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Mills, Keith - Order, March 10, 1998

Order, March 10, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 11 of the Environmental Conservation Law, of the State of New York and 6 NYCRR Part 183

by

KEITH MILLS
Respondent

ORDER

File No. R4-2020-98-01

WHEREAS:

PROCEEDINGS

  1. Pursuant to a January 28, 1998 Notice of Motion for Order Without Hearing, Administrative Law Judge ("ALJ") John H. Owen prepared a Hearing Report.
  2. Upon review of ALJ Owen's Hearing Report (copy attached), I concur in its Findings, Conclusions and Recommendations.

NOW THEREFORE, having considered this matter and being duly advised, it is ORDERED that:

  1. Respondent Keith Mills be and hereby is terminated as a License Issuing Officer ("LIO"), License Number 0177.
  2. Respondent Keith Mills, having violated 6 NYCRR Part 183, ECL 11-0713 and Order on Consent R4-1968-97-094, be and hereby is assessed a civil penalty in the amount of three hundred ($300) dollars.
  3. Respondent Keith Mills, within 14 days of receipt of a conformed copy of this Order, shall submit reports required by ECL 11-0713 for the months of October, November and December for license year 1997-98 and any following months and shall return all unused stamps.
  4. Respondent Keith Mills, within 14 days of receipt of a final bill from the Department Staff, shall pay the full amount of that bill.
  5. All communication between the Respondent and the Department in this matter shall be made to the Department's Region 4 Director, 1150 North Westcott Road, Schenectady, New York 12306.
  6. The provisions, terms and conditions of this 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: John P. Cahill, Commissioner

Albany, New York
March 10, 1998

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the alleged violations of Article 11 of the Environmental Conservation Law, of the State of New York and 6 NYCRR Part 183 by

KEITH MILLS
Respondent

File No. R4-2020-98-01

HEARING REPORT

- by -

/s/
John H. Owen
Administrative Law Judge

Proceedings

The Respondent Keith Mills is a License Issuing Officer ("LIO") under Environmental Conservation Law ("ECL") 11-0713 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 183 operating out of Keith's Bait and Tackle Shop at 101 Clinton Avenue, Albany, New York. The Respondent was appointed by the then Commissioner of the New York State Department of Environmental Conservation ("Department"), effective April 11, 1990, and authorized to issue hunting, fishing and trapping licenses on behalf of the Department.

Pursuant to 6 NYCRR 622.12, Region 4 Assistant Regional Attorney Ann Lapinski, Esq. made a motion for order without hearing ("motion") under date of January 28, 1998. The motion was submitted along with proof that Keith Mills (the "Respondent") was properly served with the motion (by Certified Mail - Return Receipt Requested ) and received it on January 30, 1998. Under 6 NYCRR 622.12(b) and (c) the Respondent had 20 days to file and serve a response to the motion, that is until February 19, 1998. (See also 6 NYCRR 622.3(3)). No response has been received from or on behalf of the Respondent on or before February 19, 1998 or since that time.

By it motion the Staff seeks an order of the Commissioner: finding that no hearing is required because there are no material facts in dispute, terminating Respondent as a Licensing Issuing Officer, finding that Respondent has violated 6 NYCRR Part 183, ECL 11-0713 and an Order on Consent (R4-1968-97-04), finding that the Staff is entitled to judgment and to the relief requested as a matter of law (6 NYCRR 622.12(c)), ordering Respondent to pay a civil penalty of three hundred ($300) dollars, ordering that, within 14 days of the effective date of the order, Respondent submit reports required by ECL 11-0713 for the months of October, November and December for license year 1997-98 and any following months, ordering Respondent to return all unused stamps, and order that, within 14 days of receipt of a final bill from the Staff, Respondent pay the full amount of the bill.

Included in the motion papers, there was an affidavit of Carol Smith, Principal Account Clerk in the Division of Management and Budget of the Department, together with exhibits.

These documents more than amply support the allegations in Ms. Smith's affidavit and, in turn, more than amply support the following findings of fact.

Finding of Facts

  1. The Department appointed Respondent Keith Mills as a License Issuing Officer ("LIO") effective April 11, 1990.
  2. Respondent operates a business known as Keith's Bait and Tackle Shop located at 101 Clinton Avenue, Albany, New York.
  3. On April 28, 1997, Respondent entered into an Order on Consent (R4-1968-97-04) with the Department with respect to various violations of Environmental Conservation Law 11-0713 and 11-0717 and 6 NYCRR Part 183.
  4. ECL 11-0713(4) provides that an LIO shall file reports and remit license fees to the appropriate regional environmental conservation officers as required by ECL 11-0717(1).
  5. ECL 11-0717 requires that license fees and reports be submitted to the Department on the second Tuesday of each month.
  6. 6 NYCRR 183.5 requires a LIO to comply with Article 11 of the ECL and the Department's instructions concerning reporting and remittance of fees.
  7. Each LIO is issued a Sporting License Handbook and one of these handbooks had been distributed to Respondent. Pages 49 through 55 explain the reporting requirements of a LIO including the requirement for submission of a monthly report for each month.
  8. Part I.B. of the Order on Consent states that:

    "In the event that Respondent fails to submit any monthly license sales report, record or remittance to the Department in a timely manner, the Department may immediately terminate Respondent's appointment as an LIO."

  9. Respondent has not submitted monthly sales license reports for the months of October, November and December for License Year 1997-98.
  10. Part I.B. of the Order on Consent also states that in the event Respondent fails to submit any monthly license sales report, that Respondent shall pay a penalty of $100 for each monthly sales report which is not submitted in a timely manner. No notice to Respondent is required with respect to this penalty.

Conclusions of Law

  1. The Department obtained personal jurisdiction over Respondent Keith Mills when on January 30, 1998 he received the motion for order without hearing.
  2. Respondent was required to serve and file a response to the motion on or before February 19, 1998.
  3. Respondent has not responded to the motion to date.
  4. Respondent has waived his right to a hearing.
  5. There are no material facts in dispute and there are no issues of fact requiring an adjudicatory hearing.
  6. Respondent has violated 6 NYCRR Part 183, ECL 11-0713 and the Order on Consent (R4-1968-97-04).
  7. Respondent is liable for payment of a civil penalty in the amount of three hundred ($300) dollars.

Recommendations

  1. Respondent should be assessed a civil penalty of three hundred ($300) dollars.
  2. Respondent's appointment as a License Issuing Officer should be terminated.
  3. Within 14 days of the effective date of the Commissioner's order, Respondent should be required to submit reports required by ECL 11-0713 for the months of October, November and December of license year 1997-98 and any following months, and to return all unused stamps.
  4. Within 14 days of receipt of a final bill from Department Staff, Respondent should be required to pay the full amount of the bill.
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