D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Safe and Sure Products - Order, March 17, 1999

Order, March 17, 1999

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

- by -

SAFE & SURE PRODUCTS, INC., and LESTER J. WORKMAN, individually and as President of Safe & Sure Products, Inc.

Respondents

ORDER

DEC File No. R1-5829-96-05

WHEREAS:

  1. Pursuant to a Notice of Hearing and Complaint dated August 31, 1998 and a subsequent Motion for Order Without Hearing dated December 14, 1998 and served on Safe & Sure Products, Inc., and Lester J. Workman, the matter was brought before Kevin J. Casutto, Administrative Law Judge, to decide the motion. The Department was represented by Louise M. Aja, Assistant Regional Attorney and Department Staff who filed affidavits. Respondents replied to the motion by letter dated January 19, 1999.
  2. Upon review of ALJ Casutto's ruling on the motion, a copy of which is attached, I concur with its Findings of Fact, Conclusions and Recommendations. The record in this case establishes that Respondent Safe & Sure Products, Inc., offered for sale, sold, and distributed California Special Dip Concentrate in New York on two occasions in 1995. Said product is a pesticide and was not registered in New York as is required by ECL §33-0701 nor was the pesticide product registered with USEPA as required by federal statute.

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

  1. Respondent Safe & Sure Products, Inc., is assessed a civil penalty in the amount of Forty Thousand Dollars ($40,000), which shall be due and payable to the Department within 30 days of the date of service of this Order upon the Respondents.
  2. Immediately upon service of this Order upon Respondent Safe & Sure Products, Inc., the Respondent shall cease the offer for sale, distribution, use or transportation within the State of New York, the pesticide California Special Dip Concentrate until such pesticide is duly registered in New York and with USEPA.
  3. The charges against Respondent Lester J. Workman, individually and as president of the corporate Respondent, are dismissed.
  4. All communications between Respondent and the Department concerning this Order shall be made to the Regional Director, NYS Department of Environmental Conservation Region 1, SUNY Campus, Building 40, Stony Brook, New York 11790-2356.
  5. The provisions, terms and conditions of the Order shall bind Respondent, all agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondent.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: John P. Cahill,
Commissioner
Albany, New York

Dated: March 17, 1999

To: Mr. Lester J. Workman
P.O. Box 20009
Sarasota, FL 34276

Mr. Lester J. Workman
4239 Derek Way
Sarasota, FL 34233

Mr. Lester J. Workman, President
Safe & Sure Products, Inc.
P.O. Box 20009
Sarasota, FL 34276

Mr. Lester J. Workman, President
Safe & Sure Products, Inc.
4239 Derek Way
Sarasota, FL 34233

Safe & Sure Products, Inc.
P.O. Box 20009
Sarasota, FL 34276

Safe & Sure Products, Inc.
4239 Derek Way
Sarasota, FL 34233

Louise M. Aja, Esq.
Assistant Regional Attorney
NYSDEC - Region 1
Building 40, SUNY
Stony Brook, NY 11790-2356

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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

- by -

SAFE & SURE PRODUCTS, INC., and LESTER J. WORKMAN, individually and as President of Safe & Sure Products, Inc.

Respondents

RULING ON MOTION FOR ORDER WITHOUT HEARING and HEARING REPORT

[R1-5829-96-05]

SUMMARY OF RULING

The ALJ concluded that California Special Dip Concentrate, a product manufactured by the Respondent, Safe & Sure, Inc., is a pesticide product requiring New York pesticide registration. The Respondent Safe & Sure offered for sale, sold and distributed a total of sixteen containers of this product in New York on two occasions in 1995, although the product was not a registered pesticide in New York or with the U.S. EPA, as required by applicable law. The ALJ recommended that the Commissioner find the corporate Respondent, Safe & Sure, Inc., liable for sixteen violations of ECL §§33-0701 and 33-1301 and impose a monetary penalty of $40,000.00 upon the Respondent. Regarding the individual liability of the Respondent Lester J. Workman, the ALJ concluded that the record fails to establish such liability and recommended dismissal of the charges against the Respondent Lester J. Workman.

PROCEEDINGS

Introduction

On August 31, 1998, the New York State Department of Environmental Conservation ("the Department" or "NYSDEC") Region 1 Staff ("Staff") served Safe & Sure Products, Inc., ("Safe & Sure") and Lester J. Workman, individually and as president of Safe & Sure Products, Inc., ("Workman") (the "Respondents"), by certified mail, with a Notice of Hearing and Complaint. Subsequently, Staff served a Notice of Motion for Order Without Hearing dated December 14, 1998 and supporting papers upon the Respondents regarding Respondents' alleged use, distribution, sale or offer for sale within the State of New York of unregistered pesticide products. Staff seek monetary penalties of $20,000.00 for Respondents' violations of ECL Article 33 and 6 NYCRR Part 325 and an order that the Respondents cease and desist from any future violations of the ECL.

Motion for Order Without Hearing

Staff's Notice of Motion for Order Without Hearing includes an affirmation of Louise M. Aja, Assistant Regional Attorney, NYSDEC Region 1 and affidavits of Paul Clemente and Vincent Palmer (dated December 14, 1998), and the affidavit of Maureen Serafini (dated December 3, 1998). A memorandum of law also was filed with Staff's motion.

Exhibits attached to the motion papers include proof of service of the Notice of Hearing and Complaint upon the Respondents, proof of service of the Motion for Order Without Hearing upon the Respondents, a letter dated September 23, 1998 (Workman to Aja), copies of the label of California Special Dip Concentrate, two invoices from Respondent Safe & Sure to Ultrapet, Inc. (a mobile dog and cat grooming business located on Long Island, New York), a Notice of Violation (dated April 30, 1996), a letter dated June 7, 1996 (Palmer to Cool/USEPA) and a letter dated December 11, 1997 (McFarland/USEPA to Palmer).

The Respondents are located in the State of Florida. They are unrepresented by counsel and failed to appear at a duly noticed calendar call and pre-hearing conference on September 24, 1998. However, the Respondent Workman, for the Respondents, sent the September 23, 1998 letter to Assistant Regional Attorney Aja. In that letter, Respondent Workman acknowledged receipt of the Notice of Hearing and Complaint. He stated the Respondents would not be able to appear due to their Florida location and Respondent Workman's advanced age and poor health. The Respondent Workman concluded the letter with an assertion that the product at issue, California Special Dip Concentrate, is not a pesticide. Although the failure to appear on September 24, 1998 is a sufficient basis for a default motion, Staff have filed the present motion for order without hearing rather than a motion for default. See, 6 NYCRR §§622.12 and 622.15).

Department Staff's Position

Staff allege that Respondents produce, manufacture, distribute and sell California Special Dip Concentrate, a pesticide; and further, that this pesticide product is not registered with the U.S. Environmental Protection Agency (the "EPA") or the State of New York, as required by federal and New York law, respectively. Staff allege that the Respondents have offered for sale, sold and distributed this product within New York on or about May 9, 1995 (eight one-gallon containers) and on or about September 5, 1995 (eight one-gallon containers), in violation of ECL §§33-0701 and 33-1301(1)(a).

Staff seek an order imposing a total penalty of $20,000.00, upon the Respondents, and requiring Respondents to cease and desist from any future violations of the ECL.

Respondents' Position

The Respondents replied to the Motion for Order Without Hearing, by letter dated January 19, 1999 (Workman to ALJ), received by this Office on January 20, 1999. The Respondents provided no affidavits in support of their defense, but did include documentation regarding a 1993 Florida Notice of Violation regarding the California Special Dip Concentrate. The Respondents concede that they shipped the California Special Dip Concentrate product to Ultrapet, Inc., in New York in May 1995 and September 1995 as evidenced by the two Ultrapet invoices. However, the Respondents assert that the product label for California Special Dip Concentrate makes no pesticidal claim, and therefore, the product is not a pesticide product. In support of their position, the Respondents assert that a Tampa, Florida inspection (conducted by State of Florida Department of Agriculture and Consumer Markets) initially resulted in a stop-sale order for California Special Dip Concentrate on September 18, 1993. But Respondents assert, without verification, that the stop-sale order was withdrawn one week later.

FINDINGS OF FACT

  1. At all times referred to herein, the Respondent Safe & Sure Products, Inc., was a corporation maintaining offices in the State of Florida with a mailing address of P.O. Box 20009, Sarasota, Florida, 34276.
  2. At all times referred to herein, the Respondent Lester J. Workman was vice-president of the corporate Respondent Safe & Sure.
  3. Respondents produce, manufacture, distribute and sell California Special Dip Concentrate (the "product" or the "Dip")a product that is not registered as a pesticide with the U.S. Environmental Protection Agency or with the State of New York.
  4. In March 1996, Pesticide Control Specialist II Paul R. Clemente investigated a complaint received by the Department regarding the commercial application of pesticides by a mobile dog and cat grooming facility, Ultrapet Inc. ("Ultrapet"). Ultrapet is located at 575 Route 25A, Mount Sinai, Suffolk County, New York and conducts business in Suffolk County, New York.
  5. On March 20, 1996, Specialist Clemente telephoned Ultrapet. The woman who answered the telephone stated that flea and tick treatments are performed by Ultrapet.
  6. On March 28, 1996, Specialist Clemente conducted an inspection of Ultrapet, Inc., in Mount Sinai, New York. The inspection revealed that an Ultrapet employee (a "Groomer") performs flea and tick treatments on pets by pouring a dilute solution of the Respondents' product, California Special Dip Concentrate,over the animals to the point of saturation. Ultrapet conducts business in Suffolk County, New York.
  7. During this inspection, the Ultrapet Groomer provided Specialist Clemente with an empty one gallon container of California Special Dip Concentrate, from which Clemente obtained a copy of the product label. The Dip product label does not list an EPA pesticide product registration number.
  8. The product label identifies Safe & Sure Products, Inc., Sarasota, Florida as the manufacturer of California Special Dip Concentrate.
  9. The Dip product label identifies the product's active ingredients as docusate sodium at 35.0% and "hendecenoic acid at 5.6%. The inert ingredients are the remaining 59.4% of the ingredients.
  10. Hendecenoic acid is an active ingredient in registered pesticide products, including DeFlea Shampoo Concentrate (EPA # 45729-2), produced, manufactured, distributed and sold by the Respondent Safe & Sure Products, Inc.
  11. Respondent Safe & Sure's DeFlea Shampoo Concentrate is identical in composition to the California Special Dip Concentrate.
  12. After the Ultrapet inspection, Specialist Clemente checked the Department's pesticide product computer database (commonly referred to as "Lookup") to determine whether the Dip was a registered pesticide in New York state. The Lookup database includes a list of all pesticide products registered in the State of New York.
  13. Respondent Safe & Sure's California Special Dip Concentrate was not listed in the Lookup database. Further, Specialist Clemente verified this information by telephoning the Department's statewide Pesticide Registration Section, Bureau of Pesticides located in Albany, New York. The Staff of the Pesticide Registration Section confirmed that California Special Dip Concentrate was not registered as a pesticide with either the EPA or New York State.
  14. On April 10, 1996, Specialist Clemente telephoned the Respondent Safe & Sure. An employee that answered the telephone call stated that she could not say California Special Dip Concentrate killed fleas or ticks because it was not yet registered with the EPA. However, the employee told Specialist Clemente that California Special Dip Concentrate was the exact same formula and product as Safe & Sure's De-Flea Shampoo Concentrate, (EPA # 45729-2), but with a different label.
  15. The employee further explained that DeFlea Shampoo Concentrate and California Special Dip Concentrate are the same product with different labels, due to EPA pesticide product registration laws and the expense associated with the pesticide registration process. The employee further explained that Respondent Safe & Sure's De-Flea Shampoo Concentrate product is considerably more expensive than the Respondent's California Special Dip Concentrate because of the expenses associated with registering the De-Flea Shampoo Concentrate product as a pesticide product with the EPA.
  16. On April 10, 1996, Specialist Clemente contacted Ultrapet and requested that they send him copies of receipts of their purchases of California Special Dip Concentrate; Ultrapet agreed to do so.
  17. On May 13, 1996, Specialist Clemente received copies of two Ultrapet invoices. The invoices show that on each occasion the Respondent Safe & Sure shipped the Dip product to Ultrapet's office located at 575 Route 25A, Mount Sinai, Suffolk County, New York.
  18. The first invoice shows that on or about May 9, 1995, Respondent Safe & Sure Products, Inc., sold and distributed eight (8) one-gallon containers of California Special Dip Concentrate to Ultrapet, Inc., Mount Sinai, New York.
  19. The second invoice shows that on or about September 5, 1995, Respondent Safe & Sure Products, Inc., sold and distributed eight (8) more one-gallon containers of California Special Dip Concentrate to Ultrapet, Inc., Mount Sinai, New York.
  20. On April 30, 1996, Specialist Clemente sent Respondent Safe & Sure a Notice of Violation informing the Respondent that it was in violation of New York State's pesticide laws; and further, advising the Respondent to cease and desist from further violations of any provision of ECL Article 33 and any rules and regulations promulgated pursuant thereto.
  21. On June 7, 1996, the Department's Region One Supervising Pesticide Control Inspector I, Vincent A. Palmer, sent a letter to the EPA inquiring whether they concurred with the Department Staff decision that California Special Dip Concentrate is a pesticide.
  22. By letter dated December 11, 1997 the U.S. EPA responded that California Special Dip Concentrate is a pesticide and it must be registered with the EPA as a pesticide product to be sold in the United States.

CONCLUSIONS OF LAW

  1. ECL §33-0701 and §33-1301(l)(a) require the registration every two years of any pesticide which is used, distributed, sold or offered for sale within this state or delivered for transportation or transported in intrastate commerce or between points within this state through any point outside the State.
  2. The Respondent Safe & Sure's California Special Dip Concentrate is a pesticide product.
  3. California Special Dip Concentrate must be registered with the EPA as a pesticide product to be sold in the United States.
  4. California Special Dip Concentrate must be registered as a pesticide product with New York State to be offered for sale, sold or distributed in New York. The Dip product label makes pesticidal claims; the Respondent Safe & Sure represented in its telephone sales presentation that California Special Dip Concentrate is intended to be used for pesticidal purposes; the active ingredient in California Special Dip Concentrate (hendecenoic acid) is an active ingredient used to manufacture certain pesticide products; Respondent Safe & Sure's DeFlea Shampoo Concentrate, a pesticide product registered with the U.S. EPA (EPA #45729-2), is identical in composition to California Special Dip Concentrate; and California Special Dip Concentrate does not meet the criteria of a product that is not a pesticide because its active ingredient is used to manufacture pesticide products and the Dip is used against pests (fleas and ticks).
  5. California Special Dip Concentrate was not a registered pesticide in New York State (nor is it a federally registered pesticide) in 1995, and has not subsequently been registered in New York.
  6. Since at least May, 1995, the Respondent Safe & Sure has produced, manufactured and offered for sale nationally, California Special Dip Concentrate and DeFlea Shampoo Concentrate and continues to do so.
  7. The Respondent Safe & Sure offered for sale, sold and distributed California Special Dip Concentrate to Ultrapet, Inc., 575 Route 25A, Mount Sinai, New York on two occasions in 1995.
  8. On or about May 9, 1995 Respondent Safe & Sure offered for sale, sold and distributed to Ultrapet, 575 Route 25A, Mount Sinai, New York, eight containers of California Special Dip Concentrate, a pesticide product that is not registered with the State of New York as required by ECL §33-0701.
  9. On or about September 5, 1995 Respondent Safe & Sure offered for sale, sold and distributed to Ultrapet, 575 Route 25A, Mount Sinai, New York, eight containers of California Special Dip Concentrate, a pesticide product that is not registered with the State of New York as required by ECL §33-0701.
  10. The record does not establish by a preponderance of the evidence that the Respondent Lester J. Workman had managerial responsibility for the corporate Respondent Safe & Sure regarding its offer for sale, sale or distribution of California Special Dip Concentrate in New York State.

DISCUSSION

I. Standard of Review

Pursuant to 6 NYCRR §622.12(d), the Commissioner should grant a Motion for Order Without Hearing if, upon all the papers and proof filed, the cause of action (or defense) is established sufficiently to warrant granting summary judgment in favor of any party under the Civil Practice Law and Rules ("CPLR"). Pursuant to 6 NYCRR §622.12(e), the Commissioner should deny the motion for summary order if the Respondent shows any issues of fact sufficient to require a hearing. However, pursuant to 6 NYCRR §622.12(f), the existence of a triable issue of fact that is associated with relief, such as the amount of civil penalties, does not prevent the granting of the motion.

In order to succeed on its motion, with respect to each allegation Staff must show on their papers alone, without the aid of oral testimony, that there is no material issue of fact outstanding and that the facts mandate judgment in Staff's favor. On a motion for summary judgment the court will accept as true, the opposing party's evidence and any evidence of the movant that favors the opposing party. Weiss v Garfield, 21 AD2d 156, 249 NYS2d 458 (3rd Dept., 1964). See, generally, CPLR §3212, and McKinney's Consolidated Laws of New York, CPLR §3212, Practice Commentary C3212:16 and C3212:17 (Siegel), (1992).

II. Personal Liability of Respondent Lester J. Workman

It is well-established law that a corporate officer may be held criminally liable for violations of statutes enacted to protect public health, safety and welfare, where that officer had the authority and responsibility to prevent the violation. Further, it is well established that the rationale for holding corporate officers responsible is more persuasive where only civil liability is involved. In cases where the statutory violation does not require any showing of wrong doing, liability attaches to managerial officers of a corporation where it is shown that, by virtue of the relationship the officer bore to the corporation, the officer had the power to prevent the violation. United States v Hodges X-Ray, Inc., 759 F.2d 557 (CA 6th Cir., 1985)]; United States v Dotterweich, 64 SCt. 134 (1943); In the Matter of Galfunt and Hudson Chromium Co. Inc., Commissioner's Order, May 5, 1993,(citing, United States v Park, 95 SCt. 1903 (1975); In the Matter of Jackson's Marina, Inc., Gordon Jackson, James H. Rambo, Inc. and Thomas Samuels, Commissioner's Order, November 6, 1991; compare, In the Matter of Mattiace, Commissioner's Order, May 23, 1988 [no individual liability imposed, because no finding that either individual committed any act of omission or commission to the violations, and no finding that either individual had managerial responsibility for the operations where the violations occurred].

In the present matter, Staff's few references to Respondent Workman are contained in the Aja Affirmation and the Memorandum of Law. These references mention Mr. Workman in discussing the merits of his argument that the Dip is not a pesticide. In his letter of January 19, 1999, Mr. Workman identifies himself as vice-president of the Respondent Safe & Sure. The Clemente affidavit describes a telephone sales presentation made by a female employee of the corporate Respondent. Staff do not even allege that Respondent Workman was the manager or supervisor of this employee. In sum, this record is insufficient to support a conclusion that Respondent Workman had managerial responsibility for the corporate Respondent Safe & Sure regarding the offer for sale, sale or distribution of California Special Dip Concentrate in New York State.

III. Alleged Violations of ECL §§33-0701 and 33-1301

Staff allege that Respondents committed sixteen violations of ECL §§33-0701 and 33-1301, in that Respondents offered for sale, sold and distributed sixteen containers of California Special Dip Concentrate, a pesticide product that is not registered with the State of New York (or U.S. EPA). A pesticide is defined as any substance or mixture or substances intended for preventing, destroying, repelling, or mitigating any pest. ECL §33-0101(35)(a). Insects, including fleas and ticks, are within the definition of "pest". ECL §33-0101(34)(l).

The relevant facts are not substantially in contention. As noted above, the Respondents concede that they offered for sale, sold and distributed eight containers of California Special Dip Concentrate product to Ultrapet, Inc, a business located in Mount Sinai, Suffolk County, New York, in May, 1995, and that they offered for sale, sold and distributed eight additional containers of the Dip to Ultrapet in September 1995.

The Respondents contend that the Dip product label makes no pesticidal claim, and therefore the product is not a pesticide product. However, Staff have shown that the Dip product label does make pesticidal claims. Specifically, the Dip product label states that it is "[f]or use as a spray for carpets [sic], runs, etc." Staff has reasonably concluded that the purpose of such use is for control of fleas and ticks. Further, the Respondent Safe & Sure's telephone sales presentation to Specialist Clemente shows that the Respondent intended California Special Dip Concentrate to be used for a pesticidal purpose. Staff have shown that the active ingredient in California Special Dip Concentrate, hendecenoic acid, is an active ingredient that can be used to manufacture a pesticide. Most telling is that the Respondent Safe & Sure manufactures and sells an identical product, the DeFlea Shampoo Concentrate, which is a registered pesticide product (EPA #45729-2).

The Respondents have offered no reasonable alternative explanation for the labeled use of the Dip (i.e., use as a spray for carpets, runs, etc.) Instead, the Respondents claim that the Dip is an extremely low surface tension penetrating lubricant shampoo that will dislodge extremely small particles not cleaned by other shampoos. In support of this claim, the Respondents attached three exhibits of cloth swatches, one oil/carbon impregnated, the second, a similar sample washed with laundry detergent and the third sample, washed with the Dip. This offer is unsupported by any scientific or technical data and is a use not described on the Dip product label. Therefore, this suggested alternative use of the product must be rejected.

The Respondents have not offered any reasonable explanation why they offer two identical products, the Dip and the DeFlea Shampoo Concentrate, one of which is registered as a pesticide and one that is not. In sum, California Special Dip Concentrate is a substance that is both intended to prevent, destroy, repel and mitigate fleas and ticks (pests) and the Dip is actually used for that purpose.

Moreover, at Staff's request, the U.S. EPA reviewed the product label to determine whether the Dip is a product requiring federal pesticide product registration. By letter dated December 11, 1997, the U.S. EPA, Insecticide Branch, Registration Division, stated that the Respondent's Dip is a pesticide regulated by the Federal Insecticide, Fungicide and Rodenticide Act and requires federal pesticide product registration for sale in the United States.

Lastly, the Respondents make reference to a purported review of the Dip product by State of Florida regulators. These contentions are unsupported by any affidavits, and in any event are irrelevant. The issue is whether this product is a pesticide under New York law, not the law of Florida or any other state.

In conclusion, the Respondents' contention that the Dip is not a pesticide product must be rejected. The Department Staff correctly determined that Respondent Safe & Sure's California Special Dip Concentrate product is a pesticide.

IV. Penalties

ECL §71-2907(l) governs the imposition of civil and administrative penalties for violations of ECL Article 33. Pursuant to ECL §71-2907(l), the maximum penalty for a first violation is $5,000.00 and $10,000.00 for subsequent offenses. ECL §71-2907(4) states that when a violation consists of the sale, or the offering or exposing for sale or exchange of any prohibited article or substance, the sale of each one of several packages shall constitute a separate violation, and each day on which any such article or substance is offered or exposed for sale or exchange shall constitute a separate violation.

Factors articulated in the Commissioner's Civil Penalty Policy support imposition of a substantial penalty assessment in this case(1). Civil Penalty Policy, Enforcement Directives, No. II, issued 6/20/90. Undertaking any action which requires a DEC permit, without first obtaining that permit, is always a serious matter and is much more serious than a technical or paperwork violation. Penalty Policy at 8. Parties undertaking activities regulated by the Department have a duty to familiarize themselves with the applicable legal requirements; ignorance of the law or rules is not a mitigating factor. Penalty Policy at 9. "Penalties should persuade the violator to take precautions against falling into non-compliance again, as well as persuade others not to violate the law. Successful deterrence provides the best protection for the environment." Penalty Policy at 3.

On April 30, 1996, the Respondent Safe & Sure Products, Inc., was served with a Notice of Violation informing the Respondent that it was in violation of New York state's pesticide laws. The Notice of Violation advised them to cease further violations of any provision of ECL and regulations promulgated pursuant thereto. Nonetheless, the Respondent Safe & Sure has failed to register its Dip product. The Respondent continues to offer the Dip for sale in New York through its toll-free telephone number, even though California Special Dip Concentrate is not registered as a pesticide with either the EPA or New York State. In sum, Respondent Safe & Sure's response to the Notice of Violation and alleged violations has been to knowingly and intentionally disregard both federal and New York State laws and continue the controverted conduct.

Regarding monetary penalty assessment, Staff calculate a maximum monetary penalty of $40,000.00, for offer for sale, sale and distribution of eight containers at $5,000.00 penalty per container. Staff's Memorandum of Law at 10. However, the uncontroverted evidence shows that the Respondents offered for sale, sold and distributed 16 containers of Dip, eight containers on or about May 9, 1995 and eight additional containers on or about September 5, 1995, a total of 16 containers. Therefore, the maximum monetary penalty in this case is $80,000.00(2).

Based upon eight containers/violations, Staff seek a per-container monetary penalty of $2,500.00, a total penalty of $20,000.00 - - half the statutory maximum monetary penalty provided for in ECL §71-2907(l). Applying Staff's per-container monetary penalty of $2,500.00 results in a total monetary penalty of $40,000.00. This monetary penalty is appropriate under the circumstances described herein.

RECOMMENDATIONS

Upon consideration of the foregoing, and upon a complete review of the entire record of this proceeding, it is recommended that the Commissioner find Respondent Safe & Sure, Inc., liable for sixteen violations of ECL §§33-0701 and 33-1301 and impose upon the corporate Respondent a monetary penalty as follows:

  1. That the Respondent Safe & Sure, Inc., is liable for sixteen violations of ECL §§33-0701 and 33-1301; and
  2. That the Respondent Safe & Sure, Inc., be assessed a civil monetary penalty in the amount of Forty Thousand ($40,000) Dollars; and
  3. That the Respondent Safe & Sure must immediately cease the offer for sale, sale, distribution, use or transportation within the State of New York, of any and all pesticide products, including California Special Dip Concentrate, that are not registered with the State of New York in accordance with the requirements of ECL §33-0701; and
  4. That the Respondent cease and desist from any further and future violations and remain in strict compliance with the provisions of the New York Environmental Conservation Law and rules and regulations issued pursuant thereto.
  5. That the charges against the Respondent Lester J. Workman, individually and as president of the corporate Respondent, should be dismissed.

_____________/s/_____________
Kevin J. Casutto
Administrative Law Judge
Albany, New York

1 The Respondents were advised by the Notice of Hearing that the Department maintains certain written penalty guidance memoranda and that relevant memoranda will be provided upon request to Department Staff.

2 16 containers/violations x $5,000.00 per container/violation.

  • PDF Help
  • For help with PDFs on this page, please call 518-402-9003.
  • Contact for this Page
  • Office of Hearings and Mediation Services
    NYS DEC
    625 Broadway, 1st Floor
    Albany, New York 12233-1550
    518-402-9003
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions