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Tree of Life Nursery School - Order, October 19, 2000

Order, October 19, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Violation(s) of the New York State Environmental
Conservation Law ("ECL") Articles 33 and 71 and Part 325 of Title 6 of
the Official Compilation of Codes, Rules and Regulations of the State
of New York by

TREE OF LIFE NURSERY SCHOOL
AND
RAPHAEL WIZMAN
Respondents.

ORDER

DEC File No. R1-2000-0303-19

WHEREAS:

  1. The New York State Department of Environmental conservation ("DEC" or "Department") Staff has moved for an order without hearing pursuant to §622.12 of Title 6 of the New York State Compilation of Codes, Rules and Regulations ("6 NYCRR") before Administrative Law Judge ("ALJ") Edward Buhrmaster.
  2. The attached hearing report of ALJ Buhrmaster is adopted as my decision in this matter, subject to my comments below. This case is about the Respondents' alleged violations of Environmental Conservation Law ("ECL") Section 33-0905(1) and 33-1301(8) and 6 NYCRR 325.17(a), involving the commercial application of pesticides without a valid pesticide applicator certification.
  3. As indicated in the hearing report, the Respondents violated these provisions by causing or allowing the commercial application of pesticides at the Tree of Life Nursery School without the services of a certified pesticide applicator.
  4. On July 3 and 25, 2000, Assistant Commissioner Ferreira and the Chief ALJ requested further information regarding the penalty assessment made by Staff. Responsive papers were submitted by Staff and by Respondent.
  5. The ALJ has found that Respondents' application of pesticides in the absence of the required certification violated applicable law and I agree. The ALJ recommended a payable penalty of $300 and such amount is imposed herein for the reasons stated by the ALJ. I note further that Respondent may seek a commercial pesticide applicator's license and if so obtained would be permitted to apply pesticides at the subject facility.

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

  1. The Respondents are jointly and severally assessed a civil penalty in the amount of Three Hundred Dollars ($300), which is to be paid to the Department within thirty (30) days of service of this Order upon either Respondent.
  2. The Respondents shall lawfully dispose of all pesticides previously quarantined at the school by the Department, also within thirty (30) days of service of this Order upon either Respondent. Immediately after disposal, the Respondents shall file a report with the Department indicating how the disposal occurred.
  3. The Respondent shall immediately begin conducting all pesticide-related activities in strict conformance with federal and New York State laws and regulations.
  4. All communication between Respondent and the Department with respect to this matter shall be made to the Department's Region 1 Director, Building 40-SUNY, Stony Brook, New York 11790-2356.
  5. The provisions, terms and conditions of this Order shall bind Respondents, their agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of Respondents.

For the New York State Department
of Environmental Conservation
/s/
By: John P. Cahill, Commissioner

Albany, New York
October 19, 2000

TO: Raphael Wizman, Rabbi
Congregation Etz Chaim
40 Kings Park Road
Commack, NY 11725

Chaim Z. Wizman, Esq.
12 Astor Place
Monsey, NY 10952

Karen A. Murphy, Esq.
Regional Attorney
NYSDEC - Region 1
SUNY Campus, Building 40
Stony Brook, NY 11794

Louise Aja, Esq.
Assistant Regional Attorney
NYSDEC - Region 1
SUNY Campus, Building 40
Stony Brook, NY 11794

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

In the Matter

- of -

the Alleged Violations of the New York State
Environmental Conservation Law ("ECL")
Articles 33 and 71 and Part 325 of Title 6 of the
Official Compilation of Codes, Rules and Regulations
of the State of New York ("6 NYCRR"), by:

TREE OF LIFE NURSERY SCHOOL
and
RAPHAEL WIZMAN
RESPONDENTS

DEC File No. R1-2000-0303-19

HEARING REPORT

- by-

/s/
Edward Buhrmaster
Administrative Law Judge

PROCEEDINGS

Under a cover letter dated April 13, 2000, Department of Environmental Conservation ("DEC" or "Department") Staff served a motion for order without hearing on the Tree of Life Nursery School in Commack and its director, Rabbi Raphael Wizman. By letter dated April 18, 2000, Rabbi Wizman acknowledged receipt of the motion, made various points in opposition, and requested a hearing on the matter.

On May 4, I initiated a conference call with Rabbi Wizman and DEC Staff attorney Louise Aja. During the call Ms. Aja agreed to accept Rabbi Wizman's letter as the Respondents' formal response to Staff's motion, in lieu of an affidavit. Also, Rabbi Wizman agreed to furnish various supporting documents that have since been received and are now considered part of his response.

It was clear during the May 4 conference call that the facts underlying Staff's motion were not in dispute. Instead, the dispute was whether, based on those facts, there had been a violation of law. Because I found that this latter issue had not been well-developed, I provided an additional opportunity for the parties to address it.

Ms. Aja replied on behalf of DEC Staff with a letter dated May 12, 2000, and a letter dated May 17, 2000, from Chaim Z. Wizman, Esq., of Monsey, was filed on the Respondents' behalf. Staff declined an opportunity I provided to make one final submission, and therefore the record closed on May 19.

- - Position of DEC Staff

DEC Staff allege that at some time prior to November 5, 1999, the Respondents caused or allowed the commercial application of pesticides at the Tree of Life Nursery School in Commack without a valid pesticide applicator certification, in violation of Environmental Conservation Law (ECL) Sections 33-0905(1) and 33-1301(8) and Section 325.17(a) of Title 6 of the New York Codes, Rules and Regulations [6 NYCRR 325.17(a)].

- - Relief Requested

DEC Staff requests that the Commissioner assess a civil penalty in the amount of Five Thousand Dollars ($5,000), the maximum authorized for a single violation of the pesticide law. Staff also requests that the Respondents be ordered to lawfully dispose of all pesticides stored at the nursery school, and begin conducting all pesticide-related activities in strict conformance with state and federal law.

- - Position of the Respondents

The Respondents claim that because the nursery school is a not-for-profit enterprise operated by the Congregation Etz Chaim Temple, a private religious organization, it cannot be considered a commercial establishment and, therefore, their use of pesticides at the facility cannot be considered "commercial" application. The Respondents assert that the spirit of the law is to assure certification of paid professional exterminators, and that Rabbi Wizman, who admits using general use pesticides at the nursery school, does not fit that description. If a violation is found, the Respondents assert that nothing more than a warning should be issued, and that a civil penalty would not be appropriate because they were not aware that their conduct was illegal.

FINDINGS OF FACT

  1. The Respondent Tree of Life Nursery School is located at 40 Kings Park Road in Commack, New York. It is operated by Respondent Rabbi Raphael Wizman on behalf of the Congregation Etz Chaim Temple, a private religious organization which also owns the property.
  2. On November 5, 1999, during a Department inspection, the following general use pesticides were found in storage rooms at the nursery school: d-CON Mouse Pellets, Ortho Home Pest Insect Control, Ortho Home Defense Indoor and Outdoor Insect Killer 2, Growers Choice Weed and Grass Killer, Raid Ant and Roach Killer, and Flower Time Premium Weed and Feed with Trimec.
  3. The pesticides for roaches and mice had been used by Rabbi Wizman or the school custodian as necessary around the school, and they had used the weed killer on cracks in the cement walks outside.
  4. All of the products found during the inspection were quarantined on-site for possible violations of the Department's regulations governing pesticide use.
  5. Rabbi Wizman is not a certified pesticide applicator, nor is the facility custodian. Neither one applied the pesticides under the direct supervision of a certified commercial applicator.

DISCUSSION

The relevant facts in this case, as stated above, are not disputed. In fact, the pesticide applications at issue here were admitted by Rabbi Wizman to the Department inspector both orally and in a signed statement, and Staff's case is based entirely on those admissions, there being no corroborating witnesses.

What is disputed is whether the applications were in violation of the law: more particularly, whether they were "commercial" applications requiring the services of a certified applicator. "Commercial application" is defined by statute as "any application of any pesticide except as defined in private or residential application of pesticides." [ECL Section 33-0101(11).] "Private application" relates only to certain applications done to produce an agricultural commodity [ECL Section 33-0101(38)], and therefore does not apply in this case. (The fact that the temple school is privately-operated is irrelevant because, under the pesticide law, "private" has a special meaning different from the one that is commonly understood.)

"Residential application" means "the application of general use pesticides by ground equipment on property owned or leased by the applicator, excluding any establishment selling or processing food and any residential structure other than the specific dwelling unit in which the applicator resides." [ECL Section 33-0101(41).]

- - Liability

Whether the activities at issue here required the services of a certified applicator turns on whether the applications were "commercial" or "residential" as the statute defines those terms. This point was not addressed adequately by the parties' initial submissions.

Staff argued in its motion that the applications were not "residential" because they were not performed at a residence owned or leased by the applicator. However, that deals with only part of the definition, since "residential" goes beyond the place where one lives to encompass other properties that the applicator owns or leases, but which are not used for living.

Replying to the motion, the Respondents claimed that the applications were not "commercial" because the nursery school is a not-for-profit enterprise run by a religious organization and, therefore, cannot be considered a "commercial" establishment. This also misses the point because "commercial", like "residential," has a statutory definition which varies from ordinary usage. Here, "commercial" does not necessarily connote some relation to commerce or profit-driven business; it means anything that does not fit the statutory definition of either "private" or "residential."

DEC Staff charged the Respondents with "commercial" application of pesticides. However, if the applications at issue could properly be described as "residential," they could not also be "commercial," since by statutory definition the terms are mutually exclusive. Because this issue was not well-developed in the motion or the response to it, I afforded the parties an additional opportunity to address it. I told them that information about similar cases that resulted in decisions of the Commissioner or the courts would be especially helpful, as would historical information explaining the intent of the law and regulations.

In its follow-up submissions, neither DEC Staff nor the Applicant cited any adjudicated cases based on facts similar to those here. (I have found none either.) Also, neither the parties nor I could find anything helpful from the legislative history. Therefore, to decide this matter, I rely on the apparent intent of the legislature as evidenced by the wording of the statutory definitions.

I conclude that the applications acknowledged by Rabbi Wizman, and confirmed in my findings of fact, were "commercial" in nature and therefore required the use of a certified applicator. Clearly they were not "private" since they were not for the purpose of producing an agricultural commodity. Furthermore, they were not "residential" because they were performed on premises owned by the congregation collectively, not on premises owned or leased by the rabbi himself.

To be "residential," the applications would need to have been made "on property owned or leased by the applicator." Is it sufficient that the property is owned or leased by the applicator's employer? Apparently not, since the statute does not read this way. The absence of the words "or the applicator's employer" in the definition of "residential application" is significant because, in defining "private application," the lawmakers made a point to include them. They defined "private application" as including "application of any pesticide for the purpose of producing an agricultural commodity on property owned or rented by the applicator or the applicator's employer." (Emphasis added.)

The inclusion of the words "or the applicator's employer" after the word "applicator" in the definition of "private application," and the absence of those words after the word "applicator" in the definition of "residential application," suggest that the term "applicator," as used in the definition of "residential application," must be construed narrowly as applying only to the applicator personally. Here, that means that Rabbi Wizman, as an employee of the congregation that owns the school, would not be authorized to apply general use pesticides; nor, for that matter, would the school custodian. These pesticides would have to be applied by or under the direct supervision of a DEC-certified applicator.

Rabbi Wizman's application of pesticides in the absence of certification is a violation of ECL Sections 33-0905(1) and 33-1301(8) as well as 6 NYCRR 325.17(a). ECL Section 33-0905(1) and Section 325.17(a) of the regulations basically state that, with exceptions not relevant here, any person who engages in the commercial application of pesticides shall be certified by the commissioner. Likewise, ECL Section 33-1301(8) makes it unlawful to engage in the commercial application of pesticides without a pesticide applicator certificate registration, except while working under the direct supervision of a certified applicator (a distinction not relevant here, since the rabbi does not claim that the applications were so supervised).

The Respondents challenge DEC's prosecution in this matter as unprecedented and based upon a misreading of the pesticide law. In his written submissions, Rabbi Wizman says that he spoke to various people including rabbis, ministers, priests, school law professors, and the synagogue council that licenses temples, and that none of them were aware of a law that would forbid the activity for which he is charged. The rabbi notes that the pesticides he used can be purchased by anyone at a supermarket, and that it is illogical that they can be applied by people in their own houses but not in a synagogue or a classroom.

Two letters in support of the Respondents have been filed by Agudath Israel of America, an Orthodox Jewish movement with which Rabbi Wizman is affiliated. In the letters, Mordechai Biser, Esq., a government affairs associate, argues that given his central role in the nursery school, the rabbi should be viewed as an agent of the property owner and therefore authorized to apply pesticides on the premises. To premise such authority on whether the rabbi's name appears on a deed or a lease, Biser contends, involves "hair-splitting" that defies common sense, though that is exactly the approach advocated by DEC Staff.

Pressed to cite case law supporting its prosecution, Staff acknowledged there is none, though it claims that its interpretation of the regulations has never varied, and that a number of matters based on similar facts have been settled by consent orders.

One should note that Staff's position is consistent with the language of the regulations that governed when the unlawful applications are alleged to have occurred at the nursery school. Those regulations stated that "each individual engaged in the commercial application of pesticides shall possess valid commercial applicator certification by the commissioner," except that such certification would not be required of certain individuals, including those "applying general use pesticides by the use of ground equipment on property personally owned or leased by the applicator, excluding any establishment selling or processing food, and excluding any residential structure other than the specific dwelling unit in which the applicator resides." [6 NYCRR 325.17(a)(1). Emphasis added. New pesticide regulations took effect in January, 2000.]

Basically, the regulations restated the statutory exception for "residential applications," but emphasized that the requisite property interest had to be personal to the applicator. As Staff argues, a member of a religious congregation does not own or lease the property because, as in this case, the property is owned by and under the control of the congregation as a whole.

Following this reasoning, no one but a certified applicator, or someone working under such an applicator's direct supervision, could apply the pesticides in question at the Tree of Life Nursery School. Whether this makes sense is beyond the scope of my inquiry, since, if the intent of the law can be divined from its wording, my job is only to apply the law to the facts that are presented. Staff says it makes special sense in this case because young children require more protection than any other class of persons. The Respondents take a contrary view. Why, they ask, should they have to hire a professional exterminator to address minor problems with roaches, weeds and mice, using products anyone can buy in a store and use in his or her own home?

- - Penalty

Staff requests a civil penalty of Five Thousand Dollars ($5,000), the maximum authorized by ECL Section 71-2907(1) for a first violation of the pesticide law. The exact circumstances of this violation (such as date, location, name of pesticide used, and purpose of application) are not asserted by Staff, since its entire case is premised on Rabbi Wizman's admission on November 5, 1999, that the pesticides found on-site that day were used by him or his custodian "when and if necessary" around the school. Staff contends that its penalty request is appropriate since it is likely that pesticides were sprayed at the school on several occasions, based on the number of pesticides found and the variety of their uses (at a minimum, for mice, roaches and weeds).

The Respondents argue that no civil penalty is appropriate and that nothing more than a warning should be issued, assuming a violation is found at all. Rabbi Wizman claims that, at the time of the applications, he was not aware they were against the law, and that, upon his later inquiry, others similarly situated (in synagogues and schools) also were not aware of their illegality. In fact, Rabbi Wizman writes, six of seven institutions he contacted have their custodians apply pesticides similar to those named in this case. According to the rabbi, "common courtesy" would have been for DEC Staff to issue a warning citing the law; a fine would be deserved only if the offense occurred again.

In support of Rabbi Wizman, Agudath Israel of America writes that imposing the maximum fine without a prior warning "on what is at least an arguably residential application, can hardly be deemed to be reasonable, and should not be allowed to stand." Also, the National Council of Young Israel, to which the rabbi's synagogue belongs, writes that it finds the "severe penalty" recommended by DEC Staff to be "quite distressful," and describes the rabbi as a "role model of self-sacrifice and concern to his constituency and the community at large," who should be extended "all courtesies and benefits of the doubt."

I find that, given the circumstances of this matter, a civil penalty of Three Hundred Dollars ($300) is appropriate. A warning would be inadequate since the Respondents received some unwarranted economic benefit from not retaining the services of a certified pesticide applicator. Also, the law is clear enough that Rabbi Wizman's actions were not authorized according to the statutory language for "residential application" of pesticides.

On the other hand, as Staff admits, there is no prior case law addressing this point, and there appears to be some confusion in the regulated community about when the services of a certified applicator are required. The pesticide statute is not as clear as it could be; the divorcing of terms such as "private," "residential" and "commercial" from their commonly understood meanings has caused some understandable confusion about how pesticide applications should be classified, and this confusion was manifested in both parties' initial submissions here.

While some penalty is appropriate, the Five Thousand Dollars ($5,000) sought by Staff, representing the maximum penalty for one violation, is far too great. Maximum penalties should be reserved for the most serious violations of the pesticide law, with due consideration to the culpability of the violator and the harm resulting from his or her conduct. Here, the rabbi appears to have been acting in good faith, with no prior knowledge that his conduct was unlawful.

I appreciate that one needs to be especially careful in the use of pesticides around small children. However, there is no evidence that the rabbi or his custodian misapplied any pesticide, or that their applications threatened or caused harm to anyone at the nursery school.

Finally, Staff cannot allege one violation for the purpose of fixing liability, and then assume multiple violations for the purpose of fixing the penalty for that violation, as it has done here.

Putting the violation in context, one should recall that it was brought to light through the investigation of a separate matter that did not result in charges against the Respondents. That matter involved the leakage or spillage of another pesticide, the weed killer Ridall, in a storage room, and its subsequent penetration through a porous block wall into an adjacent classroom, where its odor was detected. A complaint by a concerned parent to the U.S. Environmental Protection Agency was forwarded to DEC Staff, who, during their investigation, found the d-CON mouse pellets in packets on the storage room shelves. Rabbi Wizman said the pellets were placed around the facility to control mice in different locations, and, when asked if other pesticides were used at the school, he said "yes" and brought the inspectors to another storage room where the remaining pesticides were found.

The affidavit of Staff's own inspector, Anthony Lamanno, underscores that Rabbi Wizman has been straightforward about his conduct from the very beginning of this case, which should be considered in his favor. There has been no attempt to deceive the Department or to conceal activities. The rabbi appears to have cooperated fully with DEC Staff's investigation and answered its questions honestly and completely, though he disagrees vigorously with its interpretation of the law. His self-disclosure of his actions should be considered as a mitigating factor, as the Department should want to encourage such candor in the regulated community.

In his answer to Staff's motion, Rabbi Wizman argues that, as a result of the weed killer leakage into the classroom, upset parents pulled their children out of the school, causing a loss of over Fifty Thousand Dollars ($50,000). He says that he and the school have suffered enough financial damage as a result of that incident, and should not be penalized more.

However, that incident is not the basis of this action, and therefore its consequences for the school should not be a factor in determining the appropriate penalty here.

The Respondents should be held jointly and severally liable for any penalty that is assessed since Rabbi Wizman made the application that is charged as director of the nursery school, which benefitted from his conduct by saving itself the expense of hiring a certified applicator.

CONCLUSION

The Department's motion for summary order should be granted. None of the facts on which liability depends is genuinely controverted. In fact, as noted above, liability is premised on Rabbi Wizman's own admissions. These admissions demonstrate that, at some time prior to November 5, 1999, the Respondents caused or allowed the commercial application of pesticides at the Tree of Life Nursery School without the services of a certified pesticide applicator, in violation of ECL Sections 33-0905(1) and 33-1301(8) and 6 NYCRR Section 325.17(a).

RECOMMENDATION

The Respondents should be jointly and severally liable for an assessed penalty of Three Hundred Dollars ($300), and their pesticides, already ordered quarantined at the school by the Department, should be disposed of lawfully. There are no triable issues of fact regarding the amount of civil penalties which should be imposed.

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