CADDNAR
[CITE: DNR v. Richardson, 15 CADDNAR 126 (2020)]
Cause #: 17-102F
Caption: DNR v. Reichardson
Administrative Law Judge: D. Wilson
Attorneys: I. Boyko for Petitioner; pro se Respondent
Date: October 27, 2020
[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
Procedural History and Jurisdiction:
1. On June 10, 2020, the Department of Natural Resources (Department), through its Division of Forestry, by Counsel Ihor N. Boyko, filed with the Natural Resources Commission (Commission) its “Complaint to Impose Civil Penalties for Violations of Timber Buyer Licensing Law” (Complaint) against the Respondent, Dillon J. Richardson (Richardson).
2. The Department’s Complaint alleged that Richardson engaged in the business of buying timber while not registered as a timber buyer. The Complaint avers that Richardson engaged in business as a timber buyer on twelve (12) occasions without a registration certificate required by IC 25-36.5-1-2(a) and 312 IAC 14-3-1(a). The Complaint cites its authorization under IC 25-36.5-1-13.5(1) and 312 IAC 14-4-3(a) and (b)(1) to file a Complaint to impose a penalty of $10,000 for engaging in business as a timber buyer without securing a registration certificate.
3. The Department’s Complaint alleged that Richardson engaged in the business of buying timber as an agent to purchase timber on eight (8) occasions without having a valid agent’s license and card required by IC 25-36.5-1-15. The Complaint cites its authorization under IC 25-36.5-1-13.5(2) and 312 IAC 14-4-3(a) and (b)(2) to file a Complaint to impose a penalty of $10,000 for acting as the agent of a timber buyer without holding a valid agent’s license.
4. The Department seeks to have the Commission impose a civil penalty of two hundred thousand Dollars ($200,000) for violations of IC 25-36.5-1-15 and 312 IAC 14 by Richardson, pursuant to IC 4-21.5-3-8.
5. The Department, through its Division of Forestry is responsible for administering IC 25-36.5, commonly referred to as the “Timber Buyers Statute”, and 312 IAC 14, pertaining to the licensure and regulation of timber buyers and timber buyers’ agents. IC 25-36.5-1-2 and 312 IAC 14-1-2.
6. Procedurally this matter is governed by the Administrative Orders and Procedures Act (AOPA), IC 4-21.5, and administrative rules adopted by the Commission at 312 IAC 3.
7. The Commission is the “ultimate authority” with respect to substantive matters controlled by IC 25-36.5 and 312 IAC 14. 312 IAC 14-1-2(d).
8. Dawn Wilson was appointed to preside as the Administrative Law Judge (ALJ).
9. On June 18, 2020, the ALJ issued a “Notice of Prehearing Conference”, scheduling a Prehearing Conference to be heard on July 9, 2020. Richardson failed to appear at the scheduled Prehearing Conference.
10. ALJ Wilson issued a “Notice of Proposed Default” (Proposed Default) against the interests of Richardson on July 10, 2020.
11. Following Richardson’s failure to respond to the Proposed Default, pursuant to 312 IAC 3-1-9(c), the ALJ issued a “Final Order of Default and Notice of Action Necessary to Complete Proceeding” (Final Default) on July 24, 2020. The Final Default allowed an opportunity for the Department, under IC 4-21.5-3-26, to provide evidence in written form on or before September 25, 2020, in support of the penalty it requested within its Complaint.
12. The Commission possesses jurisdiction over the persons of the parties and the subject matter of this proceeding.
Findings of Fact[1]:
13. Evidence presented by the Department is uncontested.
14. The Department’s Division of Forestry records do not show that Richardson is currently, registered as a timber buyer. The Department’s records also do not show that Richardson was ever registered as a timber buyer. Complaint, pgs. 1-2 and Petitioner DNR’s Submission of Written Evidence to Complete Proceeding, Affidavit of Indiana Conservation Officer Matthew Garringer (Evidence-Affidavit), Attachments.
15. The Department’s Division of Forestry records do not show that Richardson has, or has ever obtained, a timber agent license. Complaint, pgs. 1-2.
16. On February 13, 2008, the Franklin Circuit Court, in case number 24C01-0711-CM-1003 entered a finding and judgment against Richardson pursuant to a plea agreement for purchasing timber without a license. Id.at Ex. A.
17. On July 22, 2019, a plea agreement was submitted by Richardson to the Wayne Superior Court in cases 89D02-1810-F6-000684 and 89D02-1902-F6-000104. Id.at Ex. J.
a. On December 4, 2019, in case number 89D02-1810-F6-000684, the Wayne Superior Court accepted the guilty plea submitted by Richardson, on charges filed pursuant to IC 25-36.5-1-10(1), for Richardson’s actions as an unregistered timber buyer. Id.at Ex. K.
b. On December 4, 2019, in case number 89D02-1902-F6-000104, the Wayne Superior Court accepted the guilty plea submitted by Richardson, on charges filed pursuant to IC 25-36.5-1-10(1) alleging that Richardson engaged “in business as a timber buyer without securing a registration, and did so with a prior conviction for an unrelated violation under I.C. 25-36.5-10, contrary to Indiana law.” Id.at Ex. L and Evidence-Affidavit, Attachments.
18. On February 21, 2012, the Fayette Superior Court, in case number 21D01-1011-FD-000681, accepted a guilty plea by Richardson for charges of theft and acting as a timber agent without a license. Richardson’s guilty plea, as accepted by the Court, included victim restitution in the amount of $15,961. Id.at Ex. D.
19. On December 4, 2019, the Franklin Circuit Court, in case number 24C02-1811-F6-001191, approved Richardson’s guilty plea on four counts, pursuant to IC 25-36.5-1-10, of acting as a timber buyer without a license and four counts, pursuant to IC 25-36..5-1-15, for acting as a timber agent without a license. The Court’s Finding and Judgment also included victim restitution in the amount of $1,324. Id.at Ex. C
20. On February 1, 2012, Richardson was charged in the Franklin Circuit Court, in case number 24C02-1202-FD-00140 with violating IC 25-36.5-1-10, based on allegations that on or about May 14, 2011, he did “unlawfully, knowingly or intentionally engage in the business as a timber buyer without being registered to purchase timber.” Id.at Ex B In addition, in that case, Richardson was charged pursuant to IC 25-36.5-1-10 with a felony for a prior unrelated conviction in case number 24C01-0711-CM-1003. Richardson was also, in case number 24C02-1202-FD-00140, pursuant to IC 25-36.5-1-15, charged with acting as a timber agent without having obtained a license as an agent. Id.
21. Pursuant to a plea agreement in case number 24C02-1112-FD-00588, the Franklin Circuit Court dismissed the charges filed against Richardson in cases 24C02-1202-FD-00140 and 24C02-1202-FD-00141. No charging information or probable cause affidavit in case number 24C02-1112-FD-00588 was made available in this proceeding. Id.at Ex. B-1.
22. On July 16, 2014, the Fayette Superior Court, in case number 21D01-1305-MA-000337, dismissed charges filed against Richardson pursuant to IC 25-36.5-1-10(1) for engaging in business as a timber buyer without securing a registration. No information concerning the underlying circumstances that may have resulted in the charges was made available in this proceeding. Id.at Ex. E.
23. On January 14, 2019, charges were filed in the Fayette Superior Court, in case number 21D01-1910-F6-000772, pursuant to IC 25-36.5-1-10(1), against Richardson alleging that he acted as an unregistered timber buyer with a prior unrelated conviction and acted as a timber agent without a license pursuant to IC 25-36.5-1-15(j). In addition, charges for felony theft by Richardson were filed, pursuant to IC 35-43-4-2(a). Information concerning the underlying events that may have resulted in the charges was not made available in this proceeding. No information concerning any case resolution was provided in this proceeding. Id.at Ex. I.
[VOLUME 15, PAGE 127]
24. On February 18, 2019, charges were filed in the Fayette Circuit Court in case number 21D01-1902-F5-000141 for charges related to racketeering, pursuant to IC 35-45-6-2(1), theft of timber from two separate victims, pursuant to IC 35-43-4-2(a), and engaging in business as a timber buyer without securing a registration pursuant to IC 25-36.5-1-10(1). The charging information states that the alleged underlying events occurred in 2017 and 2018 for timber theft. Additional information concerning the underlying events that may have resulted in the charges was not made available in this proceeding. No information concerning any case resolution was provided in this proceeding. Id.at Ex. G.
25. On March 18, 2019, charges were filed, pursuant to IC 25-36.-5-1-15(j), against Richardson, in the Fayette Superior Court, in case number 21D01-1903-CM-000199 alleging that Richardson acted as a timber agent without a license. Information concerning the underlying events that may have resulted in the charges was not made available in this proceeding. In addition, no information concerning any case resolution was provided in this proceeding Id.at Ex. F.
26. On October 17, 2019, charges were filed in the Fayette Superior Court, in case number 21D01-1910-CM-000769, pursuant to IC 25-36.5-1-15(j), alleging that Richardson acted as an agent for a timber buyer without securing a license. Information concerning the underlying events that may have resulted in the charges was not made available in this proceeding. In addition, no information concerning any resolution for the case was provided in this proceeding Id.at Ex. H.
27. Matthew Garringer (Garringer) has been employed by the Department as a Conservation Officer for nine years. Garringer has been previously involved in investigations to determine violations of the law for the State of Indiana that apply to timber buyers and timber buying. Evidence-Affidavit, pg. 1.
28. Garringer investigated a complaint in Wayne County for allegations that Richardson came to the house of timber owners in 2018 and negotiated a price of $23,000 to cut 93 trees without the timber buyer’s registration required by law. Garringer reported events he discovered during his investigation within an Affidavit of Probable Cause that was filed in the Wayne Superior Court in case number 89D01-1902-F6-000104[2]. Evidence- Affidavit, Attachments.
29. On January 5, 2019, as a part of his investigation, Garringer interviewed Richardson at Richardson’s home. After discussing Richardson’s efforts to arrange for a timber sale, Richardson made the following statements to Garringer:
Richardson then said he was probably going to be sitting in jail. When asked why he said that, he responded because “as far as I understand, I shouldn’t be doing this shit.” When asked why he did it, he stated “I have to make a fucking living somehow.” Richardson was informed there are several ways to make a living and he responded “I’ve done this for 17 years, I’m not quitting. I can’t.”
….
Richardson then asked about other jobs he had been doing and asked if what he was doing was illegal. He stated he has cut timber in Indiana and Ohio and sold timber both in Indiana and Ohio and got paid a work bill. He was again informed that when he goes to people and offers money, that action is illegal. Richardson asked if we could tell our boss to give him a little time to get his timber license figured out and in return we could forget about this one. We informed him that we have to report our findings….
Id.
30. The evidence presented supports a conclusion that Richardson acted, on multiple occasions, with deliberate and intentional effort to perform as a timber buyer without the required registration, despite his knowledge that registration is necessary under the law.
31. The evidence presented supports a conclusion that Richardson acted with a deliberate and intentional effort to perform as a timber agent without a required license on multiple occasions.
32. In 2019, Richardson acknowledged that he had performed as an unregistered timber buyer or an unlicensed agent for a term of 17 years, not for an isolated incident.
33. The number of times that Richardson has been charged and the number of times he pleaded guilty to charges filed pursuant to IC 25-36.5, as both a timber buyer and a timber agent reveals his pattern of violating IC 25-36.5.
Conclusions of Law:
De novo review and Burden of Proof
34. As the “ultimate authority” the Commission conducts this proceeding de novo. IC 4-21.5-3-14(d)
35. De novo review requires the Commission and its ALJ to consider and give proper weight to the evidence rather than deferring to the original determination of the Department. Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 CADDNAR 317 (2011), applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).
36. “At each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request….” IC 4-21.5-3-14(c).
37. If an agency seeks the imposition of a sanction, it has the burden of persuasion and the burden of going forward (sometimes collective referred to as the “burden of proof”). Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. App. 1991).
38. In this case, the Department has the burden of proof to provide sufficient evidence to support one or more violations and any appropriate civil penalty.
Violation
39. A “timber buyer” is “a person engaged in the business of buying timber from timber growers for sawing into lumber, processing, or resale, but does not include a person who occasionally purchases timber for sawing or processing for his own use and not for resale.” IC 25-36.5-1-1 and 312 IAC 14-2-10.
40. No person may “engage in the business of timber buying in the state of Indiana without a registration certificate issued by the department.” IC 25-36.5-1-2(a) and 312 IAC 14-3-1(a).
41. To be “engaged in the business of buyer timber” means either:
(1) The exertion of control over the sale of timber as demonstrated by any of the following occurrences:
(A) The purchase of timber directly or through an agent from a timber grower.
(B) The selection of which or how much timber is cut. This clause does not include a person employed by a timber grower to provide technical expertise concerning timber valuation or management.
(C) The selection of a person to act as a feller, skidder, or hauler.
(D) The direction of timber to a particular market.
(2) Negotiation with a timber grower for the right to purchase timber.
312 IAC 14-2-8.
42. “A person who: (1) engages in business as a timber buyer without securing a registration or in violation of this chapter…commits a Class A misdemeanor….” IC 25-36.5-1-10(1).
43. A violation of IC 25-36.5-1-10(1) is also a violation of IC 25-36.5-1-2(a).
44. A timber “agent” means an individual who represents a timber buyer in effecting or attempting to effect purchases of timber. IC 25-36.5-1-1 and 312 IAC 14-2-2.
45. “An individual who acts as the agent of a timber buyer must have and agent’s license. IC 25-36.5-1-15(a). An agent’s license may be granted only… at the written application of the timber buyer who the agent is to represent; and under that timber buyer’s registration certificate.” IC 25-36.5-1-15(b).
46. As asserted by the Department and uncontroverted by the evidence, Richardson does not currently have, nor has he ever had, a timber buyer’s registration or a timber agent license.
47. "A valid guilty plea is a confession of guilt made directly to a judicial officer and necessarily admits the incriminating facts alleged." McWhorter v. State, 945 N.E.2d 1271, 1273 (Ind. App. 2011) trans. denied.
48. Richardson, by his own confession, was convicted following multiple plea agreements that were accepted by judicial officers in Franklin County, Fayette County and Wayne County, as follows:
a. In 2008, the Franklin Circuit Court, in case number 24C01-0711-CM-1003, for purchasing timber without a license.
b. In 2012, the Fayette Superior Court, in case number 21D01-1011-FD-000681, for acting as a timber agent without a license.
c. In 2019, the Wayne Superior Court, in case numbers 89D02-1810-F6-000684, for charges filed pursuant to IC 25-36.5-1-10(1) for Richardson’s actions as an unregistered timber buyer.
d. In 2019, the Wayne Superior Court, in case number 89D02-1902-F6-000104, for charges filed pursuant to IC 25-36.5-1-10(1) for Richardson’s actions as an unregistered timber buyer.
e. In 2019, the Franklin Circuit Court, in case number 24C02-1811-F6-001191, for four counts, pursuant to IC 25-36.5-1-10, of acting as a timber buyer without a license and four counts, pursuant to IC 25-36..5-1-15, of acting as a timber agent without a license.
49. Acceptance of Richardson’s guilty pleas by judicial officers supports seven violations of IC 25-36.5-1-10(1) and five violations of IC 25-36.5-1-15 by Richardson.
50. In case number 21D01-1011-FD-000681[3], Richardson pleaded guilty to theft. The Court’s order on Richardson’s guilty plea included victim restitution in the amount of $15,961. Insufficient evidence is available to determine if the underlying facts that resulted in his guilty plea support a conclusion that Richardson was engaged as an unregistered timber buyer or performing as an unlicensed timber agent, in violation of IC 25-36.5.
51. The Department’s Complaint referenced multiple criminal cases in which Richardson was identified as a defendant, that are now dismissed.
a. The Franklin Circuit Court dismissed charges in case numbers 24C02-1202-FD-00140 and 24C02-1202-FD-00141 pursuant to a plea agreement in case number 24C02-1112-FD-00588.
b. The Fayette Superior Court dismissed case number 21D01-1305-MA-000337.
For the circumstances underlying these dismissed cases, a determination concerning one or more violations by Richardson must be supported by the evidence presented in this proceeding. Insufficient evidence concerning the underlying events for the two dismissed cases and the guilty plea is available to support one or more violations of IC 25-36.5-1-10(1) or 25-36.5-1-15 by Richardson.
[VOLUME 15, PAGE 128]
52. The Complaint referenced pending criminal charges against Richardson in Fayette County, Indiana for acting as an unlicensed timber agent, an unregistered timber buyer, racketeering and theft. A determination concerning one or more violations of IC 25-36.5-1-10(1) or 25-36.5-1-15 by Richardson for the underlying facts relevant to those cases must be supported by the evidence presented in this proceeding.
a. Evidence presented in this proceeding is not sufficient to determine that Richardson acted as a timber agent or as a timber buyer, by exerting control over the sale of timber, for the underlying facts in case number 21D01-1910-F6-000772.
b. The charging information in case 21D01-1902-F5-000141 provided victim information and alleged the unauthorized control over the timber of two alleged victims. However, insufficient evidence is available to determine if the situations represent Richardson’s exertion of control over the “sale” of timber in violation of IC 25-36.5-1-10(1).
c. Evidence presented in this proceeding is not sufficient to determine that Richardson performed as an unlicensed timber agent in violation of IC 25-36.5-1-15 for the underlying facts in case numbers 21D01-1903-CM-000199 or 21D01-1910-CM-000769.
53. Other than the violations noted in paragraph 49 of this decision, evidence presented by the Department does not support the Department’s allegations that Richardson violated IC 25-36.5.
Civil Penalty
54. The Department is authorized to file a complaint with the Commission seeking to impose a civil penalty upon a person who violates IC 25-36.5-1-13.5. The Department did file a complaint seeking to impose a civil penalty against Richardson that initiated this proceeding.
55. The maximum penalty that can be imposed is identified in IC 25-36.5-1-13.5, as follows:
a) The division of forestry may file a complaint under IC 4-21.5-3-8, with the division of hearings, which seeks to impose a civil penalty against a person who violates IC 25-36.5-1 or this article.
(b) A civil penalty imposed under this section may not exceed the following limits:
(1) For engaging in business as a timber buyer without securing a timber buyer's registration certificate, ten thousand dollars ($10,000).
(2) For engaging as an agent of a timber buyer without holding an agent's license, ten thousand dollars ($10,000).
(3) For any other violation, one thousand dollars ($1,000).
IC 25-36.5-1-13.5. See also 312 IAC 14-34-3(b).
56. The “presumptive civil penalty to be assessed … is one-half (1/2) of the amounts for the violations described…” which would be five thousand dollars ($5,000) per violation. 312 IAC 14-4-3(c).
57. The presumptive civil penalty is subject to mitigating and aggravating factors. 312 IAC 14-4-3.
58. Mitigating factors required to be considered are stated as follows:
(1) The person assessed a civil penalty has not previously been adjudicated by the commission or a court to have violated IC 25-36.5-1 or this article.
(2) The violation appears to have been unintentional.
(3) The violation was an isolated occurrence.
(4) No timber grower has suffered harm as a result of the violation or, if harm was suffered, full restitution was tendered promptly.
(5) Significant environmental harm was not suffered as a result of the violation.
312 IAC 14-4-3(d).
59. Aggravating factors to be considered include the following:
(1) The person assessed a civil penalty has previously been adjudicated by the commission or a court to have violated IC 25-36.5-1 or this article.
(2) The violation appears to have been intentional.
(3) A pattern of violations has occurred.
(4) A timber grower has suffered harm as a result of the violation, and full restitution for the harm has not been tendered.
(5) Significant environmental harm was suffered as a result of the violation, and the harm has not been mitigated pursuant to a plan approved by the division director.
312 IAC 14-4-3(e).
60. The Department seeks one or more civil penalties against Richardson for the maximum amount of ten thousand dollars ($10,000) for each violation. The Department identified 12 occurrences by which Richardson engaged in business as a timber buyer without securing a registration in violation of IC 25-36.5-1-2(a) and 312 IAC 14-3-1(a) and eight occurrences of violating IC 25-36.5-1-15 by acting as an agent without a valid agent’s license.
61. The evidence provided supports twelve violations of IC 25-36.5 for civil penalty assessment.
62. In support of its request, the Department provided statements by Richardson that do not offer any mitigating factor for consideration. 312 IAC 14-4-3(d).
63. Richardson’s first conviction for a violation of IC 25-36.5-1-10 was in 2008 and his first conviction under IC 25-36.5-1-15 was in 2012. At the time of those convictions, Richardson had not been adjudicated by a court to have violated IC 25-36.5-1. For those convictions, a mitigating factor is presented for consideration. 312 IAC 14-4-3(d)(1).
64. Richardson’s convictions after 2008 for his actions as an unregistered timber buyer and after 2012 for acting as an unlicensed timber agent present as aggravating factors for consideration. 312 IAC 14-4-3(e)(1).
65. Richardson’s statements provide sufficient evidence that his violations occurred over a period of 17 years and formed a pattern of violation, an aggravating factor for consideration. It is also noted that Richardson’s term of violation began prior to his first conviction in 2008. 312 IAC 14-4-3(e)(3).
66. Richardson’s own statements support the conclusion that his violations were intentional, an aggravating factor for consideration. IAC 14-4-3(e)(2).
67. The evidence submitted referenced restitution to victims by Richardson has been ordered by a court more than once. However, evidence is not available upon which a determination can be made concerning prompt full payment of restitution. 312 IAC 14-4-3(d)(4) and (e)(4).
68. The Commission previously considered an appropriate civil penalty for an unregistered timber buyer, pursuant to IC 25-36.5-1-13.5. In DNR v Cruse, 15 CADDNAR 74 (2019), evidence included a negotiated contract to purchase and cut trees between Cruse, an unregistered timber buyer, and landowners who were timber growers. In that case, upon the consideration of aggravating and mitigating factors, the Commission assessed the maximum civil penalty requested by the Department. Id.
69. Based on applicable mitigating and aggravating factors, the Department is entitled to an assessment of the maximum penalty amount for each of the 12 violations identified in paragraphs 48-49 of this decision.
Final Order:
1. Dillon J. Richardson is hereby assessed a civil penalty, pursuant to IC 25-36-5-1-13.5, in the amount of Seventy Thousand Dollars ($70,000) for violations of IC 25-36.5, as an unregistered timber buyer.
2. Dillon J. Richardson is hereby assessed a civil penalty, pursuant to IC 25-36-5-1-13.5, in the amount of Fifty Thousand Dollars ($50,000) for violations of IC 25-36.5, as an unlicensed timber agent.