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DeMuro, Frank R. - Order, March 13, 2003

Order, March 13, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 33 and 71 of
the Environmental Conservation Law of the State of New York and Part 325 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- by -

FRANK R. DeMURO,

Respondent.

ORDER

DEC Case No

3-20010320-35

WHEREAS:

  1. Respondent, Frank R. DeMuro, is a pesticide applicator doing business as Ricky's Pest Control at 171 Saratoga Avenue in the City of Yonkers, Westchester County, New York.
  2. In 1998, 1999 and 2000, respectively, the Respondent filed a Commercial Applicators Annual report in which the Respondent stated that he applied pesticides during those years. The Respondent listed his business registration number as 05210.
  3. According to Department records, the Respondent's business was not registered with the Department in 1998, 1999 or 2000.
  4. Pursuant to ECL 33-0907(1) and 6 NYCRR 325.23(a), pesticide businesses must register with the Commissioner annually.
  5. Pursuant to ECL 33-1301(8a), it is unlawful for any person or business to engage in the business of applying pesticides unless the business is registered by the Commissioner.
  6. As evidenced by the affidavit of ECO Dale R. Brickwood, the Respondent was personally served with the Department Staff's Notice of Hearing and Complaint on November 27, 2001.
  7. Pursuant to 6 NYCRR 622.4(a), the Respondent had twenty days from his receipt of the Complaint to serve an answer. The twentieth day ran on November 27, 2001.
  8. The Department Staff did not receive an answer to the complaint.
  9. Section 71-2907(1) of the ECL provides that any person who violates any provision of ECL Article 33 or any rule, regulation or order issued thereunder, or commits any offense described in ECL Section 33-1301 shall be liable for a civil penalty not to exceed $5,000 for a first violation, and not to exceed $10,000 for a subsequent violation.

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

  1. The Respondent has failed to timely serve and file an answer to the complaint, and thus, the Respondent has waived his right to a hearing on the cause of action, and the Department Staff are entitled to a default judgment pursuant to 6 NYCRR 622.15; and
  2. The Respondent's activities as described above are in violation of ECL 33-0907(1), ECL 33-1301(8a) and 6NYCRR 325.23(a); and
  3. The Respondent is hereby assessed a civil penalty in the amount of twenty-five thousand ($25,000.00) dollars; Respondent shall within thirty (30) days of the service of a conformed copy of this Order, submit such payments of penalty by cashiers, certified check or money order drawn to the order of "NYSDEC" to: Regional Attorney, Legal Affairs Region 3, New York State Department of Environmental Conservation, Region 3, 21 South Putt Corners Road, New Paltz, NY 12561; and
  4. The Respondent is hereby directed to cease and desist from any continuing or further violations and ordered to strictly comply with the ECL; and
  5. All communications from Respondent to the Department concerning this Order shall be made to Attorney Jennifer David Hesse, NYSDEC, Region 3, 21 South Putt Corners Road, New Paltz, NY 12561.
  6. The provisions, terms and conditions of this Decision and Order shall bind the Respondent, his officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.
For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: Erin M. Crotty, Commissioner

Dated: Albany, New York
March 13, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violations of Articles 33 and 71 of the Environmental Conservation Law of

the State of New York and Part 325 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State of New York

- By-

FRANK R. DeMURO,

Respondent.

DEFAULT SUMMARY REPORT

DEC Case No.

3-20010320-35

Procedural History

By Notice of Motion dated December 14, 2001, Staff of the Department of Environmental Conservation (DEC or Department) seeks a judgment by default against Respondent for alleged violations of Sections 33-0907(1) and 33-1301(8a) of the Environmental Conservation Law (ECL) and Section 325.23(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR). DEC alleges that Respondent violated the aforementioned statutory and regulatory provisions by failing to register annually with the Commissioner as an individual commercial applicator of pesticides. In support of its motion, DEC submitted an affirmation by Assistant Regional Attorney Jennifer David Hesse; a copy of the Notice of Hearing and Complaint served in this matter; an affidavit of personal service by Environmental Conservation Officer Dale R. Brickwood dated November 28, 2001, indicating personal service of the aforementioned Notice of Hearing and Complaint on the Respondent on November 7, 2001; a proposed Order; and proof of service of the instant Motion for Default Judgment on the Respondent. As relief, the motion seeks an Order and Judgment, pursuant to 6 NYCRR 622.15, to be issued by the Commissioner in favor of the Department Staff against Respondent (1) declaring Respondent in default in the instant proceedings; (2) declaring Respondent in violation of ECL 33-0907(1), ECL 33-1301(8a) and 6 NYCRR 325.23(a); (3) ordering Respondent to pay a civil penalty in the amount of $25,000.00; (4) ordering Respondent to cease and desist from any continuing or further violations and to strictly comply with the ECL; and (5) directing that the provisions, terms and conditions of the instant Decision and Order shall bind the Respondent, his officers, directors, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

As of the date of the Motion, Respondent has failed to appear and serve an Answer to the Complaint or otherwise move, although the time to do so expired on or about November 27, 2001.

Respondent was served with the Notice of Motion for Default Order and Judgment and supporting papers on or about December 14, 2001. Respondent has not opposed the motion.

Default Procedures

Section 622.15, "Default Procedures" provides, in pertinent part, that: "(b) The motion for a default judgment .... must contain: (1) proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding; (2) proof of the respondent's failure to appear or failure to file a timely answer; and (3) a proposed order."

Findings of Fact

The following Findings of Fact are based upon the papers submitted, as identified above:

  1. Respondent, Frank R. DeMuro, is a pesticide applicator doing business as Ricky 's Pest Control at 171 Saratoga Avenue in the City of Yonkers, Westchester County, New York.
  2. In 1998, 1999 and 2000, respectively, the Respondent filed a Commercial Applicators Annual Report in which the Respondent stated that he applied pesticides during those years. The Respondent listed his business registration number as 05210.
  3. According to Department records, the Respondent's business was not registered with the Department in 1998, 1999 or 2000, inasmuch as his business registration, number 05210, had expired.
  4. Pursuant to ECL 33-0907(1) and 6 NYCRR 325.23(a), pesticide businesses must register with the Commissioner annually.
  5. Pursuant to ECL 33-1301(8a), it is unlawful for any person or business to engage in the business of applying pesticides unless the business is registered by the Commissioner.
  6. By Notice of Hearing and Complaint dated August 17, 2001, the Respondent was charged with the violation the aforementioned sections of the ECL and 6 NYCRR, said Complaint alleging the facts articulated herein.
  7. As evidenced by the affidavit of ECO Dale R. Brickwood, the Respondent was personally served with the Notice of Hearing and Complaint on November 7, 2001.
  8. Pursuant to 6 NYCRR 622.4(a), the Respondent had twenty days from his receipt of the Notice of Hearing and Complaint to serve an Answer. The twentieth day ran on November 27, 2001.
  9. The Department Staff did not receive an Answer to the Complaint within the aforementioned twenty day period nor has Department Staff received any request from the Respondent to serve a late Answer.
  10. Section 71-2907(1) of the ECL provides that any person who violates any provision of ECL Article 33 or any rule, regulation or order issued thereunder, or commits any offense described in ECL Section 33-1301 shall be liable for a civil penalty not te exceed $5,000 for a first violation, and not to exceed $10,000 for a subsequent violation.
  11. Staff served the instant Motion for Default Order and Judgment and supporting papers on Respondent on or about December 14, 2001. Respondent has not opposed said motion, and the time to serve papers in opposition to the motion expired on or about December 26, 2001.
  12. The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

Conclusion

The motion for default judgment should be granted. This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

_____________/s/_____________
Richard R. Wissler
Administrative Law Judge

To: Jennifer David Hesse, Esq.
NYS Department of Environmental Conservation
Region 3 Headquarters
21 South Putt Corners Road
New Paltz, New York 12561

Frank R. DeMuro
171 Saratoga Avenue
Yonkers, New York 10705

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