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Slater, Jeffrey and Slater Supply Company, Inc. - Order, August 30, 1994

Order, August 30, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations
of the Environmental Conservation Law
("ECL") Article 33 and of Title 6 of the
Official Compilation of Codes, Rules and
Regulations of the State of New York
("6 NYCRR") Parts 320-329 by

ORDER
Case #1-2060

JEFFREY SLATER AND SLATER SUPPLY COMPANY, INC.

Respondent

WHEREAS:

  1. A Notice of Hearing and Complaint was duly served on Respondent Jeffrey Slater on March 10, 1994. The Respondent did not appear for the scheduled pre-hearing conference as required by the Notice and did not file an answer to the Complaint. As found by the Administrative Law Judge in his attached Default Hearing Report, this constitutes a default by Respondent Jeffrey Slater. The complaint against the Slater Supply Company, Inc., originally a co-Respondent in this proceeding, has been withdrawn due to that companys status as a debtor in Bankruptcy Court.
  2. Therefore I find that Respondent Jeffrey Slater committed the following violations as charged in the Complaint: offering for sale eight unregistered pesticides, in violation of ECL 33-1301(1)(a); offering for sale four misbranded pesticides, in violation of ECL 33-1301(1)(e); disposing of five quarantined pesticides without permission from the Department, in violation of ECL 33-1301(10); possessing and offering for sale a compound containing mercury, in violation of 6 NYCRR 326.2(c)(10); and offering for sale a pesticide in violation of its label restrictions, in violation of 6 NYCRR 325.2(b).
  3. I further find that the requested total civil penalty of $30,000 sought from the Respondent is justified and authorized by ECL 71-2907 and the guidelines in the Departments Pesticides Enforcement Guidance Memorandum, as indicated in the penalty calculation attached to the Complaint. Respondent should also be required to trace the disposition of the subject pesticides as ordered below.

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

  1. Respondent Jeffrey Slater shall pay a civil penalty in the amount of $30,000 (THIRTY THOUSAND DOLLARS) no later than 30 (THIRTY) days after service of this Order on Respondent.
  2. Respondent shall supply documentation with respect to the movement and disposition of the following pesticides from Respondents former establishment at 143 Allen Boulevard, Farmingdale, New York: (1) seven 5-gallon and fifteen 1-gallon containers of "Sani-Sol Disinfectant - Sanitizer Fungicide Deodorizer" (EPA Reg. No. 4482-25-44909); (2) one 1-gallon container of "Physan 20") (EPA Reg. No. 9046-3AA); (3) six 1-gallon containers of "Formula 40" (USDA Reg. No. 5602-82); (4) four 1-gallon containers of "Greenhouse Fogging Insecticide" (EPA Reg. No. 6812-33); (5) two 1-gallon containers of "Pramex 13.3% Emulsifiable Concentrate" (EPA SLN Nos. VA-800043 and NC-790030); (6) five 1-gallon containers of "Kilmite 40" (EPA Reg. No. 72-790030); (7) one 1-gallon container of "Acaraben 4E" (USDA Reg. No. 100-458; and (8) two 5-gallon containers of "Soil Drench C" (No EPA Reg. No.). This information must also be supplied within 30 days of service of this Order on Respondent.
  3. All communications between the Respondent and the Department Staff concerning this Order must be made to the Departments Region 1 Director, Building 40, S.U.N.Y. Stony Brook, Stony Brook, New York 11790-2356.
  4. The provisions, terms and conditions of this Order will bind the Respondent, his agents, servants, employees, successors and assigns, and all persons, firms and corporations acting for or on behalf of the Respondent.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
LANGDON MARSH, COMMISSIONER
/s/

Dated: August 30, 1994
Albany, New York

TO: Jeffrey Slater and Slater Supply Company, Inc. 98 Cambridge Lane Boynton Beach, Florida 33436-6215

Udo M. Drescher, Esq. NYSDEC Region 1 Building 40 S.U.N.Y. Stony Brook Stony Brook, New York 11790-2356

Michael A. Farina, Esq. Goldman, Horowitz & Cherno P.O. Box 630 Mineola, New York 11501

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of Alleged Violations DEFAULT SUMMARY
of the Environmental Conservation Law REPORT
("ECL") Article 33 and of Title 6 of the
Official Compilation of Codes, Rules and Case #1-2060
Regulations of the State of New York
("6 NYCRR") Parts 320-329 by

JEFFREY SLATER AND SLATER SUPPLY

COMPANY, INC.

Respondent

Proceedings

The Region 1 Staff of the New York State Department of Environmental Conservation originally served a Notice of Hearing and Complaint on the Respondents, Jeffrey Slater and Slater Supply Company, Inc., by certified mail at their last known address on March 10, 1994. The Staff also served the original corporate Respondent, Slater Supply Company, Inc., by filing and serving the Notice with the Secretary of State of the State of New York on March 15, 1994. As further described below, the Department Staff withdrew its complaint against Slater Supply Company, Inc., in order to pursue a negotiated settlement while that corporation is in the status of a debtor in Bankruptcy Court. The Respondent Jeffrey Slater, alleged to be a Vice-President of the Slater Supply Company, did not file an answer or appeare for the pre-hearing conference which was scheduled for April 19, 1994 in the Notice.

The Department Staff served a Notice of Motion for a default judgment dated May 5, 1994. The motion included an affidavit of the Staffs Assistant Regional Attorney for Region 1, Louise Aja, with attached exhibits, including the Notice of Hearing and Complaint, affidavits of service and the certified mail return receipts. These documents were received in the Office of Hearings on May 9, 1994. The record of the proceeding would have closed on May 20, 1994, when the time for Respondents to reply to the motion for a default judgment, including time for mailing under 6 NYCRR 622.6(b), expired.

Bankruptcy Status Slater Supply Company, Inc.

On May 23, 1994, Michael Farina, Esq., of Goldman, Horowitz & Cherno, Garden City, New York, wrote to Ms. Aja of the Department Staff, with a copy to the Office of Hearings, informing her that he represented Andrew M. Thaler, Trustee of the Estate of Slater Supply Company, Inc. That corporation had filed a Chapter 7 Bankruptcy Petition on April 8, 1993, and its case was pending in the United States Bankruptcy Court, Eastern District of New York, in Westbury. Mr. Farina demanded that the Department Staff withdraw its application for a default judgment against Slater Supply Company, Inc., on the grounds that this proceeding was stayed by operation of 362(a)(1) of the Bankruptcy Code.

Correspondence ensued among Mr. Farina, Ms. Aja and her replacement on the case, Udo M. Drescher, Esq., and the assigned Administrative Law Judge ("ALJ"), Andrew S. Pearlstein. While the Department Staff indicated it does not fully agree with Mr. Farina that this proceeding is stayed against the corporate respondent under the Bankruptcy Code, Staff agreed to attempt to negotiate a settlement to resolve its action against Slater Supply Company, Inc. Staff reserved its right to reactivate the motion for a default judgment against the company if the negotiations prove unsuccessful. Staff also requested that the default motion remain pending against Jeffrey Slater in his individual capacity.

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 Respondent Jeffrey Slater defaulted. Staff also submitted a proposed order. These documents adequately meet the requirements of 6 NYCRR 622.15(b) for a motion for a default judgment.

The Department Staff served Mr. Slater by certified mail at their his known address, in Boynton Beach, Florida. The address was determined by an investigation by Vincent Palmer, a Pesticide Control Specialist with Region 1, in which he traced Respondents addresses through the Post Office and other contacts from Long Island, in the Farmingdale area where the Slater business had been located. The certified mail receipts, indicating the notices were received on March 10, 1994, were returned with an apparent signature in which the last name appears to be Slater. The envelopes containing the Notices and Complaints were returned to the Regional Office, however, with the handwritten notation on them "return to sender, not at this address." The envelopes were apparently opened and then taped closed before being returned. These circumstances lead me to find that the Respondent Jeffrey Slater was properly and actually served by certified mail on March 10, 1994, and that he attempted to evade service by returning the envelopes. Such service by certified mail is authorized by 6 NYCRR 622.3(a)(3).

Under 6 NYCRR 622.15, the ALJs 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 the respondent was properly served and failed to appear or answer. The papers submitted in this proceeding establish that Respondent Jeffrey Slater defaulted.

Attached to this report is the Department Staffs proposed order. Since this action is withdrawn against the corporate Respondent, Slater Supply Company, Inc., the order is modified to remove references to that party.

/s/
Andrew S. Pearlstein
Administrative Law Judge

Dated: August 30, 1994
Albany, New York

Attachment

To: Udo M. Drescher, Esq.
NYSDEC Region 1
SUNY Campus
Building #40
Stony Brook, New York 11790-235

Jeffrey Slater
98 Cambridge Lane
Boynton Beach, Florida 33436-6215

Michael A. Farina, Esq.
Goldman, Horowitz & Cherno
P.O. Box 630
Mineola, New York 11501

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