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Decaprio/Nationwise Exterminating - Decision and Order, January 24, 1996

Decision and Order, February 28, 1997

WHEREAS:

1. Staff of the Region 3 Office of the New York State Department of Environmental Conservation duly served a Notice of Hearing and Complaint upon the above Respondents, with the exception of Termites and Ants Company, thereby initiating an administrative enforcement hearing. The Complaint was amended on June 21, 1994 and the hearing proceeded regarding the Amended Complaint.
2. Staff appeared and was represented at the hearing by Assistant Regional Attorneys Carol Backman Krebs, Esq. and Jonah Treibwasser, Esq., Region 3 Office, New Paltz, New York. The Respondents, other than Termites and Ants Company and All Conservation, Inc., appeared and were represented by Randall G. Lawrence, Esq., 73 Old Deer Park Road, Katonah, New York 10536 and Renee G. Carter, Esq., 388 Main Street, P.O. Box 426, Poughquag, New York 12570. Termites and Ants Company and All Conservation, Inc. were not represented at the hearing.
3. Upon review of the record and the hearing report of Administrative Law Judge ("ALJ") Susan J. DuBois, I hereby adopt its Findings, Conclusions and Recommendations as my own.
4. The regulation of pesticides under Article 33 of the Environmental Conservation Law has been determined by the Legislature to be in the public interest. Improper use of pesticides may injure health, property and wildlife. This system relies, in part, on the accuracy and truthfulness of self-reporting by the regulated entities. It also endeavors to ensure that the persons and business engaging in commercial application of pesticides are qualified to do so and can be held accountable for their actions. The actions of certain of the Respondents in this matter undercut the effectiveness of this system.
5. A prior Order of the Commissioner issued on February 4, 1988 in the matter of Lillian Costanzo, Nationwise Exterminating and Deodorizing, Inc. ("Nationwise") and Frederick DeCaprio ("Mr. DeCaprio") declined to revoke Nationwise's business registration and Mr. DeCaprio's applicator certification based on violations which they had committed as of that time. The 1988 Order did, however, place these Respondents on notice that revocation is an appropriate remedy (even with less severe violations) when violations occur repeatedly. The additional allegations which were proved in the present hearing justify denial and revocation of authorizations.
6. The Department was acting within its authority in issuing temporary certification cards to pesticide applicators.
7. This Order and the hearing report which it adopts are to be taken into account in reviewing any future applications for pesticide activities regulated by the Department which may be made by the Respondents or by business entities in which they are involved.

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

1. The Respondents are found to be in violation of Environmental Conservation Law ("ECL") Article 33 and Title 6 of the Official Compilation of Codes Rules and Regulations ("6 NYCRR") Parts 325 and 326 as more fully stated in the Conclusions of the hearing report.
2. Based on the full record in this matter, Respondents Ferdinand DeCaprio, Claire DeCaprio and Nationwise Exterminating and Deodorizing, Inc. are found to have engaged in fraudulent business practices in the application of pesticides.
3. Respondents Nationwise Exterminating and Deodorizing, Inc. ("Nationwise") and A-All Pest Control, Inc. ("A-All Pest Control") are jointly and severally assessed a civil penalty of $43,900 (FORTY THREE THOUSAND NINE HUNDRED DOLLARS). Respondent Charles Schneider is assessed a civil penalty of $4,000 (FOUR THOUSAND DOLLARS). Respondent Andre Taylor is assessed a civil penalty of $8,000 (EIGHT THOUSAND DOLLARS). Each of these penalties shall be due and payable within 30 (thirty) days of service of a conformed copy of this Order upon the affected Respondent or Respondents.
4. Nationwise's application for renewal of its pesticide business registration is denied.
5. A-All Pest Control's existing business registration is revoked.
6. Ferdinand DeCaprio's pesticide applicator certification is revoked.
7. Andre Taylor's pesticide applicator certification is suspended for a period of six months from the date of service of a conformed copy of this Order upon Mr. Taylor.
8. The allegations which the hearing report recommends be dismissed are hereby dismissed.
9. The Department Staff's appeal of ALJ William J. Dickerson's March 24, 1994 ruling is denied without prejudice to further enforcement actions regarding the causes of action which the Department Staff had sought to add by its proposed amendment of the Complaint.
10. All communications between Respondents and Department Staff concerning this Order shall be made to the Department's Region 3 Director, New York State Department of Environmental Conservation, 21 South Putt Corners Road, New Paltz, New York 12561-1696.
11. The provisions, terms and conditions of the Order shall bind the Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondents.

Dated: Albany, New York
January 24, 1996

To:

Randall Lawrence, Esq.
Lawrence and Addonizio, P.C.
73 Old Deer Park Road
Katonah, New York 10536

Renee G. Carter, Esq.
388 Main Street
P.O. Box 426
Poughquag, New York 12570

Carol Backman Krebs, Esq.
NYSDEC Region 3
21 South Putt Corners Road
New Paltz, New York 12561-1696

Ferdinand DeCaprio, Jr.
2 Strawberry Hill Court
Montvale, NJ 07645

Fred DeCaprio, Jr.
2 Strawberry Hill Court
Montvale, NJ 07645

Claire DeCaprio
2 Strawberry Hill Court
Montvale, NJ 07645

Lillian Costanzo
President
Nationwise Exterminating & Deodorizing, Inc.
200 Ashford Avenue
Dobbs Ferry, NY 10522

Charles Schneider
c/o A-All Pest Control, Inc.
5 Ogden Place
Dobbs Ferry, NY 10522

Andre Taylor
c/o A-All Pest Control, Inc.
5 Ogden Place
Dobbs Ferry, NY 10522

A-All Pest Control, Inc.
5 Ogden Place
Dobbs Ferry, NY 10522

Nationwise Exterminating & Deodorizing, Inc.
200 Ashford Avenue
Dobbs Ferry, NY 10522

TABLE OF CONTENTS

Summary

Proceedings

Charges

Relief sought

Answer

Pending appeal of ruling

Applicable regulations

Overview of provisions alleged to have been violated

Findings and Conclusions

General

Count 1 - 1986 Order on Consent

Count 2 - 1988 Order

Counts 3 and 6 - Lack of Certification

Count 4 - Use of unregistered pesticides

Count 5 - Recordkeeping allegations

Count 7 - Allegations involving A-All Pest Control

Count 8 - Alleged falsification of registration

Count 11 - Alleged falsification of certified

applicator documents

Count 13 - Felony conviction of Mr. DeCaprio

Count 14 - Federal debarment

(Counts 9, 10 and 12 were omitted or withdrawn)

Conclusions regarding penalty and other relief

Discussion of requested relief

Recommendations

Summary

On July 30, 1992, the Staff of the Department of Environmental Conservation issued a Complaint against a group of Respondents regarding alleged violations of the statute and regulations governing pesticides. After a number of preliminary motions, the Complaint was amended and a hearing was held on the allegations. The Respondents in this matter are Ferdinand DeCaprio, Jr., Claire DeCaprio, Lillian Costanzo, Charles Schneider, Andre Taylor, Nationwise Exterminating and Deodorizing, Inc. ("Nationwise"), and all of the above Respondents doing business as (1) Termites and Ants Company, (2) A-All Pest Control, Inc. ("A-All Pest Control") and (3) All Conservation, Inc..

The Amended Complaint sought the denial of Nationwise's application for renewal of its pesticide business registration, revocation of A-All Pest Control's pesticide business registration, revocation of the pesticide applicator certifications of Mr. DeCaprio, Mr. Schneider and Mr. Taylor, barring all of the Respondents from any involvement in the manufacture, sale, distribution or application of pesticides and requiring the Respondents to divulge any such involvement currently and in the future. The Amended Complaint also sought a civil penalty of $750,000 to be assessed against the Respondents jointly and severally, but suspended conditioned upon the Respondents' compliance with the Order to be issued in this matter.

The Amended Complaint alleged, as the basis for this requested relief, that the Respondents had violated provisions of Environmental Conservation Law ("ECL") Article 33 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Parts 325 and 326. The violations which were alleged in the Amended Complaint involved application of pesticides (including applications for control of termites and applications in the food processing category) by an uncertified applicator, engaging in application of pesticides while A-All Pest Control did not have a current pesticide business registration, use of unregistered pesticides, and violations of recordkeeping and reporting requirements. The Amended Complaint also alleged that Mr. DeCaprio and Nationwise had engaged in fraudulent business practices in the application of pesticides. The Amended Complaint cited an Order on Consent and an Order of the Commissioner resulting from prior enforcement actions against Mr. DeCaprio and Nationwise, plus Mr. DeCaprio's plea of guilty to federal tax evasion and the two-year debarment of Mr. DeCaprio and Nationwise from bidding on federal contracts, in support of the requested relief. The charges are further described in the following hearing report.

The Respondents, in their Answer, denied most of the allegations in the Amended Complaint. The Respondents asserted numerous affirmative defenses, including that the Department's regulations concerning pesticide applicator certifications are in conflict with the ECL and are invalid, that the applicators who were allegedly uncertified were actually certified at the time in question and were under the direct supervision of certified applicators, that all of the pesticides which Nationwise and A-All Pest Control had used were registered, that A-All Pest Control's former business registration had not expired as alleged, that the Department had told Nationwise to change the date on its business registration card (one of the allegations of fraudulent business practices), and that for several reasons the other allegations regarding fraudulent business practices were without merit. The affirmative defenses are further described in the following hearing report.

The regulations applied in this case are those which were in effect at the time of the alleged violations, prior to an amendment in 1993.

The hearing report concludes that the following violations occurred. Nationwise and Mr. Schneider engaged in the application of pesticides for control of termites while Mr. Schneider was not certificated as a pesticide applicator. Nationwise used six pesticide products that were not registered with the Department during the year when Nationwise used them. Nationwise omitted information from a number of records of pesticide applications and submitted one year's annual report late. Nationwise also failed to include in its annual report the use of two pesticide products which it had used in 1990. A-All Pest Control engaged in the application of pesticides while it was not registered as a pesticide business. Its former business registration had ceased to be in effect since its application for renewal was not complete. Mr. Taylor and A-All Pest Control engaged in the application of pesticides while Mr. Taylor was not a certified applicator, and also engaged in pesticide applications in the food processing category while Mr. Taylor was not certified in this category. A-All Pest Control omitted items from a number of records of pesticide applications. Its records for pesticide applications at LaGuardia Airport had numerous illegible entries and in some cases the majority of the information was illegible.

The hearing report also concludes that Nationwise engaged in fraudulent business practices in the application of pesticides on two occasions: Nationwise submitted to the City of Peekskill a business registration with an altered date, in connection with a bid for a pesticide application, and Nationwise provided Woodhull Medical and Mental Health facility with four fraudulent applicator certification cards during the course of performing pest control for this facility. Mr. and Ms. DeCaprio were shown to have participated in the first of these incidents.

The hearing report recommends denial of Nationwise's application for renewal of its pesticide business registration, revocation of A-All Pest Control's pesticide business registration, revocation of Mr. DeCaprio's pesticide applicator certification and suspension of Mr. Taylor's pesticide applicator certification. The report also recommends imposition of civil penalties of $43,900 against Nationwise and A-All Pest Control jointly and severally, $4,000 against Mr. Schneider and $8,000 against Mr. Taylor. It recommends that Mr. Schneider's applicator certification not be revoked or suspended, and that several charges be dismissed including certain of the charges that Nationwise used unregistered pesticides and all of the charges that A-All Pest Control did so, allegations of termite control applications by Mr. Schneider and Nationwise on two additional dates, and certain charges involving reports and recordkeeping.

The hearing report refers to the Commissioner the question of the duration of pesticide applicator certifications. The Respondents contested the validity of the Department's former regulations regarding the time periods for recertification and for renewal of commercial applicator certificates, and the validity of the Department's issuance of temporary identification cards.

There would also need to be a decision on the Department Staff's appeal of a ruling by Administrative Law Judge William J. Dickerson, who presided over the early portion of the hearing. This ruling denied the Department Staff's request to make certain amendments to the Complaint. Former Commissioner Langdon Marsh declined to decide the appeal on an interlocutory basis and accordingly the appeal is now before the Commissioner.

Proceedings

Pursuant to Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622, an administrative enforcement hearing was held to consider the Department's proposed denial of an application for a pesticide business registration and revocation of existing pesticide business registrations and applicator certificates of the following Respondents: Ferdinand DeCaprio, Jr. (also known as Fred DeCaprio, Jr.), Claire DeCaprio (also known by her maiden name Claire Costanzo), Lillian Costanzo (also known as Lillian Glazer Costanzo and Lilly Costanzo), Charles Schneider, Andre Taylor, Nationwise Exterminating and Deodorizing, Inc. ("Nationwise"), and all of the above Respondents doing business as (1) Termites and Ants Company, (2) A-All Pest Control, Inc. ("A-All") and (3) All Conservation, Inc.

This hearing was initiated by Notices of Hearing and Complaint issued by the Department Staff on July 30 and August 3, 1992 to the Respondents. The hearing was originally scheduled for September 22, 1992 but was adjourned several times at the request of the parties to allow time for disclosure and rulings on motions for protective orders. On May 4, 1993, the Department Staff submitted a "Motion for Partial Summary Order" against Respondents Ferdinand DeCaprio (Mr. DeCaprio) and Nationwise Exterminating and Deodorizing, Inc. ("Nationwise").

The hearing began on May 11, 1993 before Administrative Law Judge ("ALJ") William J. Dickerson, at the Department's Region 3 Office in New Paltz. On that date, ALJ Dickerson heard arguments by the parties regarding the motion, clarification of the complaint, and preliminary matters regarding the individual counts in the complaint. He stated that the Motion for Partial Summary Order would be treated as a motion in the context of an ongoing hearing pursuant to 6 NYCRR 622.9. On June 18, 1993, the Respondents submitted a Notice of Motion to Dismiss the Complaint.

On December 16, 1993, ALJ Dickerson denied the motion for a partial summary order and also denied the motion to dismiss the complaint. The ruling also identified several matters which would not need to be adjudicated but which instead would be matters for argument in briefs, based on certain documents which would be put in the record and on the entire record of the proceeding. The ruling identified counts which would not be adjudicated or which would be adjudicated only if the specific Respondents involved were identified and if proper service was made upon Termites and Ants Company.

On January 26, 1994, the Department Staff moved to amend the Complaint. The Respondents opposed this amendment. On March 24, 1994, ALJ Dickerson granted the motion in part and denied it in part. He allowed the amendments which pertained to correcting typographical errors and to identifying the Respondents which the December 16, 1993 ruling had directed be identified. He did not allow amendments which sought to add new Respondents or to add new causes of action about events which occurred after service of the original complaint at locations not identified in the original complaint and which are alleged to be violations of provisions not cited in the original complaint. The March 24, 1994 ruling also directed the Department Staff to prepare and serve an amended complaint in conformance with the ruling.

The Department Staff then sought to appeal the March 24, 1994 ruling, by an April 8, 1994 letter to Langdon Marsh, Acting Commissioner. The Respondents opposed the appeal. On May 27, 1994, Robert Feller, Assistant Commissioner for Hearings, notified the parties that the Commissioner had decided not to entertain the appeal on an interlocutory basis. The appeal is discussed at page 6 of this report.

The Department Staff then served the amended complaint and the Respondents submitted an answer.

On August 15, 1994, Chief Administrative Law Judge Daniel E. Louis notified the parties that the hearing had been transferred from ALJ Dickerson to ALJ Susan J. DuBois because of caseload conflicts. On August 16, 1994, the Respondents objected to this transfer on the basis that the hearing had been scheduled for August 16, 1994 taking into account ALJ Dickerson's caseload, that statements by Department employee Marilyn DuBois would be at issue in the hearing, and that both ALJ DuBois and Jonah Triebwasser, Esq., co-counsel for the Department Staff, were union stewards in the New York State Public Employees Federation. On August 17, 1994, ALJ DuBois denied the request for recusal and notified the Respondents that this ruling could be appealed to the Commissioner under former 6 NYCRR 622.12(a)(4). The Respondents did appeal. The appeal was denied by then- Commissioner Marsh in a ruling dated August 26, 1994.

The hearing began on August 18, 1994 before ALJ DuBois at the Department's Region 3 Office and continued at that location or at the New Paltz Village Hall on the following dates: August 19 and 29, September 1, 2, 8, 9, 20, 26, 27, and October 4, 1994.

On October 4, 1994, after the conclusion of the Department Staff's direct case, the hearing was adjourned at the Respondents' request to allow time for the Respondents to submit a motion to dismiss. Under the procedures of 6 NYCRR Part 622, under which the ALJ prepares a hearing report and recommendations but the Commissioner issues the order, this motion was treated as a motion that the ALJ determine that the Respondents need not present a case and that the ALJ recommend that the Complaint be dismissed.

The Respondents made this motion on December 12, 1994. In a ruling dated February 22, 1995, ALJ DuBois denied the motion and ruled that the hearing would continue. The hearing then continued on May 3, 4, and 5, 1995 at the Region 3 Office. The hearing record closed on August 18, 1995 upon receipt of the parties' reply briefs.

The Department Staff was represented at the hearing by Carol Backman Krebs, Esq. and Jonah Triebwasser, Esq., both Assistant Regional Attorneys in the Department's Region 3 Office. The Respondents, other than Termites and Ants Company and All Conservation, Inc., were represented by Randall G. Lawrence, Esq., Katonah, New York and by Renee G. Carter, Esq., Poughquag, New York. No one appeared on behalf of Termites and Ants Company or All Conservation, Inc.

The Department Staff called the following witnesses: Claire DeCaprio, Charles Schneider, and Fred DeCaprio, all of whom are Respondents in this hearing; Kenneth Cole, Investigator, Region 3; Craig Thomas, Pesticide Control Specialist 1, Region 3; Gary Schmidt, Pesticide Control Specialist 2, Region 3; Denise Colabatistto, a former employee of Nationwise and A-All; Dr. Richard Hager, Pesticide Control Specialist, DEC Albany office; Anthony Gudlewski, Environmental Chemist 2, DEC Albany office; and Francis Hegener, Associate Analytical Chemist, DEC Albany office.

The Respondents called the following witnesses: Dr. Hager, Mr. Thomas, Mr. Schmidt, and Ms. DeCaprio; Connie LaFave, Clerk 2, DEC Albany office; Jeanine Broughel, an employee of the Pesticide Product Registration Section, DEC Albany office; Marilyn DuBois, former Chief of the Bureau of Pesticide Control, DEC Albany office; and Andre Taylor, one of the Respondents.

Charges

The amended complaint sought denial and revocation of the Respondents' business registrations and applicator certificates based on numbered counts which allege the following: The numbering of the counts follows that in the amended complaint (Ex. 6 of the hearing record). The numbers which appeared in the original complaint (Ex. 1) are also noted.

(1) that a June 24, 1986 Order on Consent had found Nationwise to have violated ECL Section 33-1301(1)(a) through the use, storage or offer for sale of unregistered pesticides;

(2) that a February 4, 1988 Commissioner's Order had found Nationwise and Mr. DeCaprio to have offered for sale an unregistered pesticide product, stored chlordane dust, and misbranded a pesticide by storage in an unlabeled container;

(3) that Mr. Schneider served as the certified applicator for Nationwise and engaged in commercial application of pesticides during a time when his certification was expired;

(4) that Nationwise had used unregistered pesticides;

(5) that Nationwise failed to keep adequate records for pesticide use and method of application, submitted annual reports late, and failed to report certain pesticides it had used;

(6) that Nationwise engaged in termite control, with Mr. Schneider serving as the applicator while he was not certified for termite applications;

(7) that A-All Pest Control and Mr. Taylor had violated a number of provisions of ECL Article 33 and 6 NYCRR Part 325 by conducting pesticide applications while not registered or certified, respectively, failing to keep adequate records, using unregistered products, submitting annual reports late and other alleged violations;

(8) that Mr. DeCaprio and Nationwise had submitted a falsified business registration certificate to the City of Peekskill;

(counts 9 and 10 were omitted from the amended complaint);

(11) that certified applicator documents which Nationwise submitted to the New York City Health and Hospitals Corporation had false applicator numbers;

(12) (this count was withdrawn at the hearing);

(13) that Mr. DeCaprio had pled guilty to a felony of federal tax evasion on December 20, 1989 and had also allocuted to additional corporate tax liability owned by Nationwise and All Conservation, Inc. for three years each; and

(14) that Nationwise and Mr. DeCaprio were debarred from the award, renewal or extension of all Federal contracts by the Office of Acquisition Policy of the General Services Administration for a three year period ending November 19, 1993.

Several of the counts were renumbered when the complaint was amended:

Original Complaint	Amended Complaint
8	7
9	8
10	11
15	13
16	14

Relief Sought

The Department Staff requested that an Order be issued which would find Respondents in violation of ECL Sections 33-0905(1), 33-0905(3)(c), 33-1301(1)(a), 33-1301(1)(e), 33-1301(8) and 33-1301(8)(a) and 6 NYCRR Sections 325.17(a), 325.18(a), 325.18(b), 325.25(a), 325.25(b) and 326.2(d)(2); would find that the Respondents engaged in fraudulent business practices; would deny the pending application for renewal of Nationwise's pesticide business registration; would revoke A-All Pest Control's pesticide business registration; would revoke the applicator certifications of Mr. DeCaprio, Mr. Schneider and Mr. Taylor; would require the Respondents to divulge any current or future involvement with pesticide businesses in the State of New York and bar all of the Respondents from any such involvement; and would assess a suspended penalty of $750,000 against Respondents jointly and severally, which penalty would be suspended conditioned upon compliance with the Order.

Answer

The Respondents stated that the amended complaint had added new material, in violation of ALJ Dickerson's March 24, 1994 ruling. This objection was withdrawn at the hearing and replaced by a denial of the paragraphs in question. The Respondents denied most of the allegations in the amended complaint.

The Respondents stated as affirmative defenses:

(a) that the Department's regulation which requires that only certified applicators engage in commercial termite control is in conflict with the ECL and is invalid, and that Mr. Schneider was under the direct supervision of a certified applicator;

(b) that version of Part 325 which was in effect at the time of the alleged violations is in conflict with the ECL, with regard to the duration and renewal of applicator certifications and identification cards, and thus its provisions on this subject are invalid;

(c) that Mr. Schneider and Mr. Taylor were certified during the time when the Department alleges they were not;

(d) that Nationwise and A-All Pest Control had made clerical errors on their annual reports but that all the pesticides they used were registered;

(e) that record-keeping violations allegedly found in a 1985 inspection of Nationwise's records were time barred and the Department had waived its right to prosecute them;

(f) that the alleged record-keeping violations by Nationwise and A-All Pest Control did not warrant revocation of business registrations;

(g) that under State Administrative Procedures Act Section 401(2), A-All Pest Control's former business registration had not expired as alleged;

(h) that Mr. Taylor was under the direct supervision of certified pesticide applicators;

(i) that the Department had told Nationwise to change the expiration date on its business registration card;

(j) that the New York City Health and Hospitals Corporation determined that Nationwise had not submitted the falsified certified applicator numbers;

(k) that Mr. DeCaprio's conviction for tax evasion was for 1983, which was before Nationwise and A-All Pest Control were incorporated and thus the conviction does not prove that the companies engaged in fraudulent business practices in the application of pesticides;

(l) that tax evasion would not constitute a fraudulent business practice in the application of pesticides;

(m) that despite pleading guilty under pressure from an attorney, Mr. DeCaprio is innocent;

and (n) that debarment from bidding for Federal work, on grounds which the Respondents allege were unrelated to the application of pesticides, does not establish that Mr. DeCaprio or Nationwise engaged in fraudulent business practices in the application of pesticides.

Pending appeal of ruling

As discussed in the Proceedings section of this report, on April 8, 1994 the Department Staff appealed ALJ Dickerson's March 24, 1994 ruling regarding amendment of the Complaint. This appeal is pending since it was not decided as an interlocutory appeal.

The ruling granted the Department Staff's motion to amend the Complaint to correct typographical errors and to conform the Complaint to rulings issued on May 11 and December 16, 1993. The ruling denied the Department Staff's motion to amend the Complaint to add new Respondents and new causes of action, which causes of action occurred after service of the original Complaint at geographic locations not identified in the original Complaint and in alleged violation of provisions not cited in the original Complaint. The ruling directed that the Department Staff prepare and serve an Amended Complaint in conformance with the ruling.

In their Answer, the Respondents stated that 20 paragraphs of the Amended Complaint which was served after the March 24, 1994 ruling did not comply with the ruling in that they added new material. At the start of the hearing, the Respondents withdrew their objections to these paragraphs and instead entered a denial of these paragraphs. The hearing proceeded on the subject of the allegations in the Amended Complaint and did not address the additional causes of action which the Department Staff had sought to add in the earlier proposed amendment of the Complaint.

The appeal which is pending requests to add alleged violations which occurred or were discovered after the original Complaint was filed and which could not have been included in the original Complaint. The appeal also stated that no new Respondents were being added and that the reference to one person as a "respondent" was an error and would be deleted.

To grant the appeal at the present stage of the hearing (after the record on the hearing has closed) would involve re-opening the hearing to hear evidence on additional causes of action. It would appear to be more efficient to issue a Order on the alleged violations which have already been addressed in the hearing record and to have any additional causes of action heard in a separate hearing. Accordingly, I recommend that the Department Staff's appeal of ALJ Dickerson's ruling be denied without prejudice to further enforcement action regarding the causes of action which the Department Staff had sought to add.

Applicable regulations

This proceeding commenced prior to January 9, 1994. Consequently, the hearing procedures in effect were those of the former version of 6 NYCRR Part 622. The transition provision for this regulation is at 6 NYCRR 622.1(c) of the current Part 622.

6 NYCRR Parts 325 and 326 were amended after the dates of the alleged violations. The amendments affected some, but not all, of the sections which the respondents allegedly violated. The hearing record has been evaluated under the regulatory requirements in effect at the time when the alleged violations occurred.

References to sections of 6 NYCRR Parts 325 and 326 are to the regulatory sections as they existed at the time of the alleged violations, prior to the amendment of these regulations in 1993.

Statutory and regulatory provisions concerning revocation of pesticide applicator certificates and business registrations

ECL Section 33-0909.1 authorizes the Commissioner to deny applications or revoke pesticide applicator certification or pesticide business registration, after due notice and opportunity for hearing, upon a determination that any of several specified grounds have occurred, including:

"(b) the applicant or certified applicator has been convicted of a felony;...

(d) the applicant, certified applicator, or registered business or agency has engaged in fraudulent business practices in the application of pesticides;

(e) the applicant, certified applicator, or registered business or agency has failed to comply with any provision of this article or rules and regulations of the department made pursuant thereto[.]"

6 NYCRR Subdivision 325.18(d), applicable to certifications, states similar grounds for denial or revocation of commercial pesticide applicator certification, and also specifies that certification may be denied, revoked or suspended for the reason that "the applicant or certified applicator has falsified any records or reports or has failed to maintain such records or reports required by this Part or any applicable statue" (325.18(d)(7)).

6 NYCRR Subdivision 325.23(e), applicable to business registrations, states similar grounds for denying or revoking a pesticide business registration, including a provision regarding records and reports, and also specifies that such registrations may be denied, revoked or suspended if "the applicant or registered business has failed to employ individuals who have demonstrated that they have sufficient knowledge and experience concerning the proper use and application of pesticides gained either through certification or through company training and on-the-job training after employment" (325.23(e)(6)).

Overview of the provisions alleged to have been violated

The provisions which the Respondents allegedly violated are found in ECL Article 33 and 6 NYCRR Parts 325 and 326. The declaration of policy and purposes of Article 33 (ECL Section 33-0301) states that although pesticides have valuable uses, if improperly used they may injure health, property and wildlife. Section 33-0301 further states the legislative determination that, "the regulation of the registration, commercial use, purchase and custom application of pesticides is needed in the public interest and that in the exercise of the police power all persons be required to register or obtain permits before engaging in such activities."

The law and regulations establish a system for certifying pesticide applicators and for registering pesticide businesses and agencies (ECL Article 33, Title 9). Applicants for certification are required, among other things, to demonstrate their knowledge and experience concerning the proper use of pesticides (ECL 33-0905; 6 NYCRR 325). Applicants for business registration are required to satisfy similar standards (ECL 33-0907; 6 NYCRR 325.23).

Pesticide businesses are also required to keep records of a number of specified aspects of the pesticide applications they perform and to file annual reports with the Department identifying the quantities of each pesticide they have used during the year (6 NYCRR 325.25). The accountability in the use of pesticides which is provided by this system relies to a significant extent on accurate self-reporting by the regulated entities.

ECL Article 33 also requires that pesticides which are used, distributed, sold or offered for sale within the State of New York be registered every two years with the Department (ECL 33-0701). The New York State registration process is described in ECL Article 33, Title 7. The Practice Commentary at the beginning of Article 33 in McKinney's Consolidated Laws of New York State notes the relationship between this authority and that of the Environmental Protection Agency under the Federal Insecticide, Fungicide and Rodenticide Act, and the joint federal-state role in pesticide regulation. Under ECL 33-0709, the Commissioner is to register a pesticide if the composition of the pesticide is such as to warrant the proposed claims for it, and if the pesticide and its labeling and other material required to be submitted comply with the requirements of ECL Article 33.

Findings of Fact

1. Nationwise Exterminating and Deodorizing, Inc. ("Nationwise") is a New York corporation located at 200 Ashford Avenue, Dobbs Ferry, New York.

2. All Conservation, Inc. was a company that was formerly doing business as Nationwise Exterminating and Deodorizing. All Conservation, Inc. was dissolved in 1984.

3. A-All Pest Control, Inc. is a New York corporation located at 5 Ogden Place, Dobbs Ferry, New York. This office is the same office space as that in which Nationwise is located. The building has two addresses and two entrances.

4. Termites and Ants Company was an entity with which Claire DeCaprio and Charles Schneider were involved in some capacity not identified in the record. The only count in the complaint which involved allegations against Termites and Ants Company or actions by that company was withdrawn by the Department Staff at the hearing on September 8, 1994 (Count 12, formerly Count 11).

5. Claire DeCaprio ("Ms. DeCaprio") is president and shareholder of A-All Pest Control, Inc. and has served as president and/or secretary of A-All Pest Control, Inc. at various times since late 1987. Ms. DeCaprio was a manager of Nationwise and president of A-All Pest Control in August 1992, when the original complaint in this matter was served. She was employed by Nationwise for over 15 years, ending in 1992. Her duties as an employee of Nationwise and later of A-All Pest Control, Inc. have included office manager, secretary and customer relations. Ms. DeCaprio is also president of 200 Ashford Avenue Realty Corp., the company which owns the building in which both Nationwise and A-All Pest Control have their offices.

6. Ferdinand DeCaprio, Jr., also known as Fred DeCaprio ("Mr. DeCaprio"), was employed by Nationwise at least from 1985 to 1990 under the title of Director. Mr. DeCaprio is the husband of Ms. DeCaprio. Mr. DeCaprio was listed as an officer of Nationwise on the company's 1984 and 1985 federal tax returns and as a member of Nationwise's board of directors as of November, 1985 on a Nationwise document identifying its board of directors. In 1988, Mr. DeCaprio was one of three persons authorized to conduct banking transactions for Nationwise; the other two were Claire DeCaprio and Lilly Costanzo. Mr. DeCaprio used the title "Coordinator" in work which he did for Nationwise in 1991. In 1992, Mr. DeCaprio worked for Nationwise on a daily basis and had his own office within Nationwise's office. Mr. DeCaprio's involvement with Nationwise and All Conservation, Inc. is discussed further below.

7. Lillian Glazer Costanzo ("Ms. Costanzo") is shareholder of Nationwise and president of Nationwise. She is Ms. DeCaprio's mother. Ms. DeCaprio has had power of attorney for Ms. Costanzo since approximately 1990. During a prior enforcement hearing which took place in 1987 In the Matter of Lillian Costanzo, Frederick DeCaprio and Nationwise Exterminating and Deodorizing, Inc., Order of the Commissioner dated February 4, 1988), the Department Staff withdrew the charges against Ms. Costanzo in that hearing based upon information that she was ill and unable to appear or otherwise authorize her representation at that hearing.

8. Charles Schneider ("Mr. Schneider") worked for Nationwise from approximately 1979 until December 31, 1992. He worked for A-All Pest Control from January 1, 1993 until at least the time of the hearing. Mr. Schneider began working as a supervisor for Nationwise after having worked for the company for a few years and was working as a supervisor for Nationwise in 1990 and 1991.

9. Andre Taylor is an employee of A-All Pest Control. He had also been employed by Nationwise during a time period that may have overlapped his employment with A-All Pest Control.

10. On December 31, 1992, Nationwise's employees were terminated and on January 1, 1993 they were hired by A-All Pest Control. This transfer was made because of publicity concerning allegations which the Department had made against Nationwise. The employees' duties and work location did not change as a result of this transfer.

Count 1 - 1986 Order on Consent

11. On June 24, 1986, Mr. DeCaprio and Nationwise entered into an Order on Consent with the Department. This Order on Consent was signed by Mr. DeCaprio on behalf of Nationwise on May 22, 1986, using the title "Director of Operations." The Order on Consent found that Nationwise had violated ECL Section 33-1301(1)(a) by storing or offering for sale containers of two unregistered pesticide products. The Order on Consent did not include any denial or disclaimer of the alleged violations. The Order on Consent imposed a civil penalty of $500 (five hundred dollars), which was suspended upon condition that the Respondent remain in compliance with all terms of the Order on Consent. The Order on Consent also required the Respondent to dispose of the unregistered pesticide products in a manner approved of by the Department and consistent with specified regulations.

12. The Order on Consent ordered that: "All violations alleged by the Department herein to have been committed by Respondent shall constitute continuing violations. However, the Department shall not institute an action or proceeding for penalties or other relief pursuant to law on account of any of such violations for as long as Respondent adheres to and fully complies with the terms, provisions and conditions of this Order." In the present proceeding, the Respondents were not charged with violating this Order on Consent.

Conclusions - Count 1

1. The 1986 Order on Consent, in which Nationwise was a Respondent, would not by itself be a reason for denying Nationwise's application for renewal of its business registration because of the limitation on the Order on Consent which is quoted in finding 12. The 1986 Order on Consent is, however, relevant to a factor which would be taken into account under the Record of Compliance Enforcement Guidance Memorandum in reviewing whether the applicant showed a pattern of non-compliance with the Environmental Conservation Law and requirements under the authority of the ECL. It is also relevant to a factor in the Civil Penalty Policy (history of non-compliance) which would be taken into account in evaluating penalties to be imposed for subsequent violations. It is relevant to a factor in the Pesticide Enforcement Guidance Memorandum with regard to whether the Respondents were aware of the legal prohibition which was in question in that enforcement matter and in later allegations.

Count 2 - 1988 Order

13. On February 4, 1988, former Commissioner Thomas C. Jorling issued an Order following a hearing in the matter of allegations against Ms. Costanzo, Mr. DeCaprio and Nationwise. The Order found that Mr. DeCaprio and Nationwise had offered for sale an unregistered pesticide, had stored chlordane dust and had misbranded a pesticide by storage in an unlabelled container, all in violation of the Environmental Conservation Law. The Department Staff withdrew the charges against Ms. Costanzo, based upon information which indicated that she was ill and unable to appear or otherwise authorize her representation at the hearing. The Commissioner's Order dismissed the charges against Ms. Costanzo and imposed a civil penalty of $11,200 jointly and severally against Mr. DeCaprio and Nationwise.

14. Mr. DeCaprio was found to be personally liable along with Nationwise, by virtue of his participation in the violations as well as his general responsibility for conduct of the Nationwise business. The hearing report which accompanied the 1988 Order also stated that, "The preponderance of the evidence established that Frederick DeCaprio was the person most responsible for the operation of the Nationwise business. Although Mr. DeCaprio attempted to avoid admitting to this in his testimony, his admitted title as 'director of operations' and such additional admissions as that he was answerable only to the incapacitated Lillian Costanzo, and that he was the 'head person...running the business' leave no doubt as to his role." The Frederick DeCaprio who was a Respondent in that matter is the same person as Mr. DeCaprio who is a Respondent in the present matter (see Finding 2 of the 1988 hearing report).

15. In the above proceeding, the Department Staff sought a six month revocation of Nationwise's pesticide business registration and of Mr. DeCaprio's pesticide applicator certification, in addition to a monetary penalty. The hearing report recommended that these authorizations not be revoked, for reasons discussed in the hearing report. The Order concurred with this recommendation but also placed both Mr. DeCaprio and Nationwise on notice that revocation is an appropriate remedy even with less severe violations when such violations occur repeatedly.

Conclusions - Count 2

2. The violations found in the 1988 Order, in which Nationwise and Mr. DeCaprio were the Respondents after the allegations against Ms. Costanzo were withdrawn, would not by itself be a reason for denying Nationwise's application for renewal of its business registration nor for revoking Mr. DeCaprio's pesticide applicator certification since these actions were proposed as relief in that matter but the Commissioner decided not to impose this relief. The Commissioner did, however, place Mr. DeCaprio and Nationwise on notice that revocation is an appropriate remedy even with less severe violations when such violations occur repeatedly. The violations found in the 1988 Order and the warning which was provided to the Respondents in that Order are relevant to the present proceeding for reasons similar to the reasons stated in the preceding Conclusion.

Counts 3 and 6 - Lack of certification

16. Mr. Schneider was a certified pesticide applicator in the late 1980's. His certification was entered into the Department's records on June 21, 1984 and expired on June 21, 1990.

17. In 1988, 1989 and 1990, the Department was issuing temporary identification cards for certified pesticide applicators, which cards were effective initially for three months and later for six months. On March 30, 1990, the Department issued to Mr. Schneider a six month temporary card, which was marked "temporary expires 9/30/90."

18. At the time of the Department's December 20, 1990 inspection of Nationwise, Mr. Schneider was aware that he did not possess a valid applicator identification card. He stated that he and other Nationwise employees had not been receiving their renewals from the Department. At a later inspection on January 8, 1991, he stated that he believed he had sufficient recertification credits and that he would check his records regarding this.

19. Mr. Schneider became certified again on February 11, 1991. He has renewed his certification in a timely manner since then. The identification card which he received upon renewing his certification in February 1991 had an expiration date of June 21, 1993, three years after the expiration of his earlier certification. Mr. Schneider did not possess a valid certified pesticide applicator identification card between September 30, 1990 and February 11, 1991. During this time period, he was not a certified pesticide applicator.

20. Mr. Schneider applied pesticides for the control of termites at a location in Hawthorne, New York on October 4, 1990 and at a location in Ardsley, New York on November 2, 1990, while he was not a certified applicator. The preponderance of the evidence indicates that he was not supervised by a certified applicator in engaging in these pesticide applications. Mr. Schneider performed these pesticide applications as an employee of Nationwise.

21. On January 8, 1991, Mr. Schneider identified himself as having been the certified applicator for the pesticide applications described in Finding 20. The applications for registration as a pesticide business which Nationwise submitted in early 1989 and in early 1990 both list Mr. Schneider as the certified applicator for the company. Mr. Schneider's title with Nationwise in late 1990 and early 1991 was supervisor.

Discussion (Counts 3 and 6)

Supervision

The Respondents stated, as an affirmative defense, that Mr. Schneider was under the direct supervision of a certified applicator during the time he was not certified. There is, however, no credible evidence of such supervision which would counter his admission regarding his role in these applications. Neither the answer nor the evidence identify who would have been supervising Mr. Schneider during these pesticide applications. The testimony presented by the Respondents concerning supervision of applicators was vague; it did not mention Mr. Schneider specifically nor did it identify any person who would have supervised him nor that person's certification status. The Respondents' evidence on this point was less consistent and of lower credibility than was the Department Staff's evidence.

Duration of applicator certificates

As an additional affirmative defense, the Respondents stated that during the time of the alleged violations the Department's regulations and its practices in issuing temporary cards were inconsistent with the Environmental Conservation Law. The Respondents cited ECL Section 33-0905(3)(d) which states that: "Pesticide applicator certification shall be valid for six years after which every applicator shall recertify according to the requirements then in effect. Certification identification cards shall be valid for three years." This provision was added by an amendment in 1983, which also repealed a requirement that persons engaged in the commercial application of pesticides were to register annually with the Department (L. 1983, Ch. 612).

The regulation which was in effect at the time of the alleged violations regarding applicator certifications (Counts 3, 6 and a portion of count 7) provided for certificates to be valid for one year unless suspended, revoked or modified (6 NYCRR 325.18(c)). A commercial applicator who possessed a valid certificate could renew it for a period of one year, upon application to the Department. Certified commercial applicators were required to be recertified every five years, based upon attendance at refresher training courses and a history of satisfactory performance, as further specified in the regulation (6 NYCRR 325.22(c) and (d)). According to the historical notes which accompany these sections of the regulations, the sections became effective December 27, 1976 and were not amended until March 2, 1993. Under the current regulation, certificates for commercial applicators are valid for three years and may be renewed for an additional three years, and the applicators must be recertified every six years (325.18(c), 325.22(c) and (d)).

At the time of the allegations involving applicator certifications, the Department was issuing temporary identification cards as describing in Finding 17 (valid for three months or six months).

The contention that the above regulatory provisions, to the extent that they are inconsistent with the statutory provision, represent an improper exercise of legislative power by the Department is not being ruled upon in the present hearing report. This procedure is based on an Interim Decision of the Commissioner in a prior hearing (In the Matter of James R. Lee, Allegro Oil and Gas, Inc., et al., Interim Decision dated December 12, 1989). In that hearing, parties asserted that there was a conflict between a provision of the Environmental Conservation Law and its implementing regulation. The Interim Decision stated that, "The Department's decision to promulgate such a regulation ... represents a final determination of the agency that there is adequate statutory authority for same. As a rule, the hearing forum is not appropriate to review a final agency determination and there is nothing that has been brought to my attention that would justify making an exception in this case."

The question in the present case differs from that in Lee et al. since the Department did not adopt a regulation which allegedly conflicted with the existing statute but instead, after the 1983 amendment of the ECL, either continued to apply the existing regulation or followed a policy of using temporary cards, both of which are alleged to be in conflict with the amended statute. In both the Lee et al. hearing and the present one, however, the respondents challenged the Department's administration of a regulatory program as being in conflict with the enabling statute as those existed at the time of the alleged violations.

If the Commissioner were to review either the Department's use of temporary certification cards or the Department's determination not to amend Part 325 until 1993, this would be a legal issue rather than a factual issue. The present hearing report includes a discussion of how the facts of the case relate both to the duration of the temporary cards and to the three and six year time periods specified in ECL Section 33-0905(3), both with regard to Counts 3 and 6 and with regard to Count 7 below.

Duration of applicator certificates, as applied to Mr. Schneider's certification

Mr. Schneider had a temporary, six month identification card which expired on September 30, 1990. If this card and its expiration date were valid, he was not certified between September 30, 1990 and February 11, 1991. Consequently, he was not a certified pesticide applicator on October 4 or November 2, 1990 when he engaged in the commercial application of pesticides.

Even if the time periods which the Department was formerly using for certification (i.e., the three month and six month temporary cards, or the one year cards) were determined to be invalid, Mr. Schneider's certification had expired in June of 1990 under the terms of ECL Section 33-0905(3) itself. His certification began on June 21, 1984 and would have expired six years later under ECL Section 33-0905(3). Accordingly, Mr. Schneider was without the required certification on October 4 and November 2, 1990 under any of the possible interpretations of how long the pesticide applicator certifications would be valid.

Third affirmative defense

As an affirmative defense, the Respondents asserted several things regarding the renewal of Mr. Schneider's certification. The assertions about Mr. Schneider's efforts to obtain a renewal application were not supported by evidence and although they could have been relevant to the penalty they would not be relevant to whether or not he was certified. The evidence also demonstrates that the Department did require Mr. Schneider to recertify in 1990. The fact that the card which the Department issued to Mr. Schneider on February 11, 1991 had an expiration date of June 21, 1993 (on the same three or six year cycle as the June 1984 and June 1990 dates) did not make this card retroactively valid to June of 1990, particularly in view of the contrary evidence that he was not certified and did not possess a valid card from September 30, 1990 to February 11, 1991.

Conclusions - Counts 3 and 6

3. Mr. Schneider violated ECL 33-0905(1), ECL 33-1301(8) and 6 NYCRR 325.17(a) by engaging in the commercial application of pesticides on two occasions while he was not certified and was not working under the direct supervision of a certified applicator. Mr. Schneider was also in violation of 6 NYCRR 326.2(d)(2) since these applications were for the control of termites.

4. The allegation that Mr. Schneider was in violation of ECL 33-0905(3)(c) is duplicative of the violation of ECL 33-0905(1). The former section provides for certification in restricted categories, while ECL 33-0905 requires that persons engaging in commercial application of pesticides shall be certified, with certain exceptions. If he was not certified at all, the lack of a certification in a particular category is not a separate violation.

5. Nationwise violated ECL 33-0905(1), ECL 33-1301(8) and 6 NYCRR 325.17(a) and 326.2(d)(2) since Mr. Schneider carried out these two termite-control pesticide applications as an employee of Nationwise and within the scope of his employment (ECL 71-2913).

Count 4 - Use of unregistered pesticides

22. Registered pesticide businesses are required to file annual reports with the Department no later than January 15 of each year, listing the quantity of each pesticide product used during the prior calendar year (6 NYCRR 325.25(b). The cited regulation further provides that: "EPA registration numbers shall be used as a reference to the product; product names shall not be used." The form which is used for these annual reports (Registered pesticide business annual report - pesticides used) has spaces for both "Product name" and "EPA Registration Number."

23. A pesticide product is a formulation of ingredients together with its label that specifies directions for use and other information. Each product which is registered with the U.S. Environmental Protection Agency ("EPA") is given a registration number. A given formulation of ingredients can have more than one label and more than one number. Pesticides are also registered with the Department for use in New York State. The extent of Department's review of applications for registration depends on the type of product: whether the product contains a chemical which is a new active ingredient not contained in any pesticide product previously registered in New York; whether it is a major new use for a registered chemical; or whether it is a new formulation of chemicals that have already been reviewed for the proposed use. Pesticide products are first registered with the EPA and then with the Department. Some products which are registered with the EPA are not subsequently registered with the Department.

24. Nationwise submitted an annual report for 1988 which listed, among other pesticides, the following: Baygon Powder, EPA No. 3125; MaxForce, EPA No. 241-267; and Dursban, EPA No. 45385-22.

25. Nationwise submitted an annual report for 1989 which listed, among other pesticides, the following: Baygon Powder, EPA No. 3125; Pyrethrin Flushing Insect., EPA No. 478123; Pyrid, EPA No. 1021-1523-1927; MaxForce, EPA No. 241-267; and Dursban, EPA No. 45385-22.

26. Nationwise submitted an annual report for 1990 which listed, among other pesticides, the following: Bell Bait Blocks, EPA No. 12455-5; Prentox DZN 2.0, EPA No. 100-649-655; Diazinon 2D Dust, EPA No. 655-485; and Torpedo, EPA No. 10182-95.

27. Nationwise submitted an annual report for 1991 which listed, among other pesticides, the following: Clean-Out VII, EPA No. 54282-8; Boric, EPA No. 6720-139; Diazinon 2D, EPA No. 655-485; Baygon 70%, EPA NO. 3125-148; and Conquer, EPA No. 1021-1565-5776.

28. The annual report form contains directions which make it clear that the form is to identify the pesticide products which were actually used by the business submitting the form, plus the amount of each pesticide used. Nationwise's submission of these forms is an admission that it used certain quantities of certain pesticides. Some of the pesticides which Nationwise reported having used were identified on its reports by pesticide names that did not correspond to the EPA registration numbers that accompanied them on Nationwise's reports, making it difficult to identify what Nationwise actually used. In such cases, the pesticide which was actually used is probably either the pesticide corresponding to the EPA identification number or the pesticide corresponding to the name. As discussed in the subsequent Findings, for some of the pesticides cited in the complaint there is a registered pesticide that has a similar name and/or number to that which was reported (see, for example, Finding 46). For at least five of these pesticides, however, the reported pesticide product (or the pesticide product most nearly corresponding to the incorrect name and number combinations provided by Nationwise) was not registered during the year in question (Finding 47).

29. In 1988 and 1989, Nationwise used a pesticide which it reported as Baygon Powder, EPA No. 3125. In 1991, Nationwise used what it reported as Baygon 70%, EPA No. 3125-148. No pesticide products designated by those combinations of names and numbers were registered with the Department.

30. The number 3125 is not a complete EPA registration number but rather is just a number indicating a particular pesticide manufacturer. The number 3125-148 is an EPA registration number but it is the number under which "Baytex Liquid Concentrate Insecticide" was registered. Another pesticide product was registered as "Baygon 70% Wettable Powder Insecticide" but it had the registration number 3125-146.

31. Baygon 70% Wettable Powder Insecticide, EPA No. 3125-146 and Baytex Liquid Concentrate Insecticide, EPA No. 3125-148 were both registered with the Department during the time period from late 1987 to the fall of 1992.

32. There are several pesticide products that contain the names "Baygon" or "Baytex" and an EPA registration number that includes the digits 3125, for example: Baytex 4 Emulsifiable Insecticide, EPA No. 3125-73; Baygon 2% Bait Insecticide, EPA No. 3125-121; Baygon 1.5 Emulsifiable Insecticide, EPA No. 3125-214; and the two products discussed in the preceding Findings. Without the pesticide product being designated accurately on the annual report, there is no assurance that a properly registered pesticide product was used. It is Respondents' obligation to ensure accurate reporting (6 NYCRR 325.25).

33. In 1988 and 1989, Nationwise used a pesticide which it reported as MaxForce, EPA No. 241-267. A pesticide product designated by a similar name and this EPA number was registered with the Department at one time but the registration expired on December 31, 1986 and was not renewed. The product was Maxforce Insecticide Roach Feeding Station, EPA No. 241-267. Neither MaxForce, EPA No. 241-267 nor Maxforce Insecticide Roach Feeding Station, EPA No. 241-267 were registered with the Department in 1988 or 1989. Thus, even if one relies on the EPA number reported by Nationwise and allows for some latitude in identifying the name, the outcome is still that the pesticide product which Nationwise used was not registered.

34. In 1988 and 1989, Nationwise used a pesticide which it reported as Dursban, EPA No. 45385-22. No pesticide product designated by this name and number combination was registered with the Department in 1988 or 1989. However, a pesticide product or products with similar names or numbers were registered with the Department during these years.

35. In 1989, Nationwise used a pesticide which it reported as Pyrethrin Flushing Insect., EPA No. 478123. No pesticide product with this name and number combination was ever registered with the Department. A pesticide product with a similar number (Pyrethrin Flushing Insecticide, EPA No. 4758-123) was registered at one time, with a registration that expired on September 30, 1988. From September 30, 1988 to September 30, 1990, this pesticide product was suspended and was not registered with the Department.

36. In 1989, Nationwise used a pesticide which it reported as Pyrid, EPA No. 1021-1523-1927. Nationwise also used Pyrid on November 16, 1990. Pyrid, EPA No. 1021-1523-1927 had been registered but the registration expired on September 30, 1988. On August 26, 1988, Terminix International submitted a registration form for Pyrid Residual Insecticide, EPA No. 1021-1523-57076. The letter which accompanied the registration form stated, "This is for registration due to a change in our company number. Our previous company number was 1927 and was changed to 57076." On September 7, 1988, the Department issued a certificate of pesticide registration which expired on March 31, 1990 and which included Pyrid Residual Insecticide Concentrate, EPA No. 1021-1523-57076. This registration was renewed on February 21, 1990 with an expiration date of March 31, 1992.

37. When the registration of a pesticide product has expired, the product may not be used in New York State unless the product is currently registered in New York State by another company. This can occur if one company lets the registration of a product lapse and another company buys the product and registers it. The hearing record is unclear regarding what would happen to the EPA number of the product in such circumstances. In the case of Pyrid, the registration expired but the product was registered again with a new number, by the same company, due to a change in the number which was used for referring to that company in the pesticide registration system.

38. In 1990, Nationwise used a pesticide which it reported as Bell Bait Blocks, EPA No. 12455-5. No pesticide product designated by this name and number combination was registered with the Department in 1990. From February 13, 1990 to June 30, 1991, there were two pesticide products registered with the Department whose identification included the number 12455-5: Rodent Cake, EPA No. 12455-5 and Di-Blox, EPA No. 12455-5. There is no indication in the record that a pesticide product with the name Bell Bait Blocks was registered with the Department under any number.

39. In 1990, Nationwise used a pesticide which it reported as Prentox DZN 2.0, EPA No. 100-649-655. No pesticide product designated by this name and number combination was registered with the Department in 1990. From May 20, 1986 to December 31, 1987, a pesticide with this number and the name Prentox D.Z.N. 2.0 MEC Insecticide was registered with the Department, but this registration expired at the end of 1987 and was not renewed. Prentox D.Z.N. 2.0 MEC Insecticide, EPA No. 100-649-655 was not registered during the time period from December 31, 1987 to December 31, 1989. It does not appear on the certificates of pesticide registration which were issued to the company that had registered it earlier, which certifications were issued for dates in 1990 and 1991.

40. In 1990, Nationwise used a pesticide which it reported as Diazinon 2D Dust, EPA No. 655-485. No pesticide product designated by this name and number combination was registered with the Department in 1990. The pesticide Prentox Diazinon 2D Insecticide Dust, EPA No. 655-465 was registered with the Department during 1990. An additional pesticide, Prentox Blue Powder, EPA No. 655-485, had been registered during 1987 but was no longer registered as of 1990.

41. In 1990, Nationwise used a pesticide which it reported as Torpedo, EPA No. 10182-95. As of August 16, 1991, this pesticide had never been registered with the Department. It was registered with the Department on November 12, 1991. Torpedo is a restricted use pesticide. Restricted use pesticides are those pesticides which pose a large enough environmental hazard (including by persistence or accumulation) that restrictions are placed on the sale, purchase, use or possession of them (see ECL 33-0101.42 and 6 NYCRR 326.1(q), 326.2).

42. In 1991, Nationwise used a pesticide which it reported as Clean-Out VII, EPA No. 54282-8. No pesticide product designated by this name and number combination was registered with the Department in 1991. There were two pesticide products with either a similar name or this number which had been registered with the Department at some time prior to 1991: Clean-Out VII, EPA No. 11561-5-54282 and V Eight, EPA No. 54282-8.

43. In March, 1988, the company which had once sold V Eight, EPA No. 54282-8 requested that the New York State registration of this pesticide be dropped. It was not registered with the Department after March 31, 1988. Clean-Out VII, EPA No. 11561-5-54282 was registered with the Department from December 23, 1988 to March 31, 1990. This registration expired on March, 31, 1990 and as of May, 1991 it had not been registered again and was listed as suspended (no longer registered). There is no evidence in the record which indicates that this pesticide was ever registered after March 31, 1990.

44. In 1991, Nationwise used a pesticide which it reported as Boric, EPA No. 6720-139. No pesticide product designated by this name and number combination was registered with the Department in 1991. The pesticide product SMCP Bor/Act Roach Control Agent, EPA No. 6720-139 was, however, registered from April 18, 1990 to March 31, 1992. The certificate of pesticide registration on which it appears lists it as "Discontinued - Registered but no longer in production." This registration status indicates that the pesticide product is still registered although it is no longer being manufactured.

45. In 1991, Nationwise used a pesticide which it reported as Diazinon 2D, EPA No. 655-485. No pesticide product designated by this name and number combination was registered with the Department in 1991 (see Finding 40 regarding pesticide products with similar names or numbers).

46. In 1991, Nationwise used a pesticide which it reported as Conquer, EPA No. 1021-1565-5776. No pesticide product designated by this name and number combination was registered with the Department in 1991. The pesticide product Conquer Residual Insecticide Concentrate, EPA No. 1021-1565-57076 was registered with the Department from November 13, 1991 to March 31, 1992.

47. With regard to five of the pesticide products discussed in the above Findings, there is no interpretation of the reported names and numbers or any similar names and numbers from which one could infer that the pesticide products were in fact registered at the time when Nationwise used them. For these five pesticide products, whether one goes by the name or by the number of the product, or by a similar name or similar number, the evidence demonstrates that the products in question were not registered during the years when Nationwise used them. These pesticide products are the ones which were listed by Nationwise as follows: MaxForce, EPA No. 241-267 (Finding 33); Pyrethrin Flushing Insect., EPA No. 478123 (Finding 35); Prentox DZN 2.0, EPA No. 100-649-655 (Finding 39); Torpedo, EPA No. 10182-95 (Finding 41); and Clean-Out VII, EPA No. 54282-8 (Findings 42 and 43).

48. With regard to an additional pesticide product, which Nationwise reported as Diazinon 2D Dust, EPA No. 655-485 or Diazinon 2D, EPA No. 655-485 (Findings 40 and 45), the evidence when considered in the context of the reporting system indicates that it is likelier than not that the product was unregistered. A product with a similar name but a different number was registered; the registration of a product with a different name but the same number had expired. If one relied on the number as the identification of the pesticide product, this product was not registered in the year when Nationwise used it.

49. With regard to several of the remaining pesticide products, the product which Nationwise actually used was more likely registered than unregistered, although there is no pesticide product with the name and number combination that was reported by Nationwise for each of these products. For example, for Baygon 70%, EPA No. 3125-148 (Findings 29 through 31) one cannot tell which of two products was used unless one relies on the number instead of the name. Both of the products, however, were registered in the year in question. Thus, regardless of which of these two pesticide products Nationwise actually used, the product was registered although Nationwise reported it so inaccurately that one cannot tell which of the two products was used. The pesticide products which Nationwise reported as Bell Bait Blocks, EPA No. 12455-5, Boric, EPA No. 6720-139, and Conquer, EPA No. 1021-1565-5776 were in this category.

Discussion (Count 4)

The Respondents presented an affirmative defense and several arguments regarding the allegations in Count 4. As discussed below, these arguments and the affirmative defense are not persuasive.

Although the Respondents argued that the ECL requires "pesticide" registration but not registration of "pesticide products," the Department has authority to register individual pesticide products under ECL 33-0709 and 33-0713(1), as noted in Chemical Specialties Manufacturers Association v. Jorling (3d Dept., 1994) 197 A.D. 2d 314, 318, 611 N.Y.S. 2d 663, 665.

The Respondents' argument that the mis-matched names and numbers indicate that the pesticide products in question do not exist is without merit. The annual report forms were submitted by Nationwise, which was responsible for their accuracy. It would be irrational to believe that a pesticide business would use a non-existent pesticide product or report that it had done so The annual report form includes spaces for reporting the container size, number of containers used and total amount for each pesticide that was used during the reporting year. It is not reasonable to believe that a business would report its use of, for example, ten one-pound containers of a product that did not exist. It is also not reasonable to believe that a business would report on this form (complete with numbers in the "EPA registration number" column) its use of materials that were not pesticide products.. To treat the mis-matched names and numbers in this manner (as reflecting use of a non-existent material, and therefore requiring the Department to prove that the designations as reported on the forms were actually pesticides) would also reward companies that were careless in their reporting or who intentionally garbled the identification of the pesticides they used.

The approach taken by Nationwise to the allegations in Count 4 underlines the need for accurate reporting in regulatory programs that rely on self-reporting or self-monitoring by the regulated entities. On the one hand, the Respondents suggest that the Department is being overzealous in prosecuting them for what they characterize as clerical errors in Nationwise's reports, but on the other hand the Respondent use the literal contents of the reports to argue that the Department has not proved that Nationwise used unregistered pesticides. Inaccurate identifications of pesticide products by the businesses which use them could make it impossible to track what pesticide products were used and could provide a means for avoiding accountability for their use.

The hearing record demonstrates that these so-called "paper violations" are part of an overall regulatory system and cannot be so simply dismissed. The Respondents engaged in practices that avoided or circumvented the regulatory controls which were adopted to ensure that pesticides are used in a manner which minimizes environmental harm (see ECL 33-0301).

The Respondents took an unreliable approach to various documents, attempting to disclaim records they had submitted or signed. Their disclaimers, however, must be rejected based on the credible evidence in the hearing record. The Respondents suggested that the Department Staff had altered a copy of one of Nationwise's annual reports by whiting out information on it; however, the information had been whited out on the original, before the Department received it. Mr. DeCaprio also claimed that the "Fred DeCaprio" or "Fred DiCaprio" who was the author of letters regarding a bid on behalf of Nationwise to the City of Peekskill in 1991 was actually Frederick DiCaprio, Sr., Mr. DeCaprio's father, although Ms. DeCaprio identified the letters as being from her husband Fred DeCaprio, Jr. (see Finding 77 below). Mr. DeCaprio similarly attempted to disclaim his involvement in the 1986 Order on Consent and the possibly the 1988 enforcement hearing on the basis that the individual charged was actually his father. The 1988 hearing report, however, identifies the Frederick DeCaprio who was a Respondent in that hearing as one of the Respondents in the 1986 Order on Consent and as the husband of Claire DeCaprio.

The Respondents also suggested that the Department should rely on the EPA number with regard to pesticide products reported by the Respondents that had EPA numbers that corresponded to registered pesticide products, but should rely on the product name with regard to pesticide products where the name corresponded to or resembled that of a registered pesticide product. To follow this reasoning renders the reports nearly useless.

Although mistakes and typographical errors can occur when completing the annual report forms, Nationwise's approach to its records appears to have been much more irresponsible than allowing a few such errors. The importance of accurate reporting is highlighted by the number of pesticide products that have similar names but which may have entirely different targets and procedures for use. The Respondents, in questioning a Department employee they had called as a witness, suggested that since things known as "blocks," "bait" and "cake" were similar, it did not matter that Nationwise had reported using "Bell Bait Blocks" when the correct name of the product whose number they reported was either "Rodent Cake" or "Di-Blox." If one reviews the certificate of pesticide registration on which this EPA number and the latter two names appear, one finds that there are 15 pesticide products whose names include "bait," "cake" or "blox." That is why both the name and the number need to be reported accurately.

The regulation regarding annual reports of pesticide use (6 NYCRR 325.25) states that "EPA registration numbers shall be used as a reference to the product; product names shall not be used." While it might be advisable to clarify this provision in view of the fact that the reporting forms also ask for the pesticide names, this provision can reasonably be interpreted as requiring that the Department rely on the numbers, rather than the names, if there is any question of what pesticide product was used (see, for example, Findings 48 and 49).

The Respondents stated, as an affirmative defense, that their pesticide supplier maintained that all pesticides it sells are registered, and that "all pesticides used by Respondent Nationwise are and have been registered."

As to the registration status itself, the Department Staff demonstrated that at least five of the pesticide products were not registered at the time when Nationwise used them, under any interpretation of reported names and numbers, and that additional pesticide products were not registered under the name and number designations which Nationwise reported. Nationwise did not present evidence which contradicted this.

As to Nationwise's allegation that it had obtained information which indicated that the products were registered, the Respondents presented testimony by Ms. DeCaprio which discussed in very general terms her contacts with the Respondents' pesticide supplier about the registrations. Although she testified that she had not contacted the Department to confirm the registration status since she had no specific phone number to call the Department, she was, however, able to contact the Department regarding Nationwise's business registration. She also testified that an unidentified person had told her to check with the supplier about whether the pesticide products were registered. This person's affiliation, if any, with either the Department or the supplier was not identified. She testified that the supplier consistently told her that the products which Nationwise and A-All were buying were registered in the State of New York.

The Respondents presented as evidence in the hearing a fax cover sheet from someone identified as "Andrea" at York Chemical Co., Inc., which company is a major supplier of pesticides for Nationwise. The cover sheet, dated July 29, 1991, asserted that York would not sell anything that was not registered in NYS, but also asserted that York had current registration papers on Prentis [sic] DZN 2.0 MEC, EPA No. 100-00649-00655. The Department Staff proved that the registration of Prentox D.Z.N. 2.0 MEC Insecticide, EPA No. 100-649-655 had expired prior to 1991.

On June 18, 1993, the Respondents had made a motion to dismiss the complaint. Attached with the motion were affidavits from three of the Respondents. Ms. DeCaprio's affidavit discussed the fax cover sheet from York Chemical Co., Inc. and the registration of four of the allegedly unregistered pesticides cited in the complaint. Her affidavit stated that Pyrethrin Flushing Insecticide had been reported with an incorrect EPA number and that the registration certificate of this pesticide was annexed as an exhibit. The certificate, however, shows Pyrethrin Flushing Insecticide as "Suspended - (No longer registered)." The other three pesticide products discussed in the affidavit were not among those which this report finds were unregistered at the time when Nationwise used them.

Conclusions - Count 4

6. Nationwise violated ECL 33-1301(1)(a) by using the five unregistered pesticides described in Finding No. 47.

7. Nationwise also violated ECL 33-1301(1)(a) by using a pesticide product which Nationwise reported as Diazinon 2D Dust, EPA No. 655-485. This hearing report relies on the EPA number, rather than relying on a name similar to the one reported by Nationwise, in concluding that the pesticide product which Nationwise used was not registered during the year in which it was used.

8. If one relies on the exact pesticide product name and number reported by Nationwise for several other pesticide products, these products were not registered with the Department during certain years in which Nationwise used them (see Finding No. 49). This report concludes, however, that the names and numbers reported by Nationwise were reporting errors and that the various pesticide products which Nationwise probably actually used were registered. The errors were not minor, however, since they obscured the identification of what Nationwise actually used. These would have been reporting violations rather than violations due to use of unregistered pesticides, but the Complaint did not alleged such reporting violations. This hearing report does not recommend finding Nationwise in violation with regard to these pesticide products nor imposing a penalty with regard to them.

Count 5 - Recordkeeping allegations

50. On March 5, 1985, a Department pesticide inspector wrote to Nationwise and advised the company that an inspection conducted by a member of the Department Staff on January 25, 1985 had found Nationwise to be in violation of 6 NYCRR Section 325.25(a) by keeping inadequate records. The March 5, 1985 letter also stated that the Department had decided not to take formal enforcement action with regard to this alleged violation, but that future violations would be prosecuted. The letter does not describe the violation other than by the regulatory citation and the phrase "keeping inadequate records." This alleged violation was not included in the 1986 Order on Consent nor in the 1988 Order.

51. On three occasions (December 20, 1990, January 8, 1991 and July 21, 1992) Pesticide Control Specialist Craig Thomas inspected records at Nationwise's office. These inspections included a review of the records of pesticide applications (see 6 NYCRR 325.25(a)). Among the information required to be recorded for pesticide applications is the use of pesticide (which includes notations such as "spot" "all area/basement" or "service areas"), the method of application and the dosage rate.

52. For a pesticide application on May 31, 1990, Nationwise did not report the use of pesticide nor the method of application. This was for an application of Dursban TC with termites as the target organism. For a pesticide application on July 27, 1990, Nationwise did not report the method of application. For two pesticide applications on August 21, and August 29, 1990, both of which had termites as the target organism, Nationwise did not report the use of pesticide. For a pesticide application on September 6, 1990, Nationwise did not report the use of pesticide and the reported method of application was incorrect. For a pesticide application on October 4, 1990, Nationwise did not report the use of the pesticide and the method of the application was unclear. For pesticide applications on March 14 and March 18, 1991, Nationwise reported a dosage rate that was incorrect for the pesticide to which it related. For these two pesticide applications and a third one on March 6, 1991, Nationwise reported having rodents or mice as a target organism (in addition to roaches) but no records related to the pesticide application for these organisms. For a pesticide application on June 7, 1991 involving three pesticides and two target organisms, Nationwise did not report the use of pesticide for any of the pesticides nor the method of application for one of the pesticides.

53. Nationwise submitted copies of its annual pesticide use reports later than the due date, January 15 of the year after the one covered by each report. For the 1988, 1989 and possibly the 1991 reports, however, these copies of the reports were copies that were submitted with Nationwise's business registration renewal. A pesticide business may submit its annual report twice, once in early January for purposes of the annual report itself (see 6 NYCRR 325.25(b)) and the second time with its application for renewal of its business registration. Nationwise's annual report for 1990 was received by the Department on two separate dates (January 29 and January 31, 1991) but both of these were after January 15, 1991 and there is no indication in the record that a third copy would have been filed in a timely manner. Nationwise submitted its annual report for 1990 later than the required date.

54. On November 27, 1990, Nationwise applied the pesticide "Orb aerosol" at Rockland Psychiatric Center in Orangeburg, New York. Nationwise did not report the use of this pesticide in its annual report of pesticides used for the calendar year 1990.

55. On November 16, 1990, Nationwise applied the pesticide "Pyrid" at a location in the Bronx. Nationwise did not report the use of this pesticide in its annual report of pesticides used for the calendar year 1990.

Discussion (Count 5)

Alleged violation in 1985

The alleged record-keeping violation noted in the March 5, 1985 letter (Amended Complaint, 52 through 55) occurred approximately seven years before the original Notice of Hearing and Complaint in the present hearing. It was also omitted from two enforcement actions which took place between 1985 and the present enforcement action.

The Respondents asserted as part of their fifth affirmative defense that prosecution of an alleged violation from 1985 should be time barred under State Administrative Procedure Act Section 301(1) which requires that parties to an adjudicatory proceeding be afforded an opportunity for hearing within a reasonable time. This provision was interpreted in the matter of Cortlandt Nursing Home v. Axelrod (1985, 66 N.Y. 2d 169, 495 N.Y.S. 2d 927) in which the Court identified factors for evaluating whether the time in question was reasonable. These factors were considered in another pesticide enforcement hearing (In the Matter of Breeze Hill Farm and Thomas O. Conklin, Order dated July 21, 1993) and may be summarized as: (1) the nature of the private interest allegedly compromised by the delay; (2) the actual prejudice to the private party; (3) the causal connection between the conduct of the parties and the delay; and (4) the underlying public policy advanced by government regulation.

The record in the present case is quite limited with regard to the Cortlandt factors. It does not support a conclusion that the 1985 record-keeping allegation should be dismissed on the basis of SAPA 301(1) since this is an affirmative defense and was not proved.

This hearing report does, however, recommend that the alleged violation in 52 through 55 be dismissed, since the Department Staff did not prove this alleged violation. The reason for this conclusion is that the evidence which was presented about this allegation consists of a letter in which a DEC pesticide inspector stated that an inspection found Nationwise to be in violation of 6 NYCRR Section 325.25(a) by "keeping inadequate records." The facts underlying this conclusion are not in the record and there is no evidence on which a finding could be made regarding what the Respondents actually did or failed to do.

Although the Respondents' fifth affirmative defense stated that the inspector's Notice of Inspection reported that there were no suspected violations, this document was not offered as evidence and is not part of the record. Consequently, there is no evidence in support of the fifth affirmative defense.

Omissions from annual reports

The most severe of Nationwise's record-keeping violations identified in the above findings regarding Count 5 is the failure to report the use of two pesticide products (Findings 54 and 55). Omission of a pesticide product from an annual report undercuts the reliability of a regulatory system which relies on reporting by the regulated entities; such an omission also prevents the Department from being notified that a business had used that particular pesticide product at all, apart from the more detailed information about how much of it had been used and in what manner.

Timeliness of annual reports

As noted above, a pesticide business may submit its annual report twice, once in early January for purposes of the annual report itself and the second time with its application for renewal of its business registration. The date stamp on the 1988 and 1989 annual reports is the same date and time as that on the application for renewal of Nationwise's business registration. For the 1990 reporting year, there are two copies of the annual report which are in evidence, one of which is stamped "received" with the same date and time as the application for business registration (January 31, 1991, 3:09 P.M.). The second copy of the 1990 annual report is stamped received by the Department on January 29, 1991. Even if Nationwise submitted its 1990 annual report twice, both submissions were after January 15, 1991. For the 1991 reporting year, the annual report is date stamped received on March 9, 1992 but the registration application has no receipt date indicated. Based on application having been signed on March 4, 1992, it is likely that the annual report was submitted with the application.

The evidence presented by both parties is weak regarding whether or not Nationwise submitted timely annual reports for 1988, 1989 and 1990. The Department Staff submitted hearsay evidence about the four reports being late, which evidence was in the form of an inspector's narrative report in which the inspector stated that a Department clerk has told him that the reports were submitted late. Although the clerk was called as a witness by the Respondents, neither party questioned her about this statement. The Department Staff did not present testimony by the person who is the custodian of the annual reports concerning the non-existence of copies that were received on time. The Respondents elicited testimony that an annual report could be submitted twice. Claire DeCaprio testified that she submitted annual reports both prior to January 15 each year and with the business registration applications in late January or early February. This was apparently not true for 1990, however, when the two copies were received on two dates in late January. There is no indication of annual reports being submitted at three separate occasions.

Since the Department Staff has the burden of proof, this hearing report finds that Nationwise submitted its annual report late in 1990 but not in 1988, 1989 or 1991.

Nationwise's 1988 and 1989 annual reports were also questionable in additional ways which were not alleged as additional violations in the Amended Complaint, so no Findings or Conclusions are made regarding them and they are not included in evaluating the proposed relief, but they are noted here with regard to the reliability and credibility of Nationwise's records. The 1988 and 1989 annual reports were nearly identical, except for minor changes in two entries. They report not only the same set of pesticide products but also the same quantities of each product for both years, which appears unlikely. Both reports are also missing the quantity used for two pesticides (the same pesticide products both years) and have some mis-written or unintelligible units for the container sizes of the products.

Conclusions - Count 5

9. The Department Staff did not demonstrated that Nationwise had violated 6 NYCRR 325.25(a) in 1985 since the record does not contain the underlying facts regarding this alleged violation.

10. Nationwise violated 6 NYCRR 325.25(a) on several occasions in 1990 and 1991 by failing to keep records of certain information concerning pesticide applications as required by that section (Finding No. 52).

11. Nationwise violated 6 NYCRR 325.25(b) by submitting its annual report for 1990 later than January 15, 1991. The evidence does not prove that Nationwise submitted its annual reports for 1988, 1989 or 1991 later than the required date.

12. Nationwise violated 6 NYCRR 325.25(b) by failing to report, in its annual report for 1990, the use of two pesticides which it used in 1990.

Count 7 - Allegations involving A-All Pest Control

Business registration

56. A-All Pest Control was not registered with the Department as a pesticide business during the time period from April 1, 1990 through June 20, 1990.

57. A-All Pest Control had a pesticide business registration which expired on March 31, 1990. On or about February 22, 1990, A-All Pest Control had submitted an application for renewal of this registration. This application was not complete, however, since it lacked the street address and the date of incorporation of A-All Pest Control and since the person who signed it was not an officer of the corporation. The Department did not issue a pesticide business registration for A-All Pest Control in response to this application. Following telephone conversations between employees of A-All Pest Control and of the Department, in which A-All Pest Control was informed that the application was incomplete in some manner, A-All Pest Control submitted its application again on or about June 14, 1990. The Department issued a pesticide business registration for A-All Pest Control on June 20, 1990, which registration had an expiration date of March 31, 1991. A-All Pest Control had no pesticide business registration from April 1, 1990 to June 20, 1990.

58. The application which A-All Pest Control submitted in June of 1990 had the same information as did the February, 1990 application. The information which was missing from both forms would cause an application to be rejected. The record does not contain any explanation for why the June 1990 submission of this application was approved, but the Department did issue the registration on June 20, 1990.

59. During the time between April 1, 1990 and June 20, 1990, A-All Pest Control engaged in the application of pesticides. There were approximately sixty such applications and they took place on at least eight days during this time period. These applications occurred at LaGuardia Airport.

Pesticide applicator certification

60. Andre Taylor was initially certified as a pesticide applicator on March 26, 1987. He remained certified during the next several years. He had a temporary pesticide applicator certification which was issued on October 31, 1990 and which expired on April 21, 1991. This was a certification in the 7-A category (structural and rodent). The certification cards have the expiration date marked on them. Mr. Taylor was not certified as a pesticide applicator between April 21, 1991 and September 27, 1991. On September 27, 1991, his applicator certification was renewed for the 7-A category. Mr. Taylor did not become certified in the 7-F (food processing) category until July 28, 1992.

61. During the time period between April 21, 1991 and September 27, 1991, Mr. Taylor performed approximately 116 pesticide applications. These pesticide applications were done by Mr. Taylor as an employee of A-All Pest Control. During this time period, A-All Pest Control had no other employees who were certified applicators. Mr. Taylor was identified as A-All Pest Control's only certified applicator on the application for pesticide business registration which A-All Pest Control submitted on or about January 17, 1991. Mr. Taylor was not working under the direct supervision of a certified applicator while conducting these applications.

Pesticide applications - "food processing" category

62. On November 14, 1989 and November 29, 1989, Mr. Taylor applied pesticides at restaurants in LaGuardia airport, while working as an employee of A-All Pest Control. These pesticide applications were in the food processing category.

63. At five locations on November 12, 1991 and at one location on November 26, 1991, Mr. Taylor applied pesticides at various McDonald's restaurants in Westchester County and Bronx County, while working as an employee of A-All Pest Control. These pesticide applications were also in the food processing category.

64. Mr. Taylor was not certified in the food processing category at the time of the applications described in Finding 62 nor at time of the applications described in Finding 63. At those times, A-All Pest Control did not have an applicator who was certified in the food processing category. Mr. Taylor was not under the direct supervision of an applicator certified in the food processing category while he was doing these pesticide applications.

Records

65. A-All Pest Control's records for two pesticide applications done on November 14, 1989 and November 29, 1989 lacked information on the total quantity of pesticide used in each application. A-All Pest Control's records for a pesticide application done on April 19, 1991 lacked information on the dosage rate of the pesticide.

66. In addition to the specific omissions in the preceding Finding, A-All Pest Control's records for its pesticide applications at LaGuardia Airport on various dates in the spring of 1990 contained numerous illegible entries. For some of these records, the majority of the information is illegible.

Alleged use of unregistered pesticides

67. A-All Pest Control submitted an annual report for 1988 which listed, among other pesticides, Pyrethrin Flushing Insect., EPA No. 478123.

68. A-All Pest Control submitted annual reports for 1990 and 1991, both of which listed among other pesticides: ZP Dust, EPA No. 7173-113; Boric Acid, EPA No. 6720-129; and DZN, EPA No. 100-649-6720.

69. In 1988, A-All Pest Control used a pesticide which it reported as Pyrethrin Flushing Insect., EPA No. 478123. As discussed in Finding No. 35 above, no pesticide product with this name and number was registered with the Department. A pesticide product with this name and a somewhat similar number was registered with a registration that expired on September 30, 1988 and the product was not registered during the latter part of 1988. The evidence does not indicate when in 1988 A-All Pest Control used this product.

70. In 1990 and 1991, A-All Pest Control used a pesticide which it reported as ZP Dust, EPA No. 7173-113. No pesticide product with this name and number was registered with the Department. During 1990 and 1991, Rozol Tracking Powder for Rats and Mice, EPA No. 7173-113 was registered with the Department. Z.P. Tracking Powder, EPA No. 12455-16 was registered with the Department during 1990 and 1991.

71. In 1990 and 1991, A-All Pest Control used a pesticide which it reported as Boric Acid, EPA No. 6720-129. No pesticide product designated by this name and number combination was registered with the Department in 1991. The pesticide product SMCP Bor/Act Roach Control Agent, EPA No. 6720-139 was, however, registered from April 18, 1990 to March 31, 1992 (see Finding No. 44 above). The hearing record does not indicate that there was any pesticide product registered under the EPA number 6720-129.

72. The Amended Complaint alleged that A-All Pest Control had represented that it had used Diazinon, EPA No. 100-649-6720 but this does not appear on the annual report forms in question. Instead, A-All Pest Control reported that it had used DZN, EPA No. 100-649-6720. The hearing record contains no evidence regarding the registration status of DZN, EPA No. 100-649-6720 and fails to prove that this pesticide product was not registered.

Timeliness of reports

73. As discussed in Finding No. 53 above, a pesticide business may submit its annual report both in early January, for purposes of the annual report itself, and a second time with its application for renewal of its business registration. The copies of A-All Pest Control's annual reports for 1988 and 1989 which are in evidence were copies that were submitted with applications for renewal of A-All Pest Control's business registration. The applications for business registration renewal which were submitted in January 1990 and January 1991 are not stamped with a receipt date by the Department so their relation to the corresponding annual reports is not clear. The January 1992 renewal application has a handwritten note at the top of the page which reads: "1 copy by 1-10-92. 2nd copy with application."

74. For reasons similar to those discussed above regarding when Nationwise submitted its annual reports (p. 30 of this hearing report), the record does not demonstrate that A-All Pest Control submitted its annual reports late in 1988, 1989, 1990 or 1991.

Discussion (Count 7)

Supervision

Although the Answer stated that Mr. Taylor was under the direct supervision of two certified applicators, who were identified in the Answer by their names and certificate numbers, the Respondents presented no evidence in the hearing regarding these two persons' roles or their certifications. Both Mr. Taylor and Ms. DeCaprio testified that Mr. Taylor could call the office if he ran into a problem and that someone in the office would arrange for him to speak with a pesticide applicator who was certified in the appropriate category. None of these applicators, nor the company for which they worked, were identified.

A-All Pest Control had no certified applicators other than Mr. Taylor during 1991. The Respondents' positions and testimony regarding having certified applicators doing or supervising the pesticide applications are internally inconsistent in a number of regards and are not credible. They asserted both that Mr. Taylor thought his certification was valid during April 21, 1991 through September 27, 1991 and that he was under direct supervision of a certified applicator. One of the certified applicators who were identified in the Answer as supervising Mr. Taylor was listed in the Respondents' employee list as being an employee of Nationwise in 1989 and 1991 and the other applicator probably was an employee of Nationwise during these years as well although his name is misspelled in one or the other document. Although the Respondents asserted as an affirmative defense that these individuals supervised an A-All Pest Control employee, the Respondents also assert that the Department Staff has not proved an interconnection between A-All Pest Control and Nationwise.

6 NYCRR 325.1(ao) defines "under the direct supervision of" as meaning:

"...the act or process whereby the application of a pesticide, unless otherwise prescribed [sic] by its labeling, is made by a competent person acting under the instructions and control of a certified applicator who is responsible for the actions of that person and who is available if and when needed, even though such certified applicator is not physically present at the time and place the pesticide is applied."

Under this definition, the certified applicator must be responsible for the actions of the person who is applying the pesticides. In the present case, no such relationship of responsibility existed. There was no individual certified applicator or applicators identified in the evidence as being responsible for Mr. Taylor's work while he was allegedly working under supervision. Mr. Taylor was working on his own at LaGuardia Airport to the extent that the records regarding the airport pesticide applications were kept by Mr. Taylor rather than being kept at A-All Pest Control's office in Dobbs Ferry.

The only pesticide application "supervision" which was described in the testimony was through phone calls, if Mr. Taylor had a question or problem. Under such a system, there was no indication that the individual certified applicator who would have responded to a particular call could be identified at a later date, and consequently this certified applicator would not be responsible for Mr. Taylor's actions in a particular pesticide application. There was no indication that he received instructions from certified applicators unless he had a question. There was also no indication that he was under the control of another applicator in the sense that there was a supervisory relationship or that any other applicator checked his work.

The Department Staff proved that A-All Pest Control did not employ a certified applicator other than Mr. Taylor during the time period from early 1990 to early 1992, which includes the time during which his certification had lapsed. Even if Nationwise and A-All Pest Control are so closely linked that an applicator employed by Nationwise could be legally responsible for the actions of an employee of A-All Pest Control, the Respondents did not demonstrate that Mr. Taylor was working under the direct supervision of a certified applicator during April 21, 1991 through September 27, 1991 as the term "under the direct supervision" is used in Part 325.

Food processing applications

With regard to the pesticide applications discussed in Finding 63 (at restaurants in Westchester and Bronx Counties in November 1991), an Investigator who works for the Department and who accompanied the Pesticide Control Specialist at the July 21, 1992 inspection of A-All Pest Control testified that he had written down a list of the pesticide applications done by Mr. Taylor at various McDonald's restaurants. The Pesticide Control Specialist testified that Mr. Taylor had confirmed that these applications occurred in the kitchen areas of these restaurants.

The Respondents' Answer denied the Department's allegations that A-All Pest Control performed pesticide applications in the food processing category on (among other dates) November 12 and 26, 1991 and that Mr. Taylor performed "the above applications in the category listed in 6 NYCRR 325.16(g)(6) (food processing - 7F)." The Answer also stated as an affirmative defense that Mr. Taylor was "under direct supervision of pesticide applicators certified in category 7F on November 14 and 29, 1989 and November 11 [sic] and 26, 1991, when he allegedly performed several pesticide applications in category 7F." At the hearing, Mr. Taylor denied having done the pesticide applications at the locations and dates recorded by the Investigator. He also testified that the supervision of his work took the form of being able to call the office and talk with certified applicators.

Mr. Taylor's affidavit which was submitted with the Respondents' June 18, 1993 motion to dismiss states that the applications which he performed on these dates were exterior crack and crevice applications at fast food restaurants. The affidavit further stated that, "these applications did not take place at food plants involving food manufacturing, processing and warehousing, as food processing is defined in the Pesticide Applicator Training Manual for Food Processing Certification" and that therefore a category 7F certification was not required. This account of these pesticide applications does not appear in the testimony from the hearing and no party sought to put this definition into evidence. The Respondents did not rebut the testimony which identified these applications as being in the food processing category.

Ms. DeCaprio testified that A-All Pest Control had contracts with the restaurants in question but had subcontracted the work to Nationwise due to a schedule conflict with Mr. Taylor's work at LaGuardia Airport. She did not have documentation about this with her on the date of this testimony but stated that she would look to see if such records existed. The Department Staff stated that they would have no objection to the records being submitted later. On July 14, 1995, the Respondents submitted copies of service slips pertaining to these pesticide applications. These bore the name and address of A-All Pest Control, Inc. and had no reference to Nationwise. They also contained no reference to Mr. Taylor but had the signature of Douglas Sullins in the "technician signature" box. There was no information identifying a person as the certified applicator for these applications. The slips contained the note "sprayed entire store." Mr. Sullins is listed as an employee of Nationwise as of November 1991 in the employee list prepared by the Respondents. This list also identifies Mr. Taylor as an employee of Nationwise at that time, although he was also employed by A-All Pest Control at that same time.

Mr. Taylor's credibility is also called into question by his testimony about where he engaged in applying pesticides at LaGuardia Airport. Although he testified that he applied pesticides only in the food court associated with various fast food establishments rather than in these establishments themselves, the records of these pesticide applications, to the extent that they are legible, contain notations of "kitchen" along with the names of several of these establishment.

The testimony and evidence presented by the Department Staff regarding this allegation is more credible than that presented by the Respondents.

Duration of applicator certifications

The discussions regarding the duration of pesticide applicator certifications and the question of whether the cards are retroactively valid based on their expiration dates are also relevant to Count 7 (see pages 15 and 16 of this report).

The time periods for applicator certifications would be significant to Findings 60 and 61 and Conclusions 14 and 15. These Findings and Conclusions presume that the cards expired on their stated expiration dates, which were under the six month temporary card system at the time of these alleged violations. If, however, one were to presume that the temporary card system was not valid and that a card would instead be valid for three years, the conclusion would be that Mr. Taylor and A-All Pest Control were not in and September 27, 1991.

In contrast to this, the question of the time periods for applicator certifications would not have any bearing on Findings 62 through 64 and Conclusions 16 and 17. These pertain to pesticide applications in the food processing category. Regardless of how long a pesticide applicator certification or an identification card is valid, Mr. Taylor did not become certified in the food processing category until after the dates of the pesticide applications in question. A-All Pest Control had no other applicator who was certified in the food processing category on the dates of these applications.

Records

As stated in Finding 66, some of A-All Pest Control's records contained numerous illegible entries. Although the Respondents presented testimony that there were also receipt books which contained the required information, these receipt books were never offered as evidence. They were also not made available to the Department's pesticide control specialist during the inspection in which the illegible records were made available, even though he questioned why the records were illegible. Although there were records in other forms for pesticide applications at other times and places, there is no credible evidence of supplemental records for the pesticide applications referenced in Finding 66.

Conclusions - Count 7

13. A-All Pest Control violated ECL 33-1301(8-a) by engaging in the application of pesticides during April 1, 1990 through June 20, 1990 while it was not registered with the Department as a pesticide business. A-All Pest Control's former business registration did not continue in effect after its expiration date of March 31, 1990 under State Administrative Procedure Act 401.2 since the application for renewal was incomplete.

14. Mr. Taylor violated ECL 33-0905(1) and 33-1301(8) by engaging in the commercial application of pesticides during the time between April 21, 1991 and September 27, 1991 while he was not certified and was not working under the direct supervision of a certified applicator.

15. A-All Pest Control violated ECL 33-0905(1) and 33-1301(8) since Mr. Taylor carried out these pesticide applications as an employee of A-All Pest Control and within the scope of his employment.

16. Mr. Taylor violated ECL 33-0905(1) and ECL 33-1301(8) in November, 1989 and November, 1991 by engaging in pesticide applications in the food processing category while he was not certified for this category and was not under the direct supervision of an applicator certified in this category. These pesticide applications took place on four separate days. ECL 33-0905(3)(c) and 6 NYCRR 325.18(b) authorize the Department to certify pesticide applicators in particular categories of certification.

17. A-All Pest Control violated ECL 33-0905(1) and ECL 33-1301(8) since Mr. Taylor carried out the pesticide applications discussed in the preceding Conclusion as an employee of A-All Pest Control and within the scope of his employment.

18. A-All Pest Control violated 6 NYCRR 325.25(a) by failing to keep adequate records for pesticide applications on November 14, 1989, November 29, 1989 and April 19, 1991 and by having numerous illegible entries in its records for pesticide applications which it did at LaGuardia Airport in the spring of 1990.

19. If one relies on the exact pesticide product name and number reported by A-All Pest Control for three of the pesticide products which it used, these products were not registered with the Department during certain years in which A-All Pest Control used them (see Findings 69 through 71). This report concludes, however, that the names and numbers reported by A-All Pest Control were reporting errors and that two of the products were actually pesticides which were registered. As with the similar allegations against Nationwise, the Complaint did not allege reporting violations with regard to these errors and this hearing report does not recommend finding A-All Pest Control in violation with regard to them. The third product (Pyrethrin Flushing Insecticide, EPA No. 4758-123) was registered during part of this year in which A-All Pest Control reported having used it and the hearing record does not demonstrate whether it was used while it was still registered or after it was suspended. The allegation involving Diazinon, EPA No. 100-649-6720 was not proved.

20. The hearing record does not prove a violation with respect to the pesticide product which A-All Pest Control allegedly reported as Diazinon, EPA No. 100-649-6720.

21. The hearing record does not demonstrate that A-All Pest Control violated 6 NYCRR 325.25(b) by submitting its annual reports later than the required submission date.

Count 8 - Alleged falsification of business registration

75. On or about July 24, 1991, Nationwise submitted documents to the City of Peekskill in connection with a bid for a pesticide application. These documents included what purported to be a pesticide applicator business registration certificate for Nationwise. The expiration date shown on this certificate was March 31, 1992.

76. As of the time when these bid documents were submitted to the City of Peekskill, the Department had not issued to Nationwise any pesticide business registration certificate that bore the expiration date of March 31, 1992. The last pesticide business registration certificate which the Department issued to Nationwise expired on March 31, 1991. The certificate which Nationwise submitted to Peekskill was produced by altering the date on Nationwise's pesticide business registration certificate that had an expiration date of March 31, 1991. Ms. DeCaprio either changed the date herself or instructed an unidentified person to alter the date, but she caused the date on the certificate to be altered.

77. Mr. DeCaprio sent the business registration with the altered date to the City of Peekskill by facsimile on July 24, 1991. The facsimile transmission also included a cover sheet, a certificate of insurance and a letter regarding the cost of the proposed work. The letter was signed by Mr. DeCaprio, with the title "Coordinator."

78. Nationwise submitted its application for its 1991-1992 pesticide business registration in late January, 1991. Nationwise did not receive a pesticide business registration in response to this application. The Department did not issue the requested registration at least in part because of its enforcement investigation of Nationwise.

79. During the time between January 1991 and April 1992, there was some interaction by telephone between Ms. DeCaprio and employees of the Department regarding Nationwise's application for pesticide business registration. There is no credible evidence to indicate that any employee of the Department authorized Ms. DeCaprio to alter the date on the registration which expired on March 31, 1991.

80. On April 1, 1992, Carol Backman Krebs, Esq., Assistant Regional Attorney in the Department's Region 3 Office, wrote to Drayton Grant, Esq., who had contacted the Department on behalf of Nationwise regarding the application for registration. Ms. Krebs's letter confirmed a telephone conversation with Ms. Grant and stated that Nationwise may lawfully continue to operate under the provisions of the State Administrative Procedure Act Section 401(2) until the pending application had been fully determined by the Department.

Discussion (Count 8)

With regard to the alteration of the business registration, the Respondents asserted that a Department employee had authorized the alteration. For several reasons, however, the Respondents' evidence in support of this assertion is neither credible nor sufficient. The alteration was supposedly authorized by a male employee of the Department but this employee was never identified by the Respondents even after a Department witness named all of the males who were working in the relevant Bureau during the general time when the conversation would have taken place. Although Ms. DeCaprio testified that customers were inquiring about the expired pesticide business registration and that the lack of a current registration was beginning to have serious adverse effects on Nationwise's ability to continue working, the Respondents presented no documents confirming the resolution of what would have been a serious problem. It appears unlikely that Nationwise would have relied on an undocumented phone conversation with an unidentified Department employee for something this significant.

Mr. DeCaprio was involved in the above transaction with the City of Peekskill in the summer of 1991. His role with Nationwise at that time was in dispute in this proceeding. The Amended Complaint alleged that Mr. DeCaprio and Nationwise had submitted to Peekskill what purported to be Nationwise's business registration (Amended Complaint, Paragraph 108). The Answer denied this paragraph but admitted that, "on or about July 24, 1991, Nationwise prepared bid papers which included a business registration certificate, as required by the bid specifications, and that Ferdinand DeCaprio as a consultant and without knowledge of the contents, delivered the bid papers to the City of Peekskill."

Mr. DeCaprio did, however, send to the City of Peekskill by fax two letters that a