Grucci, Sr., Joseph - Ruling, October 29, 1999
Ruling, October 29, 1999
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter
the Request for Reinstatement of a Shellfish Digger's License
pursuant to Environmental Conservation Law (ECL) §71-0927(5)
- by -
Joseph Grucci, Sr.
Ruling on Licensee's Motion for In camera Depositions or Testimony
Shellfish Digger's Permit No. 349
ECL §71-0927(1) provides for the revocation of a shellfish diggers permit for 5 years when the licensee has been convicted two or more times of violating various subsections of ECL Article 13, Title 3 (Marine Resources) within 5 years. ECL §71-0927(5) allows a person who has had his/her license revoked to apply to the Commissioner for reinstatement.
By Notice of Mandatory Revocation dated October 5, 1998 (the Notice), the Department revoked Mr. Grucci's Shellfish Digger's License (License No. 349) pursuant to ECL §71-0927(1). According to the Notice, Mr. Grucci (the Licensee) was convicted in the First District Court (Suffolk County) on April 3, 1996 of violating ECL §13-0309(11)(b), and on January 27, 1997 of violating ECL §13-0325(1). ECL §13-0309(11)(b) specifies the features of the rakes or tongs used to harvest shellfish. ECL §13-0325(1) prohibits the taking of hard clams that are less than one inch in thickness, except for transplanting purposes.
By letter dated August 6, 1999, Mr. Grucci requested a reinstatement hearing, which is presently scheduled for November 15, 1999. There are no regulations outlining the procedures for reinstatement. As guidance, the hearing procedures set forth in 6 NYCRR Part 624 (Permit Hearing Procedures) are being used.
In a motion dated October 20, 1999, the Licensee requests permission to take in camera depositions or testimony of witnesses. The Licensee states that he has identified other shellfishermen who would testify that the Department's Environmental Conservation Officers (ECOs) have promised them that if they pleaded guilty to violations of the ECL, their digger's permits would not be revoked. An additional reason for the testimony is to demonstrate the Licensee's assertion that the ECOs have a practice of coercing shellfishermen into pleading to lesser violations, with comparatively lower fines, as opposed to hiring legal counsel to challenge the initial allegations at hearing.
According to the Licensee, the testimony is relevant to his reinstatement because it would establish the general practices used by the ECOs in issuing tickets and in resolving them in court. In addition, the Licensee asserts that the testimony of the other shellfishermen will support his mitigation claims. The Licensee explains that the testimony must be conducted in camera because the shellfishermen who want to testify are fearful of retribution from the ECOs, in particular, and the Department, in general, if the testimony ultimately demonstrates the Licensee's assertions.
To support the request, the Licensee contends that the ALJ has discretion, pursuant to §624.7(c)(2), §624.8(a), and §624.8(b)(vii) to allow other discovery devises in addition to those expressly authorized in §624.7(b) for the purpose of conducting a fair and efficient hearing. In addition, the Licensee identified case law(1) that describes instances where the courts have authorized in camera testimony. Also, the Licensee argues that the DEC Office of Hearings and Mediation Services has conducts in camera reviews of documents and testimony.(2)
The Department filed an affirmation opposing the Licensee's motion dated October 27, 1999. The Department characterizes the Licensee's motion as an inappropriate attempt to refute the underlying convictions, which is not the purpose of the hearing. Rather, the hearing, according to the Department, is to provide the Licensee with an opportunity to present evidence of hardship, as well as other related circumstances that have occurred since the revocation of the Licensee's permit on October 5, 1998 that would warrant reinstatement.
The Department argues that the other shellfishermen's testimony is not relevant. Accordingly, the Department wants me to preclude the testimony of the other shellfishermen. In addition, the Department asserts there is no applicable case law to support the Licensee's request for in camera depositions or testimony within the context of an administrative hearing.
The issue raised by the Licensee's motion relates to the scope of the reinstatement hearing. In my correspondence to the parties dated October 8, 1999, I outlined what the scope of the reinstatement hearing would be. I stated that:
The licensee will not be permitted to challenge the disposition of the matters adjudged on April 3, 1996 and January 22, 1997. The licensee, however, may present evidence about mitigating circumstances that existed on the dates that the violations established in the Court records occurred, or which may have occurred since service of the first Certificate Concerning Violation of Law [EC 097659-2, dated December 29, 1995].
Issues about the promises that the Department's ECOs have made to other shellfishermen, and whether the ECOs generally try to coerce shellfishermen into pleading to lesser violations, are not relevant to this matter. Consequently, the testimony proffered by the Licensee to demonstrate these assertions is beyond the scope of the hearing, and I will preclude it. Accordingly, I deny the motion for in camera depositions or testimony from other shellfishermen.
Daniel P. O'Connell
Administrative Law Judge
Albany, New York
Dated: October 29, 1999
To: Attached Service List dated October 29, 1999
1 People v. Castillo, 80 NY2d 578, 582 (1992); People v. Maxwell, 159 Misc2d 28, 603 NYS2d 268 (Supreme Court Cattaraugus Co. 1993).
2 Matter of Gernatt Asphalt Products, Inc., DEC Application No. 9-1462-00019/00001-1, Commissioner's Second Interim Decision dated January 25, 1995, and Interim Decision dated April 21, 1994; PGS Carting Company, Inc. et al., DEC Case No. 1-1603, Order dated
November 21, 1994; MB Recycling Unlimited, Inc., DEC Case No. R1-5206-92-11, Order dated August 2, 1993; James R. Lee, Allegro Oil and Gas, Inc., et al., Second Interim Decision and Order dated January 30, 1991.