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Briga Landscaping, Inc. - Order, January 14, 2003

Order, January 14, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 33 and 71 of
the New York State Environmental Conservation Law ("ECL") and Part 325 of Title 6 of
the Official Compilation of Codes Rules and Regulations of the State of New York ("6 NYCRR")

- by -

BRIGA LANDSCAPING, INC. and
RAYMOND SCHULZ,

Respondents.

Westchester County

ORDER

Case No: 3-20010702-83

WHEREAS:

  1. Respondent, Briga Landscaping, Inc., is a New York corporation operating a pesticide business located at 5 Briga Lane in the City of White Plains, Westchester County, New York.
  2. Respondent, Raymond Schulz, is a certified pesticide applicator (#C3663007) for Briga Landscaping, Inc. Mr. Schulz resides at 10 Coralyn Avenue in White Plains, New York.
  3. In 1999 and 2000, respectively, Respondent Raymond Schulz filed a Commercial Applicator's Annual Report in which the Respondent listed the pesticides he had applied during those years. The Respondent listed the name of his registered pesticide business as Briga Landscaping, Inc., business registration number 10167.
  4. According to the records of the New York State Department of Environmental Conservation (the "Department"), the Respondent's business was not registered with the Department in 1998, 1999, or 2000.
  5. Pursuant to Section 33-0907(1) of the Environmental Conservation Law ("ECL"), a pesticide business must register with the commissioner annually. Pursuant to Section 325.23(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), a pesticide business must register with the Department annually.
  6. Pursuant to ECL Section 33-1301(8-a), it is unlawful "for any person or business to engage in the business of applying pesticides unless the business is registered by the commissioner."
  7. As evidenced by the signed United States Postal Service return receipts, attached as part of Exhibit A to the Affirmation of Jennifer David Hesse, Esq., dated January 14, 2002, Respondent Briga Landscaping, Inc. was served with the Department Staff's Notice of Hearing and Complaint on November 9, 2001. Respondent Raymond Schulz was served with the Department Staff's Notice of Hearing and Complaint on November 20, 2001.
  8. Pursuant to Section 622.4(a) of 6 NYCRR, the Respondents were required to answer the complaint within twenty days of receipt. With respect to Respondent Briga Landscaping, Inc., the twentieth day ran on November 29, 2001. With respect to Respondent Raymond Schulz, the twentieth day ran on December 10, 2001.
  9. Department Staff did not receive an answer to the complaint.
  10. Section 71-2907(1) of the ECL provides that any person who violates any provision of ECL Article 33 or any rule, regulation or order issued thereunder, or commits any offense described in ECL Section 33-1301, shall be liable for a civil penalty not to exceed $5,000 for a first violation, and not to exceed $10,000 for a subsequent violation.

NOW, THEREFORE, have considered this matter, it is ORDERED that:

  1. The Respondents have failed to timely serve and file an answer to the complaint, and thus, the Respondents have waived their right to a hearing on the cause of action, and the Department Staff are entitled to a default judgment pursuant to 6 NYCRR Section 622.15;
  2. The Respondents' activities, as described above, are in violation of ECL Section 33-0907(1), ECL Section 33-1301(8-a), and 6 NYCRR Section 325.23(a);
  3. As a result of the Respondents' violation, the Respondents are hereby assessed a civil penalty in the amount of fifteen thousand dollars ($15,000). The full amount of the penalty shall be paid by certified check or money order to "NYSDEC," Attention: Regional Director, New York State Department of Environmental Conservation, Region 3, 21 South Putt Corners Road, New Paltz, New York 12561-1696, within thirty (30) days of service of this Order;
  4. All communications between the Respondents and Department Staff concerning this Order shall be made to the Department's Region 5 Director, New York State Department of Environmental Conservation, Region 3, 21 South Putt Corners Road, New Paltz, New York 12561-1696;
  5. The Respondents are hereby directed to cease and desist from any continuing or further violations and are ordered to strictly comply with the ECL; and
  6. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
January 14, 2003

Robert Capolongo
Briga Landscaping, Inc.
5 Briga Lane
White Plains, New York 10605

Raymond Schulz
10 Coralyn Avenue
White Plains, New York 10605

Jennifer David Hesse, Esq.
Assistant Regional Attorney
NYSDEC Region 3
Division of Legal Affairs
21 South Putt Corners Road
New Paltz, New York 12561-1696

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Articles 33 and 71 of the Environmental Conservation Law ("ECL")
and Part 325 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York ("6 NYCRR")

- by -

BRIGA LANDSCAPING, INC. and
RAYMOND SCHULZ,

Respondents.

Summary Report: Motion for Default Judgment

File No. 3-20010702-83

PROCEEDINGS

In a complaint dated November 5, 2001 (the "Complaint"), the Department of Environmental Conservation (the "Department") asserted that Respondents Briga Landscaping, Inc. and Raymond Schulz (collectively, "Respondents"), engaged in the commercial application of pesticides during a period (1999 and 2000) when the Respondents' pesticide business registration had expired. The Department's Complaint alleged that, in 1999 and 2000, Respondent Raymond Schulz filed a Commercial Applicator's Annual Report in which Respondent Schulz listed the pesticides he had applied during that period. The Respondent listed the name of his registered pesticide business as Briga Landscaping, Inc., business registration number 10167. According to the Complaint, Respondents violated Environmental Conservation Law ("ECL") Sections 33-0907(1) and 33-1301(8-a), and Section 325.23(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), because Respondents engaged in the commercial application of pesticides during a period when Respondents' business registration had expired. In its Complaint, the Department asked the Commissioner to find Respondents in violation of Article 33, and to assess a statutorily authorized civil penalty pursuant to ECL Article 71.

With the Complaint, the Department served a Notice of Hearing dated November 5, 2001 (the "Notice"). The Notice stated that the Respondents' answer was due within twenty days of receipt of the Complaint. The Notice stated further that a default and waiver of Respondents' right to a hearing would result if the Respondents did not file a timely answer.

Pursuant to 6 NYCRR Section 622.15, the Department has moved for a default judgment against the Respondents. Department Staff made its motion on or about January 14, 2002, by mailing to Respondents the following papers:

  • a Notice of Motion for Default Judgment dated January 14, 2002;
  • the Affirmation of Jennifer David Hesse, Esq. In Support of Motion for Default Judgment, dated January 14, 2002 (the "Hesse Affirmation"); and
  • a proposed Order;

and by filing the above documents, on January 18, 2002, with the Department's Office of Hearings and Mediation Services.

According to the Hesse Affirmation, the Respondents did not file a timely answer to the Complaint. The exhibits attached to the Hesse Affirmation were offered to show proof of service of the Complaint and Notice of Hearing upon the Respondents [Exhibit A], and a proposed order [Exhibit B].

The Respondents have not opposed the motion, and, as of the date of this Summary Report, the Office of Hearings and Mediation Services had not received a reply from the Respondents to the motion.

DEFAULT PROCEDURES

Section 622.15 of 6 NYCRR, "Default Procedures," provides in pertinent part:

A respondent's failure to file a timely answer or, even if a timely answer is filed, failure to appear at the hearing or the pre-hearing conference (if one has been scheduled pursuant to section 622.8 of this Part) constitutes a default and a waiver of respondent's right to a hearing. If any of these events occurs the department staff may make a motion to the ALJ for a default judgment.

The motion for a default judgment may be made orally on the record or in writing and must contain:

  • proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding;
  • proof of the respondent's failure to appear or failure to file a timely answer; and
  • a proposed order.

Upon a finding by the ALJ that the requirements of subdivision (b) of this section have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner.

Thus, Section 622.15(a) allows the Department to request a default judgment if a respondent does not file an answer to a complaint in a timely manner, or does not appear at a pre-hearing conference when one has been scheduled pursuant to Section 622.8. When considering a motion for default judgment, the scope of the administrative law judge ("ALJ")'s review is limited to whether the Department has met the requirements outlined in Section 622.15(b), and to submit "a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner." 6 NYCRR Section 622.15(c). Therefore, the Findings set forth below are based upon the papers submitted, as identified above, and are limited as prescribed by Section 622.15(c).

FINDINGS

  • The Hesse Affirmation indicates that, on November 5, 2001, the Notice of Hearing and the Complaint were sent certified mail, return receipt requested, addressed to Respondents Briga Landscaping, Inc., and Raymond Schulz.
  • The Hesse Affirmation indicates further that the United States Postal Service returned the signed return receipt for certified mail from Briga Landscaping, Inc., bearing a delivery date of November 9, 2001. The Hesse Affirmation also indicates that the United States Postal Service returned the signed return receipt for certified mail from Raymond Schulz, bearing a delivery date of November 20, 2001. Copies of both return receipts are attached as part of Exhibit A to the Hesse Affirmation.
  • The Department's Complaint asserted that Respondents engaged in the commercial application of pesticides during a period (1999 and 2000) when the Respondents' pesticide business registration had expired. According to the Complaint, in 1999 and 2000, Respondent Raymond Schulz filed a Commercial Applicator's Annual Report in which Respondent Schulz listed the pesticides he had applied during that period. The Respondent listed the name of his registered pesticide business as Briga Landscaping, Inc., business registration number 10167. According to the Complaint, Respondents violated Environmental Conservation Law ("ECL") Sections 33-0907(1) and 33-1301(8-a), and Section 325.23(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), because Respondents engaged in the commercial application of pesticides during a period when Respondents' business registration had expired. In its Complaint, the Department asked the Commissioner to find Respondents in violation of Article 33, and to assess a statutorily authorized civil penalty pursuant to ECL Article 71.
  • The Department's November 5, 2001 Notice of Hearing stated that an answer was due within twenty days of receipt of the Complaint. The Notice stated further that a default and a waiver of the Respondents' right to a hearing would result if Respondents did not file a timely answer.
  • According to the Hesse Affirmation, no response to the Complaint has been received. Respondent Briga Landscaping, Inc.'s time to answer expired on November 29, 2001. Respondent Raymond Schulz's time to answer expired on December 10, 2001.
  • On January 14, 2002, this motion was mailed to the Office of Hearings and Mediation Services, with a copy to the Respondents. The motion included (1) proof of service of the November 5, 2001 Notice of Hearing and the Complaint; (2) proof of the Respondents' failure to file a timely answer; and (3) a proposed order.
  • No response to the Department's motion has been filed with the Office of Hearings and Mediation Services.
  • The requirements for a default judgment have been met adequately as prescribed by 6 NYCRR Section 622.15(b).

CONCLUSIONS AND RECOMMENDATIONS

The Department may commence an administrative proceeding with service of a notice of hearing accompanied by a complaint. 6 NYCRR Section 622.3(a)(1). Service of the notice of hearing and complaint must be by personal service consistent with the Civil Practice Law and Rules, or by certified mail. 6 NYCRR Section 622.3(a)(3). Service is complete when the notice of hearing and complaint are received. Id. The copies of the signed, domestic mail return receipts [Exhibit A to the Hesse Affirmation] establish that the Department duly served the November 5, 2001 Notice of Hearing and the complaint upon the Respondents by certified mail in a manner consistent with Section 622.3(a)(3).

The Hesse Affirmation is unrefuted, and establishes that the Respondents did not file a timely answer. The November 5, 2001 Notice of Hearing informed the Respondents that failure to timely answer would result in a default, and a waiver of Respondents' right to a hearing. Therefore, I conclude that the requirements for a default judgment, as outlined in 6 NYCRR Section 622.15(b), have been met.

Accordingly, the Commissioner should grant the motion for a default judgment. In granting the motion, the Commissioner should find that the Respondents engaged in the commercial application of pesticides during a period of time when their pesticide business registration was not in force, having expired. Based upon these findings, the Commissioner should conclude that the Respondents violated ECL Sections 33-0907(1) and 33-1301(8-a), and 6 NYCRR Section 325.23(a). This Summary Report and Proposed Order (attached hereto) are referred to the Commissioner for final determination

_____________/s/_____________
Maria E. Villa
Administrative Law Judge

Albany, New York

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