Business Integrity Comm n v. All Green Lawn & Landscaping LLC OATH Index No. 1107/13 (Feb. 7, 2013) Violation No. TWC-9332

Transcription

1 Business Integrity Comm n v. All Green Lawn & Landscaping LLC OATH Index No. 1107/13 (Feb. 7, 2013) Violation No. TWC-9332 In a default hearing, the proof failed to establish that landscaper with dirt in truck was a business for the purpose of collection of trade waste under Administrative Code section (a). ALJ found that violation should be dismissed. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of BUSINESS INTEGRITY COMMISSION Petitioner - against - ALL GREEN LAWN & LANDSCAPING LLC Respondent REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge Petitioner, the New York City Business Integrity Commission ( BIC or Commission ), brought this proceeding pursuant to section (a) of the New York City Administrative Code, and rule 1-03 of title 17 of the Rules of the City of New York, against respondent, All Green Lawn & Landscaping LLC. In violation number TWC-9332, petitioner alleges that respondent collected trade waste without having a BIC license, in violation of Administrative Code section (a). At a hearing held on January 10, 2013, petitioner appeared by counsel, but respondent did not appear. Petitioner submitted proof (Pet. Ex. 1) showing that, after service of the notice of violation and a notice for an initial hearing to be held on December 27, 2012, a New Jersey attorney requested and was granted an adjournment of the December 27 hearing. Commission staff then mailed the notice for the January 10, 2013, hearing, as well as the notice of violation ( NOV ), to the attorney. Petitioner thus satisfied the jurisdictional prerequisites for finding respondent in default and the hearing proceeded in the form of an inquest.

2 - 2 - For the reasons given below, I find the proof insufficient to sustain the violation and recommend that it be dismissed. ANALYSIS The violation charged in this case arises from the requirement that any business which operates a business to collect trade waste from a commercial establishment is required to obtain a license from BIC, Admin. Code (a), or face penalties of not more than $5,000. Trade waste is defined as materials... that are discarded or rejected by a commercial establishment, and includes refuse or rubbish. Admin. Code (f) (Lexis 2012). BIC records indicate that respondent does not have a BIC license for hauling trade waste. At the hearing, petitioner provided documentary evidence, which included a copy of the NOV number TWC-9332 (Pet. Ex. 1). The NOV states that on September 11, 2012, at around 12:00 p.m., a Commission investigator observed a white 2009 Ford dump truck with New Jersey license plates at 36 Aaron Lane, Staten Island, New York. Inside the truck was dirt and rock. The investigator also noted that he observed the truck, while it was being used to transport trade waste (Dirt & Rock), from (admission by driver) 36 Aaron Lane Staten Island, NY Attached to the NOV were photographs showing a truck with respondent s name of All Green Lawn & Landscaping and a telephone number on the cab, parked on a tree-lined street in front of heavy steel gates. In the photograph of the truck, a mound of dirt is visible over the top of the approximately eight-foot high gates, which have coiled barbed wire across the top. Another photo shows dirt in the bed of the truck mixed in with small rocks and vegetation of some kind. There are also photos of the vehicle and insurance registration, indicating the truck is registered to respondent, and of the Virginia driver s license of the driver. The vehicle registration and the insurance card both indicate that All Green Lawn and Landscaping is located in Freehold, New Jersey. The NOV further states that respondent does not have a license or registration with the Commission. The NOV and attached photographs, the sole proof in this case, established a spare amount of facts. Based upon respondent s company name All Green Lawn & Landscaping and the vegetation mixed with dirt in the truck bed, it is fair to infer that respondent is a commercial landscaping business. The NOV statement that the investigator heard an admission by the driver, with no indication of what the driver s statement consisted of,

3 - 3 - established little. The proof showed that the investigator observed respondent s commercial landscaping truck, with New Jersey license plates and a New Jersey registration, loaded with dirt and rocks and parked on a tree-lined Staten Island street. In terms of the necessary elements of section (a), this proof is insufficient. First, there was no indication that the material in the truck was trade waste. In the landscaping business, it is well known that soil is a material often added to a site under landscaping renovation. In this regard, the NOV s mention of unspecified admissions by the driver, without indicating what the statements consisted of, is of little assistance in establishing what was being done with the dirt in the truck. From the placement of the phrase admission by driver in the NOV narrative, the most that can be said is that, in the investigator s opinion, the driver admitted that the material in the truck was being transported from 36 Aaron Lane on Staten Island. Even assuming that this is what the driver stated, this would be insufficient to demonstrate that the contents of the truck were being discarded, since it is equally if not more plausible that the soil was being used as a landscaping material. Second, the proof does not demonstrate that the dirt was from a commercial establishment, as also required by section (a). There is no statement in the NOV indicating that a commercial business was observed nearby the location where the truck was parked. Nor are there any photographs showing a commercial sign. The street where the truck is parked looks more residential than commercial. Because the proof failed to demonstrate either that the material in the truck was trade waste or that it was received from a commercial establishment, as required by section (a), the violation cannot be sustained. Finally, insofar as the investigator may have believed that the dirt constituted construction debris being transported by a contractor, there is no proof to support such a suggestion. Section (a) provides that a business transporting construction waste is required to obtain an exemption from the Commission. Prior cases hold that a contractor who hauls construction debris from a job site without a license and without an exemption is in violation of section (a) based upon the Commission s interpretation of the provision, since the contractor could be a commercial establishment as provided in the regulation. Edcia Corp. v. McCormack, 44 A.D.3d 991, (2d Dep t 2007) (16-505(a) violation upheld where construction company transported construction and demolition debris from public project and residential job sites); DeCostole Carting, Inc. v. Maldonado, 35 A.D.3d 648, 649 (2d Dep t

4 ) (16-505(a) violation upheld where construction company transported construction and demolition debris from residential and not-for-profit job sites); Business Integrity Comm n v. Popular Pioneer Contracting, Inc., Violation No. TW-7492, Dep t of Consumer Affairs Appeal Determination at 2 (July 13, 2012) (16-505(a) violation upheld where the record establishes that the waste the respondent collected was solely demolition and construction debris which it generated in the course of its business and, that it was neither licensed nor exempted by BIC ). Here, however, there is no proof that the business charged with the violation, whose name indicates that it is a commercial landscaper, is a contractor or a construction company, nor any proof that there is a construction site near the location where the truck was parked. In the absence of such proof, there can be no finding that the dirt is construction debris or that an exemption from section (a) was required. Since the proof indicates that respondent was a landscaper and does not support a finding that the dirt and rocks were trade waste, there is no basis to find that respondent was operating a business for the purpose of the collection of trade waste. See Business Integrity Comm n v. Camara, OATH Index No. 1063/13 (Jan. 15, 2013) (where proof showed only presence of trade waste inside commercial vehicle, violation dismissed); Business Integrity Comm n v. Tidiani, OATH Index No. 1189/13 (Jan. 30, 2013) (where proof failed to demonstrate that respondent was operating business for the purpose of collecting trade waste violation dismissed). For these reasons, no violation of section (a) was proven to have occurred and the NOV number TWC-9332 should be dismissed. FINDING AND CONCLUSION 1) Petitioner failed to establish that respondent was involved in a business for the purpose of collection of trade waste under Administrative Code section (a). NOV TWC-9332 should therefore be dismissed. Dated: February 7, 2013 John B. Spooner Administrative Law Judge

5 - 5 - SUBMITTED TO: SHARI C. HYMAN Commissioner & Chair APPEARANCES: JONATHAN JACOBS, ESQ. Attorney for Petitioner No Appearance By or For Respondent