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Ring, John - Order, August 26, 1994

Order, August 26, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
Alleged Violations of the Environmental Conservation Law Article 33 and of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Parts 320 to 329

- by -

JOHN RING, individually and in his capacity as an officer of A-Z Exterminating, Inc.
AND
A-Z EXTERMINATING, INC., a/k/a A-Z Exterminating Co.,
Respondents.

ORDER

Case Nos. 1-4130 and 1-5186

WHEREAS:

  1. Pursuant to a combined notice of pre-hearing conference, notice of hearing and complaint dated April 21, 1994, duly served upon Respondents John Ring and A-Z Exterminating, Inc., a pre-hearing conference was held on July 12, 1994. Department of Environmental Conservation Staff of Region 1 ("Staff") appeared by Louise M. Aja, Assistant Regional Attorney, Region 1. Respondents John Ring and A-Z Exterminating, Inc., did not appear, either personally or by representative; nor was an answer to the charges filed on behalf of either Respondent.
  2. Upon reading and filing the notice of motion dated July 21, 1994, and the July 21, 1994 affirmation of Louise M. Aja, in support of the motion, the combined notice of pre-hearing conference and notice of hearing and the complaint with proof of service upon Respondents, I find that Respondents each failed to file a timely answer as required by Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR"), Part 622.4(a) and each failed to appear at the pre-hearing conference duly scheduled in this case as required by 6 NYCRR 622.8(c) and that Respondents are each in default under the provisions of 6 NYCRR 622.15(a) and each have waived their right to a hearing on this matter.
  3. I further find that Respondents John Ring and A-Z Exterminating, Inc., have committed violations of the Environmental Conservation Law ("ECL") Article 33 and rules promulgated pursuant thereto, by:
    1. engaging in the commercial application of pesticides after March 31, 1992 absent a pesticides business registration, in violation of ECL 33-0907(1) and 33-1301(8)(a), and 6 NYCRR 325.23(a);
    2. failing to provide dwelling occupants with written copies of pesticide information or warning labels contained on pesticide labels of products intended to be used at those locations on two separate occasions, in violation of ECL 33-0905(5)(a) and 6 NYCRR 325.28(d) (two violations);
    3. failing to file an annual report for the 1991 calendar year, in violation of 6 NYCRR 325.25(b);
    4. failing to maintain and make available to the Department, business records for the 1988, 1992 and 1993 calendar years, in violation of 6 NYCRR 325.25(a) (three violations);
    5. possessing a Chlordane pesticide product, Gold Crest C-100, in violation of 6 NYCRR 326.2(c)(4).

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

  1. Respondents John Ring, individually and in his capacity as an officer of A-Z Exterminating, Inc., and A-Z Exterminating, Inc. (a/k/a A-Z Exterminating Co.) are hereby jointly and severally assessed a civil penalty of TWENTY THOUSAND DOLLARS ($20,000) for the violations described above, pursuant to ECL 71-2907. Said penalty is apportioned as requested by Staff in its penalty assessment summary (Attachment "A" [Penalty Assessment] of Staff's Exhibit "A" [Complaint]) (copy attached).
  2. Respondents are hereby directed to immediately cease and desist from any further commercial application of pesticides within the State of New York. Respondents are further directed to immediately, permanently disengage themselves from any business or financial relationship they may have with any business, individual or other entity that is engaged in any aspect of providing the services of commercial or private application of pesticides within the State of New York. Respondents are further directed to immediately, permanently disengage themselves from any interest, office or other capacity which Respondents may have in, or with, any business, individual or other entity that is engaged in any aspect of providing the services of commercial or private application of pesticides within the State of New York.
  3. All communications between Respondents and the Department concerning this Order shall be made to the Director, New York State Department of Environmental Conservation, Region 1 Headquarters, Building 40, S.U.N.Y., Stony Brook, New York 11790.
  4. The provisions, terms, and conditions of this Order shall bind the Respondents, their agents, servants, employees, successors, and assigns, and all persons, firms, and corporations for or on behalf of Respondents.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH,
COMMISSIONER
Albany, New York

Dated: August 26, 1994

To: John Ring, individually and in his capacity
as an officer of A-Z Exterminating, Inc.
2590 South Bismark Avenue
Bellmore, New York 11710

John Ring, individually and in his capacity
as an officer of A-Z Exterminating, Inc.
2540 Wilson Avenue
P.O. Box 57
Bellmore, New York 11710

A-Z Exterminating, Inc., a/k/a
A-Z Exterminating Co.
2590 South Bismark Avenue
Bellmore, New York 11710

A-Z Exterminating, Inc., a/k/a
A-Z Exterminating Co.
2540 Wilson Avenue
P.O. Box 57
Bellmore, New York 11710

Louise M. Aja, Esq.
Assistant Regional Attorney
NYSDEC Region 1
Building 40, SUNY
Stony Brook, New York 11790

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
- of -
Alleged Violations of the Environmental Conservation Law Article 33 and of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Parts 320 to 329,

- by -

JOHN RING, individually and in his capacity as an officer of A-Z Exterminating, Inc.
AND
A-Z EXTERMINATING, INC., a/k/aA-Z Exterminating Co.,
Respondents.

DEFAULT SUMMARY REPORT

Case Nos. 1-4130 and 1-5186

Proceedings

The Region 1 Staff of the New York State Department of Environmental Conservation ("Staff") served a combined Notice of Pre-Hearing Conference, Notice of Hearing and Complaint on Respondent John Ring by personal service upon John Ring at 2590 South Bismark Avenue, Bellmore, New York on June 17, 1994. Staff also served a combined Notice of Pre-Hearing Conference, Notice of Hearing and Complaint on corporate Respondent A-Z Exterminating, Inc. at the same time, by service upon John Ring in his capacity as an officer of the corporation.

Neither Respondent filed an answer or appeared for the pre-hearing conference (scheduled for July 12, 1994 by the combined Notice).

Staff has submitted an affirmation of Louise M. Aja, Assistant Regional Attorney for Region 1, with attached exhibits, including the combined Notice Pre-Hearing Conference and Notice of Hearing; the Complaint; and affidavits of service. These documents, constituting the record of this proceeding, were received in the Office of Hearings on July 27, 1994.

Findings and Conclusion

The affidavits and exhibits submitted by the Department Staff in support of its motion for a default judgment provide proof of proper service of the Notice of Hearing and Complaint, and proof that the Respondents defaulted. Staff also submitted a proposed order. These documents adequately meet the requirements of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 622.15(b) for a motion for a default judgment.

Under 6 NYCRR 622.15, the ALJ's review of a motion for a default judgment is limited to the circumstances of the default itself. The default must be granted if, upon the papers submitted, it is established that a Respondent was properly served and failed to appear or answer. The papers submitted in this proceeding establish that Respondents defaulted.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge

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