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Fountain, John and Joanne Foutain d/b/a Fountain Security - Order, July 6, 1999

Order, July 6, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the matter of

the Alleged Violation of Articles 15, 25 and 71 of
the New York State Environmental Conservation Law ("ECL")
and Parts 612 and 613.5 of Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York ("6 NYCRR"),

- by -

JOHN FOUNTAIN & JOANNE FOUNTAIN
dba Fountain Security Services,

Respondents

ORDER FILE NO.

R5-2291-98-11

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated March 3, 1999, the New York State Department of Environmental Conservation (DEC) Staff commenced an administrative enforcement proceeding against the Respondent.
  2. Respondents, John & Joanne Fountain were properly served with a Notice of Hearing and Complaint on March 30, 1999.
  3. Service of process was accomplished in accordance with 6 NYCRR §622.3 and CPLR §2103.
  4. The time for the Respondent to serve an Answer expired at the latest April 19, 1999.
  5. DEC staff made a Motion for Default Judgement dated May 21, 1999 outlining this failure.
  6. According to §622.15 of 6 NYCRR, Respondent is found to be in default and having waived its right to a hearing in this enforcement proceeding. Therefore, Department Staff's allegation against Respondent in its Complaint are deemed to have been admitted by Respondent.
  7. Respondent violated Environmental Conservation Law §17-1005 and §17-1009, and 6 NYCRR §621.2 and §613.5, by failing to timely register and test its petroleum bulk storage tanks with the Department.

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

  1. Respondent pay a penalty in the amount of FOURTEEN-THOUSAND FIVE HUNDRED ($14,500) DOLLARS.
  2. Respondents conduct tightness testing or permanently close tank 007 located at its petroleum bulk storage facility on West Main Street, Malone, NY, pursuant to 6 NYCRR §613.5 and 6 NYCRR §613.9(b), (c) and (d) within 15 days of this order.
  3. Respondents transfer registration of tank 007 located at its petroleum bulk storage facility on West Main Street, Malone, NY within 15 days of this order.
  4. All communications between Respondents and Department Staff concerning this Order shall be made to the Department's Region 5 Director, New York State Department of Environmental Conservation Route 86, P.O. Box 296, Ray Brook, New York, 12977-0296.
  5. The provisions, terms and conditions of the Order shall bind the Respondent, his agents, servants, employees, successors, and assigns and all persons, firms and corporations acting for or on the behalf of Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill, Commissioner

Dated: Albany, New York
July 6, 1999

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Alleged Violation of Article 15 of the New York State Environmental Conservation Law by

John Fountain and Joanne Fountain
dba
Fountain Security Services

West Main Street, Malone,
Franklin County

Respondent

Summary Report on Motion for Default Judgment

Case No. R5-2291-98-11

Proceedings

Pursuant to Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York, Section 622.15, the New York State Department of Environmental Conservation ("Department") Region 5 Staff ("Staff") has moved for a default judgment against John Fountain and Joanne Fountain, dba Fountain Security Services (the "Respondent").

Staff made its motion on or about May 21st, 1999 by sending to John and Joanne Fountain, dba Fountain Security Services, the Respondents, the following papers:

A Notice of Motion for Default Judgment dated May 21st, 1999; a Motion for Default Judgment; an Affirmation in Support of Motion for Default Judgment; and an unsigned Order;

And by filing, on or about May 21st, 1999, said documents with the Department's Office of Hearings and Mediation Services.

Respondent's response to Staff's Motion was due on June 7th, 1999 pursuant to 6 NYCRR §622.6, presuming Respondent is entitled to an additional 5 days when service is made by ordinary mail and excluding Saturdays, Sundays and the public holiday.

No response to the motion has been received from the Respondent as of the date of this Summary Report.

Default Procedures

Section 622.15, "Default procedures" provides in pertinent part:

"(b) The motion for a default judgment may be made orally on the record or in writing and 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.

"(c) Upon a finding by the ALJ that the requirements of subdivision (b) have been adequately met, the ALJ will submit a summary report, which will be limited to a description of the circumstances of the default, and the proposed order to the commissioner. ..."

The following Findings are based upon the papers submitted, as identified above.

Findings

  1. On March 30th, 1999, John T. Flynn, not a Party to this action and over eighteen years of age personally served a copy of the Notice of Hearing and Complaint upon John Fountain at the Law Office of Jack Piasecki, 63 East Main Street, Malone, NY 12953.
  2. As of May 21st, 1999 (the date of the motion papers), John Fountain and Joanne Fountain, dba Fountain Security Services, had not responded to the Notice of Hearing and complaint.
  3. The requirements for a default judgement have been adequately met as prescribed by 6 NYCRR §622.15(b).

Conclusion

This Summary Report and Staff's proposed Order (attached hereto) can be referred to the Commissioner for final determination.

_____________/s/_____________
Francis W. Serbent
Administrative Law Judge

Dated: June 18, 1999
Albany, New York

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