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Decaprio/Nationwise Exterminating - Order, February 28, 1997

Order, February 28, 1997

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Proceedings to Deny and Revoke Pesticide 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, INC., and
3) ALL CONSERVATION, INC.,

Respondents

ORDER REDETERMINING PENALTIES

DEC Case No.

3-2672/9208

WHEREAS:

  1. Pursuant to Notices of Hearing and Complaints, an administrative enforcement hearing was convened by the Department to consider alleged violations by the above Respondents and the proposed revocation or denial of pesticide business registrations and pesticide applicator certifications. A Decision and Order in the above matter was issued on January 24, 1996, which found the Respondents to be in violation of Environmental Conservation Law 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 which the Decision and Order adopted. The Decision and Order imposed certain civil penalties, denied, revoked or suspended certain licenses, dismissed certain allegations and ruled on a pending appeal.
  2. Pursuant to CPLR Article 78, the Respondents appealed from the Decision and Order to the Supreme Court, Appellate Division, Third Department. In a Memorandum and Judgement dated January 30, 1997, the Appellate Division modified the Decision and Order by annulling certain findings concerning two violations and confirmed the determination as modified (see In the Matter of Ferdinand DeCaprio, Jr., et al. v. Michael D. Zagata, Index No. 76682).
  3. The Court directed the Commissioner to redetermine the penalties imposed against two parties with respect to whom it had annulled a finding of violation.
  4. The Administrative Law Judge (ALJ) who had held the hearing was assigned to prepare a supplemental report with recommendations to the Commissioner about redetermination of the penalty consistent with the Court's decision. The recommendations of the ALJ in the attached supplemental report are adopted, and are consistent with the decision of the Appellate Division. I therefore redetermine the penalties assessed against Respondents A-All Pest Control, Inc. and Andre Taylor in the captioned matter as set forth below. The facts and conclusions sustained by the Court as discussed in the attached supplemental report are the basis for the redetermination of the penalties.
  5. The Acting Commissioner, having served as General Counsel of the Department during the time this matter was adjudicated, has delegated responsibility for making the Department's final decision hereon to the Acting Deputy Commissioner for Natural Resources.

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

  1. The civil penalties assessed by the January 24, 1996 Decision and Order are modified as follows: 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 $39,900 (THIRTY NINE THOUSAND NINE HUNDRED DOLLARS), in place of the $43,900 penalty originally assessed. Respondent Andre Taylor is assessed a civil penalty of $4,000 (FOUR THOUSAND DOLLARS), in place of the $8,000 penalty originally assessed. 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, to the extent that the penalties have not already been paid.
  2. The findings, orders and rulings of the January 24, 1996 Decision and Order are otherwise not changed.
  3. 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.
  4. 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.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Frank M. Dunstan
Acting Deputy Commissioner for Natural Resources

Dated: Albany, New York
February 28, 1997

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Proceedings to Deny and Revoke Pesticide 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
TERMITES AND ANTS COMPANY
A-ALL PEST CONTROL, INC., and
ALL CONSERVATION, INC.
DEC Case No. 3-2672/9208
SUPPLEMENTAL REPORT

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

Proceedings

The present supplemental report discusses the redetermination of penalties which were assessed against a pesticide applicator and against two companies in a Decision and Order issued on January 24, 1996. The Respondents challenged the Decision and Order in a proceeding under Article 78 of the Civil Practice Law and Rules (CPLR). On January 30, 1997, the New York State Appellate Division, Third Department, annulled two of the violations and remitted the matter to the Commissioner for a redetermination of the penalty imposed (In the Matter of Ferdinand DeCaprio, Jr., et al. v. Michael D. Zagata, Index No. 76682).

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 had been 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.

The hearing report concluded that the following violations occurred. Nationwise and Mr. Schneider engaged in the application of pesticides for control of termites while Mr. Schneider was not certified 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 during April 1, 1990 to June 20, 1990 (Note: the latter conclusion was annulled by the Court decision). Mr. Taylor and A-All Pest Control engaged in the application of pesticides while Mr. Taylor was not a certified applicator during April 21, 1991 to September 27, 1991 (which was the second conclusion annulled by the Court decision), 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 concluded 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 included findings regarding the environmental compliance history of Nationwise and Mr. DeCaprio and regarding Mr. DeCaprio's plea of guilty to federal charges of evasion of personal income taxes for 1983.

The Decision and Order imposed monetary civil penalties as follows:

Nationwise and A-All were jointly and severally assessed a civil penalty of $43,900 (Forty three thousand nine hundred dollars).

Charles Schneider was assessed a civil penalty of $4,000 (Four thousand dollars).

Andre Taylor was assessed a civil penalty of $8,000 (Eight thousand dollars).

In addition, the Decision and Order denied Nationwise's application for renewal of its pesticide business registration and revoked A-All's existing business registration. The Decision and Order revoked Ferdinand Decaprio's pesticide applicator certification and suspended Andre Taylor's pesticide applicator certification for six months.

On January 30, 1997, the Appellate Division modified the Commissioner's Decision and Order by annulling so much thereof as found that Andre Taylor was not certified between April 21, 1991 and September 27, 1991, and as found that A-All was operating without a valid business registration between April 1, 1990 and June 20, 1990. The matter was remanded to the Commissioner for a redetermination of the penalty imposed against Taylor and A-All.

The hearing report which was adopted by the Decision and Order discussed the penalties assessed against Taylor and A-All. A civil penalty of $4,000 (Four thousand dollars) was recommended for what the report concluded was A-All's application of pesticides while not registered as a pesticide business. A civil penalty of $4,000 was recommended for what the report concluded was Mr. Taylor's application of pesticides while not a certified applicator. Additional penalties against Taylor and A-All were recommended for other violations which were not annulled by the Court (report, pp. 53-55). The Decision and Order adopted the findings, conclusions and recommendations of the hearing report.

In order to redetermine the civil penalties, in compliance with the Court's Decision, the penalties assessed for the two violations which have been annulled should be subtracted from the total penalties assessed.

The hearing report recommended imposing penalties jointly and severally against Nationwise and A-All, since the evidence demonstrated that although the two companies are formally corporations, they are for practical purposes the family business of Mr. and Ms. DeCaprio. The Decision and Order imposed penalties on the two companies in this manner. The Court's Decision expressly recognized the "intertwined affairs" of the two companies, with Mr. DeCaprio controlling both of them, in upholding consideration of Nationwise's history in deciding to revoke A-All's business registration.

The Decision and Order should therefore be modified so that the civil penalty assessed against Mr. Taylor is reduced to $4,000 (Four thousand dollars) and the civil penalty assessed jointly and severally against Nationwise and A-All is reduced to $39,900 (Thirty nine thousand nine hundred dollars).

The two cases cited by the Court in directing that the penalties be reevaluated dealt with suspension of licenses, indicating that there should be reevaluation of the suspension of Mr. Taylor's certification and the revocation of A-All's registration in addition to reevaluation of the monetary penalties. The suspension and revocation, unlike the two monetary penalties discussed above, were not each linked to a specific violation but instead were based on all of the violations committed by each Respondent and the evidence concerning the Respondent's past history and relation to other Respondents (hearing report, pp. 51-53). Two of the violations have now been annulled by the Court Decision. The remaining violations, and the evidence concerning A-All's relationship to Nationwise, still support the six month suspension of Mr. Taylor's certification and the revocation of A-All's registration.

Without the violations which have been annulled, A-All still violated ECL Article 33 and its implementing regulations by application of pesticides by an applicator who was not certified in the appropriate category (food processing category) and by extensive recordkeeping violations. The record regarding A-All's relationship to Nationwise, and regarding Nationwise's history of noncompliance, also still supports revocation of A-All's business registration.

Similarly, although the finding about Mr. Taylor's certification during April 21, 1991 to September 27, 1991 has been annulled, the Court upheld the finding that Mr. Taylor unlawfully applied pesticides in restaurant kitchens prior to July 28, 1992, when he became certified in the food processing category. In addition, the Court's Decision did not disturb the finding of recordkeeping violations by A-All in connection with pesticide applications at LaGuardia Airport. Although this violation was charged against A-All, Mr. Taylor was the person who maintained these records (report, p. 36). This violation was significantly more serious than an omission of an item from an otherwise-useful record keeping system. Numerous required records were illegible for many of the pesticide applications. In addition, A-All and Mr. Taylor attempted to use the poor quality of these records to evade responsibility for other alleged violations (report, p. 55).

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