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Shivers, Patrick - Decision, June 10, 2003

Decision, June 10, 2003

STATE OF NEW YORK
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
625 Broadway
Albany, New York 12233-1550

In the Matter of Application for Reinstatement of Revoked Shellfish Digger's License
Pursuant to Environmental Conservation Law Section 71-0927, by

PATRICK SHIVERS

Applicant

DEC Shellfish License No. 16690

DECISION OF THE ASSISTANT COMMISSIONER

June 10, 2003
DECISION OF THE ASSISTANT COMMISSIONER

Pursuant to ECL 71-0927(1), a person convicted twice within five years of violating ECL 13-0325, shall have his license revoked and shall not be re-licensed for a period of at least five years thereafter. Moreover, pursuant to ECL 71-0927(3), revocations pursuant to this section shall be automatic upon the second conviction and shall not require any hearing for revocation.

Shellfish licensee Patrick Shivers (License No. 16690) was convicted of ECL 13-0325(1) on March 22, 1995 and of ECL 13-0325 (5) on January 14, 1998. Therefore, Mr. Shivers' Shellfish License No. 16690 was automatically revoked on January 14, 1998, the date of the second conviction.

However, pursuant to ECL 71-0927(5), any person who has had a license revoked pursuant to ECL 71-0927(1) may, after the first sixty days of revocation, apply to the Commissioner for reinstatement of the license. Additionally, the Commissioner may reinstate such a revoked license upon such conditions as deemed appropriate and necessary to protect public health and natural resources of the state, including, but not limited to posting of bond. ECL 71-0927(5).

On March 26, 2002, the Department Staff, in its discretion, issued a Notice of Mandatory Revocation of Shellfish Digger's License (the Notice; License No. 16690) to Patrick Shivers. On or about May 10, 2002, Mr. Shivers sent a letter to the Regional DEC Bureau of Marine Resources Staff requesting reinstatement of his Shellfish Digger's License.

The Division of Fish, Wildlife and Marine Resources and the Division of Law Enforcement recommend that the Commissioner grant reinstatement of Mr. Shivers' license with the following conditions:

  1. All applicable conditions imposed by law, including 6 NYCRR 42.5, are applicable to this License.
  2. The reinstatement shall be probationary for a period of three years, beginning on the effective date of the reinstated license. During the period of probation:
    1. a conviction for a violation of ECL Article 13 shall, at the Department's discretion, be grounds for reimposition of the revocation for the period through March 31, 2007. Such revocation during the probationary period shall not require a hearing; however, the Licensee shall be given prior notice and an opportunity to adduce evidence demonstrating that the Department's record of the conviction is in error.
    2. a conviction for a violation of any section of the ECL specified in ECL 71-0927(1) shall result in the immediate revocation of the License for five years beginning on the date of the conviction for such violation. Such revocation during the probationary period shall not require a hearing; however, the Licensee shall be given prior notice and an opportunity to adduce evidence demonstrating that the Department's record of the conviction is in error.
  3. During the probationary period, the Licensee shall post financial assurance in the amount of $1,000.00. The Licensee shall submit proof, satisfactory to the Department, of said financial assurance which may be in the form of a bond, an assignment of a certificate of deposit or any other form acceptable to the Department. In the event the Department revokes the License pursuant to the terms set forth in paragraph "B" above, the principal amount of the financial assurance shall be forfeited to the state (interest accrued, if any, shall be retained by the Licensee).

Staff's request for additional license conditions in this case is within statutory authority and is appropriate in view of the Licensee's record of compliance. Mr. Shivers does not dispute the two prior convictions and is willing to accept the license with additional conditions.

Therefore, having considered this matter and having been duly advised, the Licensee's request for reinstatement of his Shellfish Digger's License (License No. 16690) is hereby granted, .subject to the additional license conditions set forth above. The additional conditions shall remain in effect for a period of three years from the initial date of issuance of the reinstated license.

For the New York State Department
of Environmental Conservation

/s/
BY: James T. McClymonds, Acting Assistant Commissioner
for Hearings and Mediation Services

Albany, New York
June 10, 2003

To: Patrick Shivers
Richard Sherman, Esq.

cc: Gordon Colvin, Chief, Bureau of Marine Resources
Lawrence Johnson, Director, Division of Law Enforcement

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