TPE Ventures, Inc. v Nassau County Off. of Consumer Affairs
Annotate this CaseDecided on May 24, 2017
Supreme Court, Nassau County
TPE Ventures, Inc. d/b/a Lawn Doctor of Great Neck, Manhasset, Port Washington, Petitioner,
against
Nassau County Office of Consumer Affairs, Respondent.
000989/17
David C. Nevins
Attorney for the Plaintiff
500 North Broadway, Suite 128
Jericho, New York 11753
Nassau County Attorney
Attorneys for the Defendant
1 West Street, Executive Building
Mineola, NY 11501
Randy Sue Marber, J.
Papers Submitted:
Order to Show Cause x
Affirmation in Opposition x
Reply Affirmation x
The Petitioner, TPE VENTURES, INC. d/b/a LAWN DOCTOR OF GREAT NECK, MANHASSET, PORT WASHINGTON ("TPE"), filed an Order to Show Cause and Verified Petition seeking a judgment pursuant to CPLR § 7803, granting the following relief: (i) reversing the Hearing Decision of the Respondent, NASSAU COUNTY OFFICE OF CONSUMER AFFAIRS (the "County"), on the grounds that such decision was arbitrary and capricious and an abuse of discretion; (ii) issuing a Temporary Restraining Order and Permanent Injunction against the County; (iii) enjoining the County from requiring the Petitioner to obtain a home improvement license; (iv) permitting the Petitioner to operate his business in the County without a home improvement license; (v) directing the County to refund any fine paid by the Petitioner [*2]to the County pursuant to the Hearing Decision dated December 6, 2016; and (vi) awarding attorney's fees and costs incurred by the Petitioner associated with this action. Upon the papers submitted, the instant Petition which raises an issue of first impression, is determined as hereinafter provided.
The Petitioner, TPE, is the owner and operator of a Lawn Doctor franchise with a principal place of business located at 65 East Jeffryn Boulevard, Deer Park, New York 11729. On or about October 24, 2016, the County issued a Notice of Violation to TPE under alleging that it was in violation of Local Law 6-1970 §21-11.2 in that TPE was operating a home improvement business in Nassau County without the appropriate License pursuant to local law (See Notice of Violation annexed to Petition as Exhibit "A"). The Notice of Violation stemmed from evidence acquired by the County in connection with a consumer complaint against the Petitioner, TPE.
On November 11, 2016, the County held a hearing at which evidence was presented in connection with the Notice of Violation. During the hearing, the County alleged that TPE performed "core aeration" to a residential home which involves alteration of the earth upon the land and thus falls under the definition of "home improvement" as set forth by the Nassau County Local Law. While the Petitioner does not dispute that a part of its business involves core aeration, it alleges that none of the services performed by TPE fall within any defined categories of "home improvement" under the Nassau County Administrative Code ("NCAC").
Pursuant to the NCAC, Chapter 21, Title D-1, Section 21-11.1, Subdivision 3, "Home Improvement" includes, in pertinent part, "gardening/landscaping, when the gardener/landscaper uses his/her own equipment in the conduct of his/her business and uses his/her vehicle to transport such equipment." The Petitioner claims it is not a landscaper or landscape gardener. Rather, the Petitioner alleges that its services include "fertilization, weed control, insect prevention, disease control, tree and shrub applications, seeding and aeration." The Petitioner further alleges that it does "not engage in the development of any plantings or gardens or grounds but only the maintenance of lawns, trees and shrubs with respect to weed and pest prevention." (See Verified Petition at ¶¶ 11-12). The Petitioner maintains that it merely applies fertilizers and weed control on grass, trees and shrubs, but does not alter any land at a residential home.
The Petitioner submits that the process of core aeration "does not alter the lawn or the land adjoining a residential home" but "merely punctures small holes in the ground to allow air and water into the ground." (Id. at ¶¶13-14). As such, the Petitioner contends that it does not require a home improvement license to conduct its business.
The Petitioner further alleges that its services fall within one of the exceptions to the Local Law requiring a license, which provides, in pertinent part, that "no contractor's license shall be required of any person who is required by state or local law to attain standards of competency or experience as a prerequisite to engaging in such craft or profession and who is acting exclusively within the scope of the craft or profession for which he is currently licensed pursuant to such other law." [See Administrative Code of Nassau County, Chapter 21, Title D-1, Section 21-11.10]. In this regard, the Petitioner claims that it is required to be licensed by the State of New York, specifically the Department of Environmental Conservation. The Petitioner submits that the exception is application to its business since TPE is a New York State Certified Pesticide Applicator since 2008 and registered with New York State as a pesticide business as part of the license's requirements.
Based on the foregoing, the Petitioner seeks reversal of the Hearing Decision as arbitrary and capricious on the grounds that the Hearing Officer's determination was not based upon the facts presented.
Notably, the Petitioner fails to annex a copy of the Hearing Decision which it seeks to attack, nor does the Petitioner state in its moving papers what proof, if any, was presented at the Hearing.
In the Affirmation in Opposition and Objections in Point of Law, the Respondent contends that the Petitioner performs at least two distinct acts: application of pesticides and performance of core aeration. The Hearing Officer determined that core aeration, which involves removing small pieces of earth allowing air, water and nutrients to penetrate grass roots, is an alteration of the earth upon the land of TPE's customers and thus falls under the definition of "home improvement" as defined by NCAC §21-11.1. The Respondent proffered the Hearing Decision which provides, in pertinent part, that the core aeration performed by TPE involves alteration of the earth upon the land of its customers and thus falls under the definition of "home improvement" (See Hearing Decision dated 12/6/16, annexed to Respondent's Opposition as Exhibit "A"). The Respondent submits that the Hearing Officer properly determined that core aeration is "gardening or landscaping" as defined by NCAC — not pesticide application. In sum, the Respondent argues that the determination was not arbitrary or capricious, nor was it contrary to law. The Respondent further argues that, in the event the language in the NCAC is ambiguous, deference should be afforded to the agency's determination.
As to the Petitioner's license for pesticide application issued by the State of New York, the Respondent contends that the Petitioner never alleges that core aeration falls within the scope of its license. Since core aeration and pesticide application are two distinct processes, the Respondent argues that the exception is not applicable.
In reply, the Petitioner objects to the characterization of core aeration and pesticide application as "separate and distinct" activities. The Petitioner alleges that core aeration is a "necessary component to the effective delivery of pesticides and fertilizers." In support, the Petitioner proffers an article relating to the benefits of core aeration. However, this evidence was submitted for the first time on reply and no proof exists that such evidence was submitted to the Hearing Officer whose decision the Petitioner now challenges as arbitrary and capricious.
Also for the first time on reply, the Petitioner alleges that it submitted proof of the following at the Hearing: (i) that the Petitioner is a certified pesticide applicator and registered with New York State; (ii) the training requirements in order to comply with the New York State license; (iii) the Petitioner's general liability, vehicle and worker's compensation insurance. The Petitioner further argues that it currently not only complies with, but exceeds, the requirements of the NCAC.
Lastly, the Petitioner contends that requiring it to obtain a license does not serve the legislative intent of the NCAC, which is to safeguard and protect homeowners against abuses on the part of home improvement contractors by regulating the home improvement, remodeling and repair business.
Legal Analysis:
Where, as here, a proceeding seeks judicial review of an administrative action, "it is settled that * * *, the court may not substitute its judgment for that of the agency responsible for [*3]making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious" (Cohen v. State, 2 AD3d 522 [2d Dept. 2003] quoting Flacke v. Onondaga Landfill Sys., 69 NY2d 355 [1987], at 363). Thus, even assuming differing "conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency where the agency's determination is supported by the record" (Cohen v. State, 2 AD3d 522 [2d Dept. 2003], supra at 525). The standard of whether a given determination is arbitrary and capricious "requires the court to assess whether the action in question was taken 'without * * * regard to the facts'" (County of Monroe v. Kaladjian, 83 NY2d 185, 189 [1994], quoting Matter of Pell v. Board of Educ., 34 NY2d 222, 231 [1974]).
As noted by the Petitioner, in order to obtain a preliminary injunction, the movant has the burden of demonstrating (1) likelihood of ultimate success on the merits; (2) irreparable injury if provisional relief is withheld; and (3) a balancing of the equities in its favor (See Aetna Insurance Co. v. Capasso, 75 NY2d 860 [1990]).
The Petitioner believes it will succeed on the merits because the Hearing Decision dated December 16, 2016 was "taken without regard to the facts". The Petitioner alleges that it will be irreparably harmed "if it is prohibited from operating its business in Nassau County" because the Respondent is requiring that Petitioner obtain a Nassau County home improvement license in order for it to continue operating its business in Nassau County and will be at risk of a takeover by its competitors. Lastly, the Petitioner contends that the equities favor the Petitioner based on a public policy argument. To this point, the Petitioner contends that the public policy of requiring a home improvement license, which is to deter and prevent unscrupulous contractors from taking advantage of residential customers, is not served by requiring TPE to obtain a home improvement license.
Based on the record before this Court and having carefully reviewed the relevant provisions of the NCAC, the Court finds that the Petitioner failed to meet its burden to establish that the Hearing Officer's decision was arbitrary and capricious. Preliminarily, the Court notes that the Petitioner failed to proffer the determination that it seeks to challenge. It is axiomatic that when a determination is challenged, a record must be presented which will enable the court to review the determination (Newbrand v. City of Yonkers, 285 NY 164 [1941]).
Notwithstanding, a review of the Hearing Decision — submitted by the Respondent — and the papers submitted by the parties demonstrate that the administrative agency's determination has a rational basis. The NCAC provides that the definition of home improvement "means repair, maintenance, replacement remodeling, alteration, conversion, modernization, or addition to any land or building, or that portion thereof, which is used as a private residence or dwelling place for not more than three families, and other improvements to structures or upon land which is adjacent to a dwelling and shall include, but not be limited to gardening/landscaping."
In its Verified Petition, the Petitioner admits that "core aeration involves perforating the soil with small holes to allow air, water and nutrients to penetrate the grass roots. This helps the roots grow deeply and produce stronger, more vigorous lawn." In similar fashion, the Hearing Officer determined that core aeration "involves alteration of the earth".
The cornerstone of this Court's review of the County's determination is one of rationality. The Hearing Officer's conclusion that the act of core aeration alters the land of the Petitioner's customers and thus requires a home improvement license issued by Nassau County is supported by a rational basis and is reasonable. Judicial function is exhausted when there is found to be a [*4]rational basis for conclusions approved by an administrative body.
The Petitioner does not dispute that it performs the act of core aeration, nor does its interpretation of the act differ from that of the County. The Petitioner appears to disagree with the fact that the County is requiring a license for core aeration when it is already required to be licensed by the State. However, as the Respondent correctly points out, the Petitioner neglects to establish by admissible proof that core aeration falls within the scope of the license issued by the New York State Department of Environmental Conservation. In any event, the administrative agency's interpretation of "landscaping/gardening" contained within its own regulations is entitled to great deference (Arif v. New York City Taxi and Limousine Commission, 3 AD3d 345, 346 (1st Dept. 2004).
Moreover, the Petitioner is not entitled to a preliminary injunction. The arguments proffered in support of this relief is in essence a challenge to the appropriateness of the regulation itself, and not the arbitrary and capricious nature of the Hearing Decision. In such case, the instant Article 78 Petition is not the proper avenue to assert this challenge.
The Court further disagrees that the Petitioner would suffer irreparable harm in the event the Court upholds the Hearing Officer's determination. At the initial presentment of the Petitioner's Order to Show Cause seeking a Temporary Restraining Order, upon the Court's inquiry, the Petitioner confirmed that the cost of acquiring a Nassau County home improvement license is approximately $1,000. As boasted by the Petitioner, it is the second largest Lawn Doctor in Nassau County. In light of this information, requiring a license of minimal cost would not impose a significant financial burden on the Petitioner. Nor is the Petitioner "prohibited" from operating its business since only a portion involves core aeration.
The Court finds that the Hearing Decision requiring the Petitioner to procure a Nassau County home improvement license to perform core aeration should not be disturbed.
The remaining relief requested by the Petitioner is denied as moot.
Accordingly, it is hereby
ORDERED, that the Order to Show Cause filed by the Petitioner seeking a judgment pursuant to CPLR § 7803: (i) reversing the Hearing Decision of the Respondent, NASSAU COUNTY OFFICE OF CONSUMER AFFAIRS (the "County"), on the grounds that such decision was arbitrary and capricious and an abuse of discretion; (ii) issuing a Temporary Restraining Order and Permanent Injunction against the County; (iii) enjoining the County from requiring the Petitioner to obtain a home improvement license; (iv) permitting the Petitioner to operate his business in the County without a home improvement license; (v) directing the County to refund any fine paid by the Petitioner to the County pursuant to the Hearing Decision dated December 6, 2016; and (vi) awarding attorney's fees and costs incurred by the Petitioner associated with this action, is DENIED.
This decision constitutes the decision and order of the Court.
DATED: May 24, 2017
Mineola, New York
Hon. Randy Sue Marber, J.S.C.
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