement of a warrant was unnecessary because the limited nature of its mandatory inspections of prospective rental premises was so restricted as to render minimal any resulting intrusion. Our Court of Appeals, citing Camara (supra), found that “there would nevertheless be a serious intrusion upon the interests of the owner deserving of constitutional protection” (Sokolov v Village of Freeport, supra, p 347). Similarly, in Marshall v Barlow’s, Inc. (436 US 307, 315, supra), the Secretary of Labor argued that the restrictions placed on OSHA inspections obviated the need for a warrant. Furthermore, the Secretary maintained that the warrantless inspections were necessary to further the purposes of OSHA, a contention which is singularly missing in the Commissioner’s repertoire of arguments in this case. The Supreme Court disagreed with the Secretary of Labor. It noted that a warrant “would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Also, a warrant would then and there advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed” (Marshall v Barlow’s, Inc., supra, p 323).
The functions of a warrant procedure are indeed vital to the protection of our Fourth Amendment rights. As noted in Marshall (supra), one function is to inform the citizen. In nonpervasively regulated businesses, “when the inspector *343demands entry [sans warrant], the occupant has no way of knowing whether enforcement of the [ordinance] involved requires inspection of his premises, no way of knowing the lawful limits of the inspector’s power to search, and no way of knowing whether the inspector himself is acting under proper authorization” (Camara v Municipal Ct., 387 US 523, 532, supra). Further, review by a neutral magistrate will tend to prevent abusive searches. No matter how circumscribed a regulatory inspection system is, without a warrant the citizen is subject to the discretion of the officer in the field. The system in this case presents a good illustration. There is no evidence in the record that, under the Department’s plan, inspections must occur at specified times. Further, while, generally, inspections only take half an hour or less, what would prevent an oppressive or vindictive inspector from taking all day, resulting in a tremendous disruption in business? Glenwood and Charles claim that inspections sometimes can take up to IV2 to 2 hours to complete. Control over the scope of an inspection is particularly important where documents are involved (Marshall v Barlow’s, Inc., supra, p 324, n 22). The documents in question must be retained for three years, and so far as the record shows, there is nothing to prevent an inspector from arbitrarily demanding to see, and then reading, every document going back the full three years. Done in the shop, perhaps on a busy afternoon, such an inspection could be very disruptive of business. While, in practice, this would probably happen rarely, it should not be left to the discretion of the employee in the field.
As already stated, an important function of a warrant is to assure the individual that there has been judicial consideration of the reasonableness of the inspection. Thus, it cannot be said that the imposition of a civil or criminal penalty for refusing to comply with an inspection demand supported by a warrant is unfair because of a lack of judicial involvement. A similar opportunity for judicial review, through a motion to quash, sanctifies the imposition of penalties when a person or business refuses to comply with a subpoena (Donovan v Lone Steer, 464 US __, 104 S Ct 769; See v City of Seattle, 387 US 541, 544-545, supra). For this reason, process by subpoena does not *344violate the Fourth Amendment, and a subpoena can serve as an analogue to a warrant to inspect records. In fact, the Supreme Court has held that, with administrative searches, an inspection is proper if supported by a warrant or its functional equivalent (Marshall v Barlow’s, Inc., 436 US 307, 325, n 23, supra; see, also, Donovan v Dewey, 452 US 594, 604-605, supra). A subpoena, with the concomitant right to judicial review, is just such an equivalent.
The Commissioner maintains that his orders are not self-executing and that an order or judgment from a court is necessary to compel compliance. Therefore, according to both the Commissioner and the majority, the petitioners have at their disposal sufficient judicial procedures to safeguard their constitutional rights. I disagree with both the premise and the conclusion. Whether or not the Commissioner needs a judgment in order to execute on a fine, he still has the authority to suspend or revoke a license on his own (Administrative Code, §§ B32-475.0, 773-4.0, subd e). The only review possible is by way of a proceeding under CPLR article 78 or an action for a declaratory judgment. This is no more a substitute for a warrant requirement than was the writ of prohibition brought by the homeowner in Camara v Municipal Ct. (387 US 523, supra). To be the functional equivalent of a warrant, judicial review in some form must, at least, be available prior to the imposition of any penalty for refusing to comply with an inspection demand and prior to any act of force which would compel a search despite protest (see Marshall v Barlow’s, Inc., supra, p 325, n 23; See v City of Seattle, supra, p 545; cf. Matter of Hynes v Moskowitz, 44 NY2d 383, supra).
While I would therefore conclude that Glenwood and Charles are entitled to the rescission of the fines imposed against them, reinstatement of their licenses, and a declaration that the ordinance is unconstitutional insofar as it purports to authorize an inspection of required records without a warrant or its functional equivalent, I would hasten to note that, as the Court of Appeals reminded us in Sokolov v Village of Freeport (52 NY2d 341, 348, supra), “the Camara opinion expressly provide [s] that the strict standards attending the issuance of a warrant in criminal cases are not applicable to the issuance of a warrant *345authorizing an administrative inspection”. Thus, as the Supreme Court reiterated in See v City of Seattle (supra, p 545), “[t]he agency’s * * * demand for access [must] of course be measured, in terms of [the] probable cause [necessary] to issue a warrant, against a flexible standard of reasonableness that takes into account the public need for effective enforcement of the particular regulation involved”.
The need to effectively enforce the legitimate goals of the ordinance also compels me to disagree with Special Term’s conclusion that a service dealer is entitled to one week’s notice prior to an inspection. While the New York City Council could certainly add this requirement to the ordinance, or, alternatively, the Commissioner might choose to promulgate such a regulation, the Constitution clearly does not require it. To the contrary, effective enforcement may require surprise inspections, albeit, supported by a warrant or its functional equivalent (See v City of Seattle, 387 US 541, 545, n 6, supra; see, also, Marshall v Barlow’s, Inc., 436 US 307, 316-320, supra). Moreover, I would not preempt warrantless inspections where a true emergency exists (Sokolov v Village of Freeport, supra, p 349; see People v Calhoun, 49 NY2d 398). While it is difficult in the case of business records to envision such an emergency, I am not prepared to say that such could never arise.
Accordingly, I would modify the judgments appealed from so as to declare that subdivision 5 of section B32-472.0 and section 773-13.0 of the Administrative Code of the City of New York are unconstitutional insofar as they purport to authorize nonconsensual periodic inspections of the records of television and radio repair businesses without a warrant or its functional equivalent, and, as so modified, affirm.*
Thompson and Rubin, JJ., concur with Titone, J. P.; Gibbons, J., dissents in part and votes to modify the judgments appealed from in an opinion in which Bracken, J., concurs.
*346Two judgments of the Supreme Court, Kings County, both entered July 20, 1981, reversed, on the law, with one bill o of costs, determinations of the Department of Consumer Affairs confirmed, and proceedings dismissed on the merits, and it is declared that subdivision 5 of section B32-472.0 and section 773-13.0 of the Administrative Code of the City of New York are constitutional.
Metropolitan Electronic Tel. Serv. Dealers Assn. v Guggenheimer (51 AD2d 922, mot for lv to app den 39 NY2d 709) is not to the contrary, as the court therein was never called upon to pass on this aspect of the ordinance.