Business Integrity Comm n v. Santos, Orfilio, Villatoro OATH Index No. 2516/14 (July 1, 2014) Violation No. TW

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1 Business Integrity Comm n v. Santos, Orfilio, Villatoro OATH Index No. 2516/14 (July 1, 2014) Violation No. TW In default hearing, evidence established that respondent collected trade waste without a license in violation of Administrative Code section (a). ALJ recommends $5,000 fine. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of BUSINESS INTEGRITY COMMISSION Petitioner - against - SANTOS, ORFILIO, VILLATORO Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, 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 Santos, Orfilio, Villatoro. Petitioner alleges in Notice of Violation ( NOV ) #TW that respondent collected trade waste without a BIC license in violation of Administrative Code section (a). At a hearing held on June 5, 2014, petitioner appeared by counsel. Upon respondent s failure to appear, proper proof of service of the charges and the notice of hearing were submitted (Pet. Exs. 1, 2). See 17 RCNY 1-02 (Lexis 2013). Such evidence established the jurisdictional prerequisites for finding respondent in default and the matter proceeded in the form of an inquest. ANALYSIS Respondent is charged with unlicensed activity under section (a) of the Administrative Code, pursuant to which it is illegal to operate a business for the purpose of the collection of trade waste from commercial establishments required to provide for the removal of

2 - 2 - such waste, or to remove or dispose of trade waste from such premises, or to engage in, conduct or cause the operation of such a business, without having first obtained a license from BIC. Admin. Code (a) (Lexis 2014). On March 14, 2014, BIC Investigator Frammosa issued an NOV to the driver of a vehicle registered to Santos, Orfilio, Villatoro, at the corner of Hamilton Avenue and Smith Street, Brooklyn, New York (Pet. Ex. 3). According to the NOV, at approximately 2:35 p.m., the investigator observed a 1999 Ford Econoline van with Maryland license plates transporting wood, boxes, and plastic bags, which the investigator believed constituted trade waste (Pet. Ex. 3). The driver of the vehicle stated that he was taking the contents of the van to IESI 1 at 548 Varick Street, Brooklyn (Pet. Ex. 3). The NOV and notice of hearing were served on respondent at the address indicated on the vehicle registration (Pet. Ex. 3K). Investigator Frammosa took photographs of the truck and its contents (Pet. Exs. 3A-3N). The photographs are of a van packed with a variety of items, primarily consisting of white plastic bags (whose contents are unknown) and cardboard boxes (whose contents are unknown). Although there is wood, it is not unfinished wood and it does not appear to be related to construction or demolition; the wood appears to be pieces of old furniture. There is what appears to be a radiator. I concluded that the items are household materials. No BIC issued license plates were affixed to the vehicle, as can be seen in photographs taken of the front and rear, and of the driver s and passenger s sides. Commission records reveal that respondent is not licensed or registered under BIC rules, and has not applied for a license (Pet. Ex. 3). Trade waste is defined in pertinent part as all materials or substances discarded or rejected by a commercial establishment required to provide for the removal of its waste, including construction and demolition debris. Admin. Code (f)(1) (Lexis 2014). The Commission contends that respondent is a corporate entity paid to remove garbage from a residence, and that such conduct constitutes the collection of trade waste within the meaning of section (a). The Commission cites EdCia Corp. v. McCormack, 44 A.D.3d 991, (2d Dep t 2007), DeCostole Carting, Inc. v. Maldonado, 35 A.D.3d 648, 649 (2d Dep t 2006), and Rapid Demolition Container Services, Inc. v. Maldonado, 21 A.D.3d 812 (1st Dep t 2005). All three cases upheld violations under section (a) where construction companies were found collecting construction and demolition debris from non-commercial sites 1 The NOV does not explain the meaning of the term.

3 - 3 - and transporting it for disposal. EdCia was transporting construction and demolition debris from a public project and from residential job sites. DeCostole carted away construction and demolition debris from residential sites and sites owned by not-for-profit entities. Rapid Demolition was in the business of removing construction and demolition debris generated at residential sites. These cases held that a construction company removing its own self-generated construction and demolition debris satisfied the commercial establishment requirement in the statute. See Business Integrity Comm n v. Popular Pioneer Contracting, Inc., Violation No. TW-7492, Dep t of Consumer Affairs Appeal Determ. at 2 (July 12, 2012). Deferring to BIC s interpretation of the term commercial establishment set forth in section (a), the courts found that the term refers to the entity that generates the waste, rather than the physical site from which the waste is removed. See EdCia, 44 A.D.3d at 993; Rapid Demolition, 21 A.D.3d at 812. Here, petitioner seeks to extend the analysis outside of the context of construction and demolition. I find that the debris being carted away by respondent is refuse, though not construction or demolition debris. In light of the driver s admission to an intention to dispose of the van s contents, petitioner asserts that the driver s statement that he collected the contents of the van from a job crucially establishes that such collection is part of his corporate business. Thus, the evidence establishes a prima facie case that respondent is in the business of collecting trade waste from commercial establishments, even though there is no evidence that the location from which the debris was transported is commercial. Respondent did not appear to contest any part of petitioner s case. See Business Integrity Comm n v. Camara, Violation No. TW-8743, Comm r/chair Dec. (Apr. 16, 2013) (at an inquest in which respondent failed to appear, the NOV and photographs established prima facie case that respondent transported a truck load of cardboard for a commercial purpose). I therefore conclude that petitioner established a prima facie violation of the prohibition against unlicensed trade waste activity set forth in section (a) of the Administrative Code. FINDINGS AND CONCLUSIONS 1. Respondent was properly served with the Notice of Violation and notice of hearing.

4 Petitioner established that respondent was operating a business for the purpose of collecting trade waste from commercial establishments without a license, in violation of section (a) of the Administrative Code. RECOMMENDATION Section (b) of the Administrative Code provides for a civil penalty up to $5,000 for each day respondent violates the licensing requirement of section (a). See also 17 RCNY 1-04(b) (Lexis 2014). Since respondent failed to appear for the hearing and no mitigation was offered, a $5,000 penalty seems appropriate. I therefore recommend that respondent be fined $5,000 for the violation established here. Respondent should be aware that it may file with the Commission a motion to vacate this default as provided for in section 1-45 of this tribunal s rules of practice. 48 RCNY 1-45 (Lexis 2013). As explained in the notice of hearing, respondent has the right to be represented by counsel or any other representative. A motion to vacate a default must show: (1) a reasonable excuse for respondent s failure to appear, and (2) a meritorious defense to the NOV. See Police Dep t v. Serrano, OATH Index No. 2064/10, mem. dec. at 2 (Mar. 12, 2010); Dep t of Correction v. Heyward, OATH Index No. 2041/00 at 4 (July 18, 2000); Transit Auth. v. O Connell, OATH Index No. 1076/91, mem. dec. at 3 (Nov. 8, 1991). Such a motion must also be made as promptly as possible and, once this Report and Recommendation has been issued, must be addressed to the deciding authority, which is the Commissioner of the Business Integrity Commission, 100 Church Street, 20th Floor, New York, New York See 48 RCNY 1-45, 1-52 (Lexis 2013). July 1, 2014 Tynia D. Richard Administrative Law Judge SUBMITTED TO: DAN BROWNELL Commissioner & Chair

5 - 5 - APPEARANCES: AMY BEDFORD, ESQ. Attorney for Petitioner No Appearance by or for Respondent