STATE OF NEW YORK
DEPARTMENT OF STATE
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In the Matter of
ROBERT W. SPEAR and
BUFFALO SECURITY CO., INC., DECISION ON MOTION
FOR A STAY AND AN
Respondents, EXTENSION OF TIME TO FILE A MEMORANDUM OF APPEAL
-and-
31 DOS APP 10
DAVID D. D’AMATO and
BUFFALO SECURITY AND INVESTIGATION, LLC,
Intervenor-Appellants,
-against-
DIVISION OF LICENSING SERVICES,
Complainant-Respondent.
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On June 8, 2010, Administrative Law Judge (ALJ) Scott NeJame rendered a decision finding that Robert W. Spear and Buffalo Security Co., Inc. violated General Business Law §§ 72, 81, 89-g(1), 89-g(5), 89-g(7), and 19 NYCRR §§ 174.6 (456 DOS 10, at p. 17). The ALJ, pursuant to General Business Law § 79, imposed a fine of $63,500 upon Spear and Buffalo Security Co., Inc. and directed that should they fail to pay the fine on or before July 31, 2010, “their licenses as a private investigator or watch, guard, or patrol agency, as well as the licenses of their successor company, including but not limited to, qualified David D’Amato and the company named Buffalo Security and Investment LLC, and any branch office licenses which may have been issued to them, shall be suspended effective August 1, 2010 until such time as the fine is paid in full” (456 DOS 10, at p. 17).
On July 12, 2010, the Department of State received a Notice of Appeal along with a Motion for a Stay and an Extension of Time to File a Memorandum of Appeal submitted by counsel to Buffalo Security and Investigations, LLC and David D. D’Amato (hereinafter “Appellants”). Therein, Appellants counsel states that he was recently retained, that he has not yet obtained a copy of the full hearing record, and requests a 90-day extension of time within which to submit a memorandum of appeal on behalf of Appellants as “purported successors in interest” under the terms of the ALJ’s decision. Appellants counsel also states that “D’Amato and BSI will appeal the Decision on the grounds that, inter alia, the Division did not establish, by substantial evidence, that they are ‘successors in interest’.”
On June 12, 2010, after reviewing Appellants’ submissions, Respondent Division of Licensing Services filed a memorandum in response to Appellants’ motion with the Secretary of State. Therein, Respondent consents to the issuance of a stay of the penalties imposed by the ALJ pending determination of this matter on appeal, but opposes Appellant’s request for a 90-day extension of time as excessive and suggests that a 30-day extension of time be granted. A memorandum of appeal filed with the Secretary of State must be based on evidence within the record on appeal (19 NYCRR § 400.2(k)). A party may request and be provided with a copy of the administrative hearing record. State Administrative Procedure Act § 302 provides:
2. The agency shall make a complete record of all adjudicatory proceedings conducted before it. For this purpose, unless otherwise required by statute, the agency may use whatever means it deems appropriate, including but not limited to the use of stenographic transcriptions or electronic recording devices. Upon request made by any party upon the agency within a reasonable time, but prior to the time for commencement of judicial review, of its giving notice of its decision, determination, opinion or order, the agency shall prepare the record together with any transcript of proceedings within a reasonable time and shall furnish a copy of the record and transcript or any part thereof to any party as he may request. Except when any statute provides otherwise, the agency is authorized to charge not more than its cost for the preparation and furnishing of such record or transcript or any part thereof, or the rate specified in the contract between the agency and a contractor if prepared by a private contractor. (Emphasis added)
Appellants have retained counsel and counsel has filed a Notice of Appeal and request for the full hearing record. Under such circumstances, an extension of time to review the record and file a memorandum of appeal is warranted. Appellants will be granted an extension of 45 calendar days from the date of this Decision within which to file a memorandum of appeal with the Secretary of State (see Matter of Allstate Private Car and Limousine Service, 67 DOS APP 09). The Office of Administrative Hearings is directed to provide Appellants’ counsel with a copy of the hearing record in this matter, as requested, in accordance with the provisions of the State Administrative Procedure Act.
Considering Respondent Division of Licensing Services’ consent to Appellants’ request for a stay after reviewing the material provided, it is not necessary to now determine whether Appellant has demonstrated a likelihood of success on the merits (see Matter of Lanyard, 6 DOS APP 10). Reviewing the submissions of both parties, it appears that the interest of the Department of State in the immediate enforcement of the penalty imposed by ALJ is outweighed by the burden such penalty will place on Appellant. Therefore, Appellant’s request for a stay of the penalty imposed pending a final decision on appeal shall be granted.
DETERMINATION
Appellants’ application seeking a stay of the penalties imposed by the ALJ pending final judgment on appeal and an extension of time to file their memorandum of appeal is hereby granted. Appellants are granted a 45-day extension of time to submit a memorandum of appeal in relation to this matter. The Office of Administrative Hearings is directed to take notice of Appellants’ request and to make available for inspection or for copying the hearing record in this matter to Appellants’ counsel, Ryan J. Mills, Esq., Brown & Kelly, LLP, 1500 Liberty Building, Buffalo, New York 14202. Pursuant to State Administrative Procedure Act section 302(2), the Office of Administrative Hearings “is authorized to charge not more than its cost fr the preparation and furnishing of such record or transcript or any part thereof.” This determination shall not be construed as a determination on the merits.
So ordered on: July 13, 2010 ______________________________
Daniel E. Shapiro, Esq.
First Deputy Secretary of State