Business Integrity Comm n v. Freire OATH Index No. 1600/13 (Apr. 10, 2013) Violation No. TWC-9511 At a default hearing, evidence failed to establish that respondent was a business operating for the purpose of collecting trade waste under section 16-505(a) of the Administrative Code. Petitioner s motion to amend the pleadings to charge violation of section 16-505(b) is denied. Dismissal of violation recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of BUSINESS INTEGRITY COMMISSION Petitioner -against- AMANDA FREIRE d/b/a S-LAWN CARE Respondent REPORT AND RECOMMENDATION ASTRID B. GLOADE, Administrative Law Judge Petitioner, the New York City Business Integrity Commission ( BIC or Commission ), brought this proceeding pursuant to section 16-518(a) of the New York City Administrative Code, and rule 1-03 of title 17 of the Rules of the City of New York after it issued Violation Number TW-9511 against respondent, Amanda Freire d/b/a S-Lawn Care. Petitioner alleges that on October 11, 2012, its investigator observed respondent collecting trade waste in the form of dirt and bricks without a BIC license for such activity, in violation of section 16-505(a) of the Administrative Code. A hearing was scheduled for March 7, 2013. Petitioner appeared by counsel, but respondent did not appear. Petitioner submitted proof of service of the notice of violation and hearing by first class mail, pursuant to its rules, upon respondent at the address displayed on respondent s vehicle registration (Pet. Exs. 1, 2). See 17 RCNY 1-02 (Lexis 2012). Petitioner thus satisfied the jurisdictional prerequisites for finding respondent in default and the hearing proceeded in the form of an inquest.
- 2 - PRELIMINARY MATTER Petitioner charged that respondent violated section 16-505(a) of the Administrative Code, which prohibits the unlicensed operation of a business for the purpose of collecting trade waste from commercial establishments. At the close of its case, and in response to an inquiry from this tribunal regarding Notice of Violation ( NOV ), petitioner sought leave to amend its NOV to allege violation of Administrative Code section 16-505(b), instead of section 16-505(a) as charged in the NOV. Section 16-505(b) makes it unlawful to collect trade waste generated by one s own business without first having registered with the Commission. Petitioner contended that there is no prejudice to respondent in amending the alleged violation, as it is a minor change and, had the respondent appeared, the defense would not have been different (Tr. 21-22). OATH rules require consent of the parties or permission of the administrative law judge if a pleading is to be amended less than twenty-five days before commencement of a hearing. See OATH Rules of Practice, 48 RCNY 1-25 (Lexis 2012). Permission to amend a petition is to be freely granted absent irremediable prejudice to the respondent. See Dep t of Correction v. Rebecca, OATH Index No. 151/94, mem. dec. (Sept. 17, 1993). The issue here is whether amendment of the pleadings would irremediably prejudice the non-appearing respondent. It is a bedrock principal [sic] of due process that, in an administrative proceeding, as in a criminal trial, no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged. See Baines v. Berlin, 36 Misc. 3d 203, 207 (Sup Ct. N.Y. Co. 2012) (quoting Murray v. Murphy, 24 N.Y.2d 150, 157 (1969)); see also Sulzer v. Environmental Control Bd. of City of NY, 165 A.D.2d 270, 280-81 (1st Dep t 1991). Moreover, prejudice is presumed where there is a violation of such a fundamental constitutional right as the right to be put on notice of the charges made. Murray, 24 N.Y.2d at 157. These principles are implicated when an agency seeks to sustain a violation different from the one specified in its notice to respondent. In the context of an administrative proceeding, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense. Block v. Ambach, 73 N.Y.2d 323, 333 (1989) (citations omitted); see also D Ambrosio v. Dep t
- 3 - of Health, 4 N.Y.3d 133, 140-41 (2005) (same). Under the circumstances here, the proposed amendment would deprive respondent of notice of the charges against him. Respondent was not on notice of the proposed section 16-505(b) violation because he was charged with a distinctly different violation. Significant distinctions between sections 16-505(a) and 16-505(b) are: 1) section 16-505(a) requires a license, while section 16-505(b) imposes a registration requirement; 2) section 16-505(a) regulates entities whose business purpose is the collection, removal, and disposal of trade waste, while section 16-505(b) regulates entities that collect, remove, and dispose of waste generated by their own business operations; 3) section 16-505(a) requires that such waste have originated from the premises of a commercial establishment required to provide for the removal of such waste, while 16-505(b) does not impose such a requirement; and 4) the maximum fine for violation of section 16-505(a) is $5,000, while the maximum fine for violation of section 16-505(b) is $1,000. 1 This tribunal recently declined to sustain a 16-505(b) violation where petitioner charged respondent with violation of section 16-505(a), noting that they are different violations. Business Integrity Comm n v. Tidiani, OATH Index No. 1189/13 (Jan. 30, 2013). In Business Integrity Comm n v. Tidiani, a self-represented respondent admitted he collected in his vehicle cardboard generated in the operation of his business. ALJ Spooner concluded that while the evidence might have sustained a charge under section 16-505(b), a parallel but different violation, respondent was on notice only as to the charged section 16-505(a) violation. ALJ Spooner concluded, it would be improper to sustain a different violation here. Tidiani, OATH 1189/13 at 4. It would be similarly inappropriate in this default proceeding to permit petitioner to amend its pleading to charge respondent with a violation as to which respondent was not on notice. It should be noted that respondent s failure to appear is not an automatic bar to all amendment of the initial pleadings. Indeed, this tribunal has granted leave to amend in default proceedings. See, e.g., Taxi & Limousine Comm n v. Habib, OATH Index No. 404/11 at 1-2 (Sept. 1, 2010) (finding no prejudice to respondent who failed to appear in amendment of the charges when the sole effect of the amendment was to reduce the total number of charges respondent was facing); Taxi & Limousine Comm n v. Asogah, OATH Index No. 359/11 at 1-2 1 During the hearing, petitioner indicated that the maximum fine that can be imposed for violation of section 16-505(b) is $5,000 (Tr. 23); however, section 16-515(c) of the Administrative Code provides for a civil penalty not to exceed $1,000 for a violation of section 16-505(b).
- 4 - (Aug. 26, 2010) (same); Dep t of Sanitation v. Markovich, OATH Index No. 943/02 (Feb. 2, 2005) (leave to amend charges to shorten the time period during which respondent is alleged to have been absent without leave granted at default hearing). These cases are distinguishable because the amendment served only to reduce the number or the scope of the charges of which respondent had already been placed on notice. Here, by contrast, the proposed amendment would subject respondent to a violation different from the one of which he was notified. The facts here are also distinguishable from those of Business Integrity Comm n v. Jerusalem Carting, OATH Index No. 1194/13 (Jan. 14, 2013), where, in a proceeding in which respondent did not appear, this tribunal noted that although the NOV referenced a section of the BIC Rules different from the one described in the NOV, the respondent was adequately placed on notice of the nature of the violation by the accurate description of the violation in the narrative portion of the NOV. Business Integrity Comm n v. Jerusalem Carting Inc., OATH Index No. 1194/13 at 2 n.1 (Jan. 14, 2013). The NOV in this case did not place respondent on notice that he would be called upon to defend against a section 16-505(b) violation at the hearing. For example, the pre-printed NOV form shows two boxes the inspector can check: one box indicates 16-505(a) and the other 16-505(b). Only the box for 16-505(a) is checked. In the section labeled description of violation and date(s) of unlicensed or unregistered activity, the entry states Unlicensed Activity, which is a section 16-505(a) violation. Finally, the narrative portion of the NOV summarizes the inspector s observations, 2 but does not describe the violation in a manner that would alert respondent that he should be prepared to defend any charge other than the stated section 16-505(a) violation. 3 In sum, the NOV here, unlike that in Business Integrity Comm n v. Jerusalem Carting Inc., fails to put respondent on notice that he should be prepared to defend against a different violation. 2 The narrative portion of the NOV states: On October 11, 2012, at 10:00 a.m., this commission investigator did observe a 2002 White GMC dump truck. This vehicle had New York State DMV license plate and vehicle identification numbers (see below) and was observed collecting and transporting trade waste (excavated dirt and bricks). By admission of driver, waste was picked up at 355 Barlow Avenue, Staten Island, NY and was being transported to 451 Spencer Street SI, NY (Transfer Station). Driver stated that owner just bought company one month ago. There were no commission issued trade waste license plates affixed to any part of the vehicle. S-Lawn Care nor Amanda Freire have submitted an application for a license or registration with the Commission. 3 The NOV indicates that respondent did not apply for a license or registration, but in the face of the specific notice of the 16-505(a) violation, an unexplained reference to registration is insufficient to alert respondent of the need to defend against a 16-505(b) charge, given that the NOV clearly alleges only unlicensed activity under section 16-505(a).
- 5 - Therefore, petitioner s motion for leave to amend its pleading to allege violation of Administrative Code section 16-505(b), instead of section 16-505(a), is denied. ANALYSIS Any business that collects trade waste is required to obtain a license from the Commission. Admin. Code 16-505(a) (Lexis 2012). Trade waste is defined as materials that are discarded by a commercial establishment, including garbage, refuse, street sweepings, rubbish construction and demolition debris... Admin. Code 16-501(f) (Lexis 2012). Section 16-505(a) provides an exemption for the collection and removal of construction and demolition debris, but only if the exemption is granted by the Commission upon application by the hauler. Admin. Code 16-505(a) ( Grant of such exemption shall be made by the commission upon its review of an exemption application ). Petitioner alleges respondent violated section 16-505(a) by collecting trade waste in the form of excavated dirt and bricks without a Commission license. At the hearing, petitioner relied on documentary evidence and the testimony of BIC Investigator Albergo. Petitioner produced a copy of NOV number TW-9511 issued to respondent, with attached photographs (Pet. Ex. 2). The NOV states that on October 11, 2012, at about 10:00 a.m., Investigator Albergo observed a white 2002 GMC dump truck collecting trade waste in the form of excavated dirt and bricks. The investigator determined that the vehicle is registered to Amanda Freire and the driver told Investigator Albergo that its owner had recently acquired the company, S-Lawn Care, Inc. (Pet. Ex. 2; Tr. 15, 17). The NOV and photographs indicate that no BIC-issued license plate was affixed to the vehicle, as required by section 5-10(a) of petitioner s rules. See 17 RCNY 5-10(a) (Lexis 2012). The investigator determined that respondent had not applied for or been granted a Commission license or registration (Pet. Ex. 2). Photographs of the inside of the truck show dirt, grass mixed in with the dirt, and five bricks of a type referred to as pavers (Tr. 19). Photographs of the door of the vehicle show S- Lawn Care, Inc., a phone number, and a street address, but no building number. Another photograph shows the words sod, shrubs, flowers, pavers on the side of the vehicle. The NOV indicates that the driver admitted that he picked up the material in the vehicle at 355 Barlow Avenue, Staten Island, New York, and was transporting it to a transfer station located at 451 Spencer Street, Staten Island (Pet. Ex. 2). According to Investigator Albergo, the driver stated he
- 6 - had been working on a job at the address where the dirt was collected (Tr. 15-16). Investigator Albergo further testified that he observed the truck drive towards a transfer station where debris is deposited, which station is located down the block from where he stopped the vehicle (Tr. 16). Section 16-505(a) requires that the collected material constitute trade waste. Here, the evidence makes it more likely than not that the dirt, grass, and brick pavers observed in respondent s vehicle was trade waste. The unrebutted evidence is that Investigator Albergo saw respondent s driver transporting the material towards a transfer station, where debris is discarded, and the driver admitted to the investigator that he was transporting the material to a transfer station. Cf. Business Integrity Comm n v. All Green Lawn & Landscaping LLC, OATH Index No. 1107/13 (Feb. 7, 2013) (had driver stated that material in his truck was being transported to a specified address, it would have been insufficient to show the contents of the truck were being discarded, since it is as plausible that the soil was being used as landscaping material). Therefore, the evidence shows that dirt, grass, and brick pavers observed in respondent s truck were refuse or rubbish, which falls within the definition of trade waste. See Admin. Code 16-501(f). The evidence, however, does not satisfy other requirements of section 16-505(a). The proof does not support a finding that respondent was operating a business for the purpose of collecting, removing, and disposing of trade waste. Based upon respondent s name, S-Lawn Care, Inc., as well as the dirt, grass, and pavers that were observed in the vehicle, it is reasonable to infer that respondent is a commercial landscaping business. See Business Integrity Comm n v. Lanmarc Management Inc., OATH Index No. 879/13 at 2 (Dec. 20, 2012), adopted, Comm r Dec. (Dec. 31, 2012) (it is fair to infer from respondent s name that it is a commercial landscaping business). Moreover, although the NOV describes the material in respondent s truck as excavated dirt and bricks, there is no evidence to support a conclusion that the material constitutes construction and demolition debris being transported by a contractor, which would require an exemption from the Commission. Section 16-505(a) provides that a business solely engaged in the removal of waste materials resulting from building demolition, construction, alteration or excavation shall be exempt from the licensing provisions of section 16-505(a), provided they obtain an exemption issued by the Commission. Admin. Code 16-505(a) (Lexis 2012). A
- 7 - contractor who removes construction and demolition debris from a job site without a license or an exemption is in violation of section 16-505(a). Business Integrity Comm n v. All Green Lawn & Landscaping LLC, OATH Index No. 1107/13 at 3-4 (Feb. 7, 2013) (citing EdCia Corp. v. McCormack, 44 A.D.3d 991, 993-94 (2d Dep t 2007); DeCostole Carting, Inc. v. Maldonado, 35 A.D.3d 648, 649 (2d Dep t 2006); 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)). In this case, the photographs taken by the investigator show dirt mixed with grass and five brick pavers, which are typically used in landscaping. Moreover, during the hearing, the investigator indicated that he did not know how the material in the truck was generated, only the address of the location at which it was collected (Tr. 17-18). This evidence does not support finding that respondent was a contractor engaged in the removal of construction and demolition debris from a job site. Furthermore, there is no evidence that the waste was generated by a commercial establishment, as is required by section 16-505(a). Therefore, the evidence fails to establish respondent was operating a business for the purpose of collecting trade waste in violation of section 16-505(a). See All Green Lawn & Landscaping LLC, OATH Index No. 1107/13 at 3-4 (16-505(a) violation dismissed where evidence failed to established that landscaper with dirt in his truck was operating a business for the purpose of collecting trade waste); see also Tidiani, OATH 1189/13 at 3 (16-505(a) violation dismissed where evidence failed to establish that respondent with trade waste in his vehicle was operating a business for the purpose of collecting trade waste); Business Integrity Comm n v. Camara, OATH Index No. 1063/13 at 2-3 (Jan. 15, 2013) (16-505(a) violation dismissed where evidence established only the presence of trade waste inside a commercial vehicle). For the foregoing reasons, the evidence fails to establish that respondent violated section 16-505(a) and NOV TWC-9511 should be dismissed. FINDINGS AND CONCLUSIONS 1) Respondent was properly served with the Notice of Violation and Notice of Hearing and failed to appear at the scheduled hearing.
- 8-2) Petitioner s motion for leave to amend its pleadings to allege violation of section 16-505(b) of the Administrative Code in lieu of section 16-505(a) is denied due to lack of notice to respondent. 3) Petitioner failed to prove that respondent was operating a business for the purpose of collecting of trade waste under section 16-505(a) of the Administrative Code. RECOMMENDATION Violation number TWC-9511 should therefore be dismissed. April 10, 2013 Astrid B. Gloade Administrative Law Judge SUBMITTED TO: SHARI C. HYMAN Commissioner & Chair APPEARANCES: AMY BEDFORD, ESQ. Attorney for Petitioner No Appearance by or for Respondent