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Decaprio/Nationwise Exterminating - Ruling 3, February 22, 1995

Ruling 3, February 22, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Proceedings to Deny and Revoke Business Registrations and Applicator Certifications
based upon Fraudulent Business Practices and Violations of Article 33 of
the Environmental Conservation Law and Part 325 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York,

- by -

FERDINAND DECAPRIO, JR. a/k/a
FRED DECAPRIO, JR.,
CLAIRE DECAPRIO,
LILLIAN COSTANZO, a/k/a
LILLIAN GLAZER COSTANZO,
CHARLES SCHNEIDER,
ANDRE TAYLOR,
NATIONWISE EXTERMINATING AND
DEODORIZING, INC., and
ALL OF THE ABOVE-NAMED RESPONDENTS
ALSO DOING BUSINESS AS

1) TERMITES AND ANTS COMPANY,
2) A-ALL PEST CONTROL, and
3) ALL CONSERVATION, INC.,

Respondents

RULING

February 22, 1995

On December 15, 1994, I received a motion from the Respondents which requested an order that the Respondents need not defend against any of the eleven counts of the Amended Complaint. The Department Staff responded to the motion on January 19, 1995 and the Respondents submitted further correspondence on January 30, 1995.

As the basis for their motion, the Respondents stated that the evidence in the Department Staff's direct case was insufficient and had failed to establish a prima facie case on the counts in the Amended Compliant. The Respondents' papers primarily discuss possible interpretations of the evidence, inferences that could be drawn from information which the Respondents state the Department could have put in evidence but did not, or alternative interpretations of the evidence that the Department Staff submitted. Some of the things which the Respondents cite as deficiencies in the Department Staff's case, particularly with regard to supervision of pesticide applicators, would not actually be deficiencies but instead relate to affirmative defenses on which the Respondents may present testimony in their own case.

The Respondents' motion requests that I end the hearing at this point and that I recommend to the Commissioner that the Amended Complaint be dismissed. In evaluating this motion, it is appropriate to evaluate the evidence presented by the Department Staff in the light most favorable to their case (105 N.Y. Jur. 2d Trial 292-294). The Department Staff has presented evidence on each count which is sufficient to establish a prima facie case. This evidence will need to be evaluated further, at the end of the hearing process after the remaining evidence has been presented, when a Report and an Order will be prepared based on the record as a whole. At the present time, however, the evidence supports continuing the hearing and not recommending dismissal.

I will contact the parties by conference phone call to schedule additional hearing dates. The conference call will take place on Tuesday, February 28, 1995 at 10:00 A.M., unless a party notifies me of a schedule conflict with that date. If there is a schedule conflict, please notify me of a proposed alternate time for the conference call.

_____________/s/_____________
Susan J. DuBois
Administrative Law Judge

Dated: Albany, New York
February 22, 1995

To: Randall G. Lawrence, Esq.
Carol Backman Krebs, Esq.

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