All For A Dollar, Inc. - Order, January 5, 1998
Order, January 5, 1998
In the Matter of
Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law ("ECL")
and Parts 325 and 326 of Title 6 of the Official Compilation of Codes, Rules and Regulations of
the State of New York
- by -
ALL FOR A DOLLAR, INC.
and ROGER SLATE, PRESIDENT
Case No. D3-0001-9708
- Pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Staff of the New York State Department of Environmental Conservation duly served a Notice of Hearing, Pre-Hearing Conference and Calendar Call, as well as a Complaint upon Respondents All For A Dollar, Inc. and Roger Slate, President (collectively, the "Respondents" herein) by certified mail, return receipt requested.
- The complaint asserted two causes of action for sale of unregistered pesticides. The first cause of action was that on or about February 28, 1991 in the City of Kingston, County of Ulster, State of New York, All For A Dollar, Inc. distributed, sold or offered for sale pesticides known as "Hartz Flea Tag for Large Dogs" (EPA Registration No. 2596-48-ZA) without a valid product registration issued by the Department in violation of ECL Sections 33-0701 and 33-1301(1)(a).
The second cause of action was that on or about February 28, 1991 in the City of Kingston, County of Ulster, State of New York, All For A Dollar, Inc. distributed, sold or offered for sale pesticides known as "D-Con Exact Roach & Ant Killer" (EPA Registration No. 3282-71) without a valid product registration issued by the Department in violation of ECL Sections 33-0701 and 33-1301(1)(a).
- The notice stated that a pre-hearing conference and calendar call was scheduled to take place on Tuesday, October 21, 1997, at 1:30 P.M. at the NYSDEC Region 3 Office located on 21 South Putt Corners Road, New Paltz, New York. The notice included a statement that pursuant to 6 NYCRR 622.15, a failure to timely answer or failure to attend a hearing or failure to attend a pre-hearing conference would result in a default under 6 NYCRR 622.15 and a waiver of Respondents' right to a hearing.
- The affidavit of Verna Luck states that she served Respondents by placing a true and correct copy of the notice and complaint in a secure postpaid wrapper addressed to Respondents, and that the notice and complaint were mailed to Respondents by certified mail return receipt requested. The associated return receipt indicates that the notice and complaint were received by Respondents on September 8, 1997.
- Staff documents that the time for service of the answer expired with no reply from Respondents and that Respondents failed to appear at the scheduled calendar call/pre-hearing conference.
- I adopt the findings of the Administrative Law Judge's report which is attached hereto.
- Failure to answer a complaint or to appear at a pre-hearing conference are both grounds for a default judgment pursuant to 6 NYCRR 622.15.
NOW, THEREFORE, have considered this matter, it is ORDERED that:
- Pursuant to 6 NYCRR 622.15, Respondents are found to be in default.
- Within thirty (30) days from service of this Order upon Respondents, they shall:
- Permanently cease and desist from the sale, offer for sale, or distribution of pesticides in New York State unless each pesticide product has a valid product registration issued by the Department;
- In accordance with ECL 71-2907, jointly and severally pay an administrative penalty in the sum of FOUR THOUSAND DOLLARS ($4,000), $2,000 for each of the two causes of action; and,
- Cease and desist from all violations of the Environmental Conservation Law and the codes, rules and regulations promulgated thereunder.
- All communications between Respondents and Staff concerning this Order shall be made to Victor Gallo, Assistant Counsel, NYS Department of Environmental Conservation, 50 Wolf Road, Room 627, Albany, New York 12233-5500.
- The provisions, terms and conditions of this Order shall bind Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondents.
of Environmental Conservation
By: John P. Cahill, Commissioner
Dated: Albany, New York
January 5, 1998
TO: Roger Slate
All For A Dollar, Inc.
3664 Main Street
Springfield, MA 01107
Victor Gallo, Esq.
50 Wolf Road, Room 627
Albany, NY 12233-5500
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
Alleged Violations of Articles 33 and 71 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
ALL FOR A DOLLAR, INC.
and ROGER SLATE, PRESIDENT
DEFAULT SUMMARY REPORT
Case No. D3-0001-9708
ProceedingsStaff of the Department of Environmental Conservation ("DEC") issued a combined Notice of Hearing, Pre-Hearing Conference and Calendar Call, as well as a Complaint, to the Respondents in this matter. The notice announced that a pre-hearing conference and calendar call involving an appearance before an Administrative Law Judge ("ALJ") would be held at 1:30 p.m. on October 21, 1997, at the Department's Region 3 office in New Paltz.
On October 21, 1997, the Department Staff counsel, Victor J. Gallo, moved orally for a default judgment based on the Respondents' failure to answer the complaint or appear at the scheduled pre-hearing conference and calendar call. A record was created which includes the notice and complaint (Exhibit No. 1) as well as Staff's affidavit of certified mail service, signed by Verna Luck of DEC's Office of General Counsel (Exhibit No. 2). Attached to the affidavit is the domestic return receipt (or "green card") indicating delivery of the notice and complaint on September 8, 1997, to an agent of the Respondents. The record was held open for receipt of the hearing transcript and Staff's proposed order. The transcript arrived on November 13, 1997, and Staff's proposed order was received on December 8, 1997.
Findings of Fact
- The notice of hearing and complaint in this matter were served by certified mail in an envelope addressed to Roger Slate, President, All For A Dollar, Inc., 3664 Main Street, Springfield, MA, 01107. An agent for the Respondents, whose signature cannot be deciphered from the "green card", accepted delivery on September 8, 1997.
- The notice confirmed the Respondents' duty [under 6 NYCRR 622.4(a)] to serve an answer on DEC within 20 days of receipt of the complaint. However, as of October 21, 1997, no answer had been received by DEC.
- The notice also announced a pre-hearing conference to be held at 3 p.m. on October 21, 1997. Neither the Respondents nor anyone on their behalf appeared at the conference.
DiscussionAccording to the Department's hearing regulations, a respondent's failure to file a timely answer or, even if a timely answer is filed, failure to appear at a pre-hearing conference announced in the notice of hearing constitutes a default and a waiver of respondent's right to a hearing. [See, 6 NYCRR 622.15(a).] In either circumstance, Department Staff may move for a default judgment, such motion to contain:
(1) proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding;
(2) proof of the respondent's failure to appear or failure to file a timely answer; and
(3) a proposed order. [See, 6 NYCRR 622.15(b).]
Department Staff's affidavit of mail service, coupled with the "green card" indicating delivery to an agent of the Respondents, adequately demonstrates service of the notice and complaint effective September 8, 1997. As confirmed in the hearing notice, the Respondents were to have served their answer, within 20 days following receipt of the complaint, to the Office of Hearings and to Mr. Gallo. No answer was received by this office or by Mr. Gallo, and neither the Respondents nor anyone on their behalf appeared at the scheduled pre-hearing conference, over which I presided. I and the members of my office have had no contact with the Respondents or anyone claiming to represent them. There was no request to extend the time to answer and no request to reschedule the pre-hearing conference. By failing to file a timely answer and by failing to appear at the announced pre-hearing conference, the Respondents defaulted and waived their right to a hearing.
The regulations provide that where Department Staff have met the requirements for a default, the ALJ will submit a summary report limited to a description of the circumstances of the default, and Staff's proposed order to the Commissioner. The order attached to this report is an edited version of the one submitted by Mr. Gallo. I have made some formatting changes; also, I have modified the relief clause to note how Staff intends that its proposed $4,000 penalty be allocated between the two causes of action. This allocation was not part of Staff's proposed order; however, Staff's intent is established in the hearing transcript. According to Mr. Gallo, the $4,000 penalty reflects the minimum enforcement response of $1,000 per product plus an additional $1,000 per product to ensure adequate deterrence against the Respondents.
ConclusionThe requirements of 6 NYCRR 622.15(b) for a motion for a default judgment have been adequately met. The Respondents have defaulted and waived their right to a hearing in this matter.
RecommendationThe attached order confirming the default should be signed and served upon the Respondents.
Administrative Law Judge