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June 2006

Legally Speaking with Brad Tamarro

Reason and common sense not technicalities –
the key to success

Many criminal prosecutions are simply the result of an attempt to accomplish a desired goal by cutting a corner or venturing into a “gray” area of the law. The problem that often arises is that, while the goal itself is legal, the pathway to that goal causes the legal problem for the target of the prosecution. With that in mind, a March decision by an Ohio Court of Appeals in State v. Elyria Acquisition, Co. No.1 (Crawford Cty 2006), 2006 Ohio 1415, served to emphasize the fact that no one should abandon their common sense and gamble their future on a technicality.

Elyria Acquisition Co. No. 1 [EAC] was a scrap tire storage and shredding company operating out of Lorain County, Ohio. EAC was owned by Mary K. Szabo and Jack Vasi, Ms. Szabo’s brother, was an employee. EAC accumulated over 100,000 scrap tires at its Lorain County site during its operations. In 1996 EAC lost its license to operate the Lorain County shredding and storage facility and a subsequent civil lawsuit by the State led to a Court Order to stop receiving scrap tires at the facility and clean up what was already on site. In 2002, the civil actions involving the EAC facility resulted in a State clean up of the site where over 350,000 scrap tires were ultimately removed.

Several counties away from Lorain County a small auto salvage yard was required by the state EPA to properly remove thousands of scrap tires that had legally accumulated at its place of business due to its salvage operations. The salvage yard used an outdated EPA list of licensed shredding companies and contacted EAC. After speaking with Jack Vasi, the salvage yard signed a contract to have its scrap tires shredded and removed for the tidy sum of $25,000. However, knowing that EAC did not have a license to run a shredding operation as well as the fact that the salvage yard was required to submit a copy of any agreement for the removal of the scrap tires to the EPA inspector, Vasi signed the contract as the representative of a fictitious company. While the name of the company and the address he gave were fictitious, the telephone number he gave for the company was the phone number for EAC. Vasi subsequently transported a shredder owned by EAC and his sister, Szabo, to the salvage yard where Vasi operated it for several days using EAC employees. The shredder constantly broke down and eventually, after taking several thousand dollars from the owner of the salvage yard in advance, Vasi abandoned the broken down shredder and did not remove a single tire from the site.

Vasi, Szabo and EAC were subsequently charged with multiple environmental crimes including operating a mobile shredding facility without proper licenses at the salvage yard, possessing criminal tool in the form of the mobile shredder at the salvage yard, and open dumping of scrap tires at the Lorain County facility. At trial and on appeal Vasi, Szabo and EAC argued that the legal definition of a mobile shredder required the fact that the machine be designed to be mobile. Since Vasi had mounted the shredder on a trailer himself, it was not “designed” to be mobile. They also argued that the shredder was not a criminal tool because it had a legitimate legal use; i.e. to shred scrap tires. Finally, they argued that there was no evidence that they had dumped additional scrap tires at the Lorain County facility after losing their license to run the site as a storage facility.

The jury rejected the claims and found Vasi, Szabo and EAC guilty as they were charged. The Court of Appeals rejected the claims and explained that, as to the claim there was no evidence of open dumping at the closed Lorain facility, the facility had lost its license to operate in 1996. When the license was lost there were only 107,000 scrap tires present and there was an Order in the civil case prohibiting any additional scrap tires from being brought in and requiring the removal of the 107,000 that was already there. However, since the Order to remove those tires was issued by the Court, the number of scrap tires grew to over 350,000. Add in to that the fact that, even without proper licenses, Vasi, as a representative of EAC entered into the contract to shred and remove the scrap tires from the salvage yard, and the conclusion was that a reasonable mind could conclude that scrap tires were dumped at the facility.

In a similar fashion, the Court of Appeals rejected the claim that the shredder was required to be “designed” to be mobile in order to require a license as a mobile shredder. The Court pointed out that the definition was more inclusive that Vasi, Szabo and EAC wished because it also included the possibility of where a shredder was in fact moved from one location to another. Finally, the Court rejected the claim that the mere fact an object could be used for a legitimate purpose precluded a finding that it was a criminal tool. In this regard, the Court simply pointed out that a license was required and Vasi intended to operate the shredder without it.

The legal difficulties these individuals became embroiled in could have been averted if they would have adhered to a number of basic concepts:

  • Ensure that all the proper license and permits are in place for the specific operation you wish to engage in before beginning the activity;
  • Where there is any question about the requirement for a permit or license, seek competent legal guidance before beginning any operation;
  • Actions that appear to be designed to mislead or avoid scrutiny by the appropriate regulatory agency should be avoided since it only serves to heighten the potential for a criminal prosecution should the activity later be disclosed;

Adherence to these basic points can go a long way towards avoiding the escalation of what, under most circumstances, would be a civil matter into a full scale criminal prosecution.

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