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Charon Marine Industries Inc. - Ruling 2, August 22, 2003

Ruling 2, August 22, 2003

STATE OF NEW YORK : DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
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In the Matter of the Alleged Violation of Article 33 of
the Environmental Conservation Law and Parts 325 and 326 of
Title 6 of the Official Compilation of Codes, Rules and
Regulations of the State of New York by

CHARON MARINE INDUSTRIES, INC. AND ROY
K. FLOOD, individually and as principal officer
of CHARON MARINE INDUSTRIES, INC.
Respondents

RULING ON MOTION TO SUPPRESS EVIDENCE

R1-20021118-260
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Procedural Background

The New York State Department of Environmental Conservation (DEC Staff) commenced this action pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) Part 622 by service of a Notice of Hearing and Complaint on Charon Marine Industries, Inc. and Roy K. Flood (Respondents). An Answer was timely served by Respondents. DEC Staff is represented by Galen D. Wilcox, Esq., assistant regional attorney and the Respondents are represented by Genevieve LoPresti, Esq.

DEC Staff filed a copy of the Notice of Hearing and Complaint on the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge ("ALJ") Molly T. McBride.

Respondents served a Notice of Motion dated May 10, 2003 requesting an Order : (1) dismissing the Complaint; (2) suppressing all of the evidence obtained in violation of the Respondents' Fourth Amendment rights; (3) suppressing the use as evidence at trial any record or potential testimony reciting or describing any statements of the defendant (sic) or any evidence derived therefrom; and (4) directing that a hearing be held prior to the trial for purposes of making the findings of fact necessary to determine the instant motion. The Respondents submitted, in support of the motion, the affirmation of Genevieve LoPresti, Esq., affidavit of Roy K. Flood, the supplemental affirmation of Genevieve LoPresti, Esq. and a Memorandum of Law. DEC Staff has opposed the motion and submitted the following in opposition to the motion: the affirmation of Galen D. Wilcox, Esq, affidavits of Anthony Lomanno and Vincent A. Palmer, both Pesticide Control Specialist 3 with the Department, supplemental affirmation of Galen Wilcox, Esq. and a Memorandum of Law.

Background

Respondents own a marina located in Freeport, Nassau County, NY. The Respondents submitted to the Department a Commercial Applicator and Technician Pesticide Use Annual Report for the year 2000. The report indicated that one of the Respondents' employees applied anti-foulant paints to customers' boats at a time when the Respondents' business registration and the applicator's certification had lapsed. Pesticide Control Specialist 3 Lomanno conducted a pesticide inspection of the business on October 3 & 4, 2001. At the initial inspection on October 3rd Lomanno requested to inspect the pesticide application records of the business and also asked for the pesticide business registration. Respondent Flood asked for time to get the records together and it was agreed that Mr. Lomanno would return the next day. Mr. Lomanno returned on October 4, 2001 to continue the inspection at which time Mr. Flood answered questions, advised Mr. Lomanno that the requested records were not available and, led Mr. Lomanno to the paint storage locker on the premises and opened it.

DEC Staff alleges the following: that Respondents violated ECL Article 33 and 6 NYCRR Parts 325 and 326 in that anti-fouling paints classified as pesticides were applied to customers boats at the marina by a person who did not possess the required pesticide applicator certification and when the businesses' registration had lapsed; that certain pesticides were on the premises that were not registered with the Department; and that pesticide application reports that are to be maintained by an applicator were not available when requested by DEC Staff at the inspection.

Respondents' Position

Respondents have moved to suppress the evidence obtained during the October 3 & 4 inspections and also move to dismiss the Complaint. Respondents allege that their constitutional rights under the Fourth Amendment were violated as the search was conducted without a warrant and without the consent of the Respondents.

Staff's Position

DEC Staff opposes the motion and claims that the inspection was conducted in a fair manner and that the Respondent Flood voluntarily complied with all requests made. DEC Staff also argues that this administrative proceeding does not have jurisdiction over constitutional issues.

Discussion

The Respondents maintain that the search conducted during the October, 2001 inspection was illegal and all evidence obtained must be suppressed and can not be used at trial against the Respondents. Respondents argue that the DEC Staff should have had a warrant to conduct the search and without that warrant, the search was illegal. Respondents also allege that without the evidence gathered at the inspections the violations can not be supported and the complaint should be dismissed. Respondent Flood claims that he did not consent to the search. He claims he was pressured by DEC Staff and that he was provided no alternative to the entry. He also claims "I was not even permitted to speak with counsel."

Pesticide Specialist Lomanno has a significantly different version of the events of October 3 & 4, 2001. Mr. Lomanno maintains that the inspections were cordial and that the information gathered was voluntarily given. Lomanno states that he was voluntarily shown the Respondents' paint locker. Respondent Flood claims that he was forced to take Mr. Lomanno to the area and that in fact, it was an area where his employees personal belongings were stored. Mr. Lomanno states that he observed no personal belongings when he viewed the locker. He only saw paint cans.

Jurisdiction to Decide Constitutional Issues

DEC Staff argues that the administrative proceeding is not the proper forum to hear and decide constitutional issues. This issue has already been decided in Finn's Liquor Shop v. State Liquor Authority, 24 NY 2d 647. The Court of Appeals held that administrative hearing officers are not permitted to rule on constitutional issues. However, I do have the authority to fully explore the circumstances of the search to preserve the constitutional question for review in an Article 78 proceeding.

Search Warrant Necessity

The first issue to be addressed is whether a search warrant was required before DEC Staff could enter the premises and conduct the inspection. The ECL and its implementing regulations do provide the Department with the authority to conduct inspections of property in certain circumstances. ECL §3-0301.2(g), §71-2903, 71-0525.1(b) and 6 NYCRR 325.2 and 325.25 provide the authority to inspect premises where there is actual or suspected sources of pollution to ascertain if there is compliance or noncompliance with New York laws and regulations.

The Fourth Amendment of the Constitution allows for a warrantless search for "pervasively regulated activities" United States v. Biswell, 406 U.S. 311 (1972) and "closely regulated industry." Colonnade v. Catering Corp v. United States, 397 U.S. 72 (1970). This action involves alleged violations of the statutes and regulations concerning pesticide use in the State. Pesticide use is without question a pervasively regulated activity and a closely regulated industry in New York State. This has been recognized by the United States Court of Appeals, Second Circuit, in NYS Pesticide Coalition v. Jorling, 874 F. 2d 115 wherein the Court noted that "America has recognized the imminent threat to the environment presented by continued pollution of our natural resources. Effective regulation of hazardous chemicals, including pesticides, has emerged as basic to our national environmental policy." (NYS Pesticide Coalition at 116)

Indeed some businesses, liquor, bars, hazardous chemicals, explosives and firearms have had a long history of governmental regulation and oversight. Understandably any entrepreneur embarking upon such a business accepts the burdens with the benefits and voluntarily subjects himself to plenary and intrusive governmental regulations. He has no reasonable expectation of privacy (Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305). This does not mean that the Fourth Amendment's benefits are denied him. It is still a bar to a trespassing police officer seeking evidence of criminality without an appropriate search warrant (See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943). When an entrepreneur embarks upon a closely regulated business, he tacitly consents to entry by the authorities upon his premises for the purposes of inspection and enforcement of valid regulatory schemes (Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596).

People v. Brigante, 501 NYS 2d 583, 586 (1986)

The Respondents' business puts them in the category of "pervasively regulated activity" and "closely regulated industry".

Voluntariness

There is a question of whether the actions of the Respondent Flood on October 4, when he answered the questions of the inspector and showed him the paint locker, were voluntary. If in fact his actions were voluntary, the requirements of the Fourth Amendment have been met. Examining the totality of the circumstances surrounding the search, it appears that the search was voluntary. Despite the protestations afterward by the Respondent Flood, he had two opportunities to turn away the inspector and he did not. He had time in between to consult with his attorney before the inspector came back on October 4. It was Mr. Flood who asked to delay the inspection by one day and his request was honored.

Respondents have cited cases in support of their argument that this inspection was not voluntary. However, those cases have such significantly different facts that they can not be applied here. By way of example, the Respondents cite cases involving private residences. Private residences are examined in a different light and a different standard is applied to such areas. Another case cited by Respondents concerned a search where the inspector, without permission, searched the coat pockets of a coat hanging in a back room while conducting an inspection of a liquor store. These facts are so dissimilar from the facts here that they are not applicable.

This is an issue that does not need to be decided. "In the context of a regulatory inspection system of business premises that is carefully limited in time, place and scope, the legality of the search depends not on consent but on the authority of the valid statute. (Biswell, at 1596) Here, there was authority to conduct the search, as noted above.

Conclusion

The motion can not be granted or denied as I do not have jurisdiction over the constitutional issue raised. Respondents have moved for an order suppressing evidence and dismissing the complaint. I can not rule on the request to dismiss without first ruling on the constitutional issue and since I do not have the authority to do that, the motion is not properly brought before me. Respondents have proposed that a separate hearing be held to determine the facts regarding the search. I do not find that a hearing is necessary as the facts have been fully developed by the affidavits and affirmations furnished by the parties and also can be explored further at the hearing on the violations that is scheduled to be held herein.

The matter shall proceed to hearing.

_____________/s/_______________
Molly T. McBride
Administrative Law Judge

Albany, New York
August 22, 2003

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