A hearing on the above-captioned matter was held on March 25, 2014.

Transcription

1 CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS X DEPARTMENT OF CONSUMER AFFAIRS, DECISION AND ORDER Complainant, Record No.: ADJC against SAVERIO COLARUSSO, Respondent X Violation No.: LL License No.: Respondent s Address: rd Avenue Flushing, A hearing on the above-captioned matter was held on March 25, Appearances: For the Department: Julliana Elbayar, Esq.; Jordan Cohen, Esq.; Lieutenant Richard J. Khalaf, NYPD; Police Officer Brian Coll, NYPD. Also present was Mark Butler, Esq. For the Respondent: Saverio Colarusso. 1 The respondent is charged with violating the following: 1) Title 6 of the Rules of the City of New York ( 6 RCNY ) Section 2-212(p)(7) by failing to properly and humanely care and treat the horse under his direct supervision and control (1 count); 2) 6 RCNY Section 6-42(c) by failing to comply with the terms of a written settlement agreement (1 count); and 3) New York City Administrative Code ( Administrative Code ) Section by failing to maintain the standards of integrity, honesty and fair dealing required of licensees (1 count). Based on the evidence in this case, I RECOMMEND the following: Findings of Fact From December 14, 2013 to December 18, 2013, the respondent compelled a horse named Blondie to pull a horsedrawn cab while the horse exhibited difficulty walking on its left hind leg due to a bacterial infection ( thrush ) in the hoof of that leg. 1 The initial appearance for respondent was by Alex DeJesus, who claimed to be Mr. Colarusso s authorized representative. He withdrew his representation, however, before the hearing began. Mr. Colarusso then appeared for the hearing pro se.

2 On March 3, 2010, the respondent entered into a Settlement Agreement with the Department to settle a violation of 6 RCNY Section In Paragraph 4 of that document, the respondent agreed to abide by the laws and rules of the Department of Consumer Affairs, including those found in the Rules of the City of New York and the New York City Administrative Code (see LL ). On August 2, 2010, the respondent entered into an Assurance of Discontinuance with the Department to settle a violation of 6 RCNY Section In Paragraph 3 of that document, the respondent agreed to bring his business practices into compliance with the Rules of the City of New York and the New York City Administrative Code (see LL ). Opinion Charge 1 (6 RCNY Section 2-212(p)(7)) The Department established the charge by a preponderance of the credible evidence. Lt. Khalaf and P.O. Coll testified, consistently and in detail, that, while on patrol together on December 18, 2013, on 49 th Street between 5 th and 6 th Avenues in Manhattan, they both observed the respondent driving a horsedrawn cab that was being pulled by a horse exhibiting difficultly walking on its left rear leg. 2 They pulled the horsedrawn cab over and spoke with the respondent. They each recalled that when they inquired about the horse s condition, Mr. Colarusso stated that the horse had been walking like that since 4 days earlier. After assisting the horse back to the stables where it was kept, Mr. Colarusso was arrested for animal cruelty. 3 A medical evaluation later determined that the horse suffered from thrush, a bacterial infection of the hoof. 4 2 The Lieutenant and Officer each explained that the horse walked on 3 of its legs by placing the hoof flat on the ground but, with respect to the rear left leg, the horse walked very gently, using only the tip of its hoof. They first observed this behavior after a woman approached their squad car to tell them that she saw the horse walking in a way that looked like it was injured. 3 See New York State Agriculture and Markets Law Section 353. As a result of his arrest, an Order of Protection was issued on December 20, 2013, prohibiting the respondent from causing further injury to the horse. 4 Sergeant Raymond Aviles of the NYPD (horse) Mounted Unit arrived at the scene after Mr. Colarusso was pulled over and, after attempting to walk the horse, determined that the horse should not be pulling a carriage due to the condition of its leg. The next day, Lt. Khalaf and P.O. Coll met Equine Veterinarian Dr. Dennis M. Farrell at Blondie s stall. The Department submitted medical documents which show that upon his examination, Dr. Farrell diagnosed the horse with left rear leg lameness caused by thrush in the frog (concave) of the hoof. Dr. Farrell recommended that the horse cease pulling carriages until it healed. Officer Coll later learned that horse was sent to a facility in Pennsylvania to complete its recovery.

3 Mr. Colarusso admitted that the horse was walking on its toe with respect to the rear left leg but he denied that he told the Lieutenant and Police Officer that the horse had been exhibiting this behavior for 5 days. He argued that Blondie was injured from a stumble (or a strange movement) after being startled by a garbage truck only 15 minutes before being pulled over by the police. He also argued that he was driving the horse back to the stable to report the injury. It is determined that the Department s witnesses provided a more accurate description of events than did the respondent. Mr. Colarusso s claim that the horse was injured only 15 earlier is rebutted by the medical evidence establishing a bacterial infection in the hoof. In addition, he testified that he did not notice Blondie s lameness until someone pointed it out to him just before the police pulled him over. This contradicts his claim that he knew the horse was injured 15 minutes earlier. Furthermore, Mr. Colarusso presented no other evidence to rebut the Lieutenant and Police Officer s testimony that he admitted the horse had been exhibiting rear-left leg lameness for 5 consecutive days. The charge is sustained and the penalty will be calculated accordingly. Charge 2 (6 RCNY Section 6-42(c)) In light of the above determination that the respondent is guilty of violating 6 RCNY Section 2-212(p)(7), the respondent has also violated Paragraph 4 of the March 3, 2010 Settlement Agreement (see LL ) and Paragraph 3 of the August 2, 2010 Assurance of Discontinuance (see LL ). Accordingly, the charge will be sustained. Charge 3 (Administrative Code Section ) In light of the above determination with regard to Charge 1 5 and in light of Paragraph 13 of the August 2, 2010 Assurance of Discontinuance (see LL ), 6 the charge will be sustained and the license revoked. ORDER The respondent is found guilty with respect to the charges and is hereby ordered to pay to the Department a FINE of $3,000, which is immediately due and owing, as follows: Charge 1: $2,500 ($500 per day, for 5 days) 5 Administrative Code Section requires that licensees conduct their business with integrity. The concept of basic integrity - let alone the level required of licensees - most certainly includes the humane treatment of animals in their charge. 6 Paragraph 13 states that [a]ny material breach of any provision of this AOD... shall be a basis for automatic revocation of license(s) issued to Respondent by the Department. In Paragraph 3, Mr. Colarusso agreed to not further violate 6 RCNY Section

4 Charge 2: Charge 3: $ 500 ($500 per count, for 1 count) Revocation The respondent s license is REVOKED effective immediately. The respondent is directed to surrender the license document immediately in person or by mail to DCA s Licensing Center which is located at 42 Broadway, New York, NY If respondent operates while the license is revoked, the respondent will be subject to criminal prosecution and/or civil penalties of at least $100 per day for each and every day of unlicensed activity, as well as the closing of the respondent s business and/or the removal of items sold, offered for sale or utilized in the operation of such business, pursuant to Administrative Code Sections and (the Padlock Law ). This constitutes the recommendation of the Administrative Law Judge. Richard J. Zeitler, Jr. Principal Administrative Law Judge DECISION AND ORDER The recommendation of the Administrative Law Judge is approved. This constitutes the Decision and Order of the Department. The Department may suspend any DCA license(s) held by the respondent if the respondent fails to comply with this Decision and Order, including payment of the fine, within thirty (30) days. Payment with a check that is dishonored or a credit card transaction that is denied or reversed will not be considered compliance with this Decision and Order. Such license(s) will not be reinstated until the respondent has served any suspension period ordered in this Decision and has paid ALL fines owed to the Department. Date: April 11, 2014 Eryn DeFontes Associate Director of Adjudication cc: Julliana Elbayar, Esq. Staff Attorney Legal Division

5 Jordan Cohen, Esq. Assistant Director Legal Division Lieutenant Richard J. Khalaf, NYPD New York City Police Department Police Officer Brian Coll New York City Police Department 1 Police Plaza - Rm New York, NY Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY APPEAL INFORMATION You have 30 days to file an APPEAL of this decision. You must include with your appeal all of the following: (1) a check or money order payable to DCA for the sum of $25; and (2) a check or money order payable to DCA for the amount of the fine imposed by the decision, or an application for a waiver of the requirement to pay the fine as a requisite for an appeal, based upon financial hardship. The application must be supported by evidence of financial hardship, including the most recent tax returns you have filed. BY Send your appeal to myappeal@dca.nyc.gov and, at the same time, licmail the $25 appeal fee to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY BY REGULAR MAIL: Mail your appeal and the $25 appeal fee to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY You must also mail a copy of your appeal to: DCA, Legal Division, 42 Broadway, 9 th Floor, New York, NY Make sure to include in your appeal some indication or proof that you have sent a copy of the appeal to DCA s Legal Division. You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY