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299 DOS 09

 

STATE OF NEW YORK

DEPARTMENT OF STATE

OFFICE OF ADMINISTRATIVE HEARINGS

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In the Matter of the Application of

 

JoANN N. CONLEY                                  DECISION

 

For a License as a Real Estate Broker

 

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    The above matter was heard by the undersigned, Scott NeJame, on January 26, 2009 at the office of the Department of State located at One Commerce Plaza, Albany, New York.

 

    The applicant, having been advised of her right to be represented by an attorney, chose to represent herself with the assistance of her sponsoring broker, Harris L. Safier.

 

    The Division of Licensing Services (hereinafter "DLS") was represented by Legal Assistant II Nadine Kozer and Senior Attorney Linda Cleary, Esq.

 

ISSUE

 

    The issue before the tribunal is whether the applicant has sufficient experience to qualify for a license as a real estate broker.

 

FINDINGS OF FACT

 

    1) By application dated June 23, 2008, the applicant applied for a license as a real estate broker predicated partially on her experience as a licensed real estate salesperson and partially on equivalent experience she obtained in general real estate business (State's Ex. 2).

 

    2) The applicant was licensed as a real estate salesperson associated with Westwood Metes & Bounds Realty (“Westwood”) at 42 Crown Street, Kingston, New York for the period of July 26, 2005 to January 1, 2008. She then became licensed as a real estate salesperson associated with Westwood Ltd at the same business address for the period of January 1, 2008 to July 26, 2009 (State’s Ex. 3).

 

    3) On her application, the applicant claimed 320 points as a licensed real estate salesperson under Supplement A, which is applicable to salesperson transactions only (State’s Ex. 2). She then claimed a total of 3,076 points on Supplement B, which relates to her equivalent experience obtained in general real estate business. 576 of those points were based on the applicant’s personal involvement in general real estate business (State’s Ex. 2).

 

    4) The vast majority of the applicant’s claimed equivalent experience, a total of 2500 points, is based on the applicant’s statement, “Directly interacted with licensees I supervised for last 3 years as office manager for over 161 closed transactions. (I did 10% of work per my principal broker [therefore] 250 pts x 10% = 25 pts. x 100 transactions).” The applicant did not perform the work in these transactions, she supervised the licensees in their performance of the work.

 

    5) The DLS claimed that this 2,500 points earned by the applicant is not acceptable qualifying experience (State’s Ex. 2). The applicant earned this experience as an office manager for Westwood since May 23, 2005, in which she guided sales associates through their transactions, closed out transaction files, interviewed and trained new sales associates, prepared and attended office caravans, and attended many training sessions (State’s Ex. 5). No other evidence was offered by the applicant to substantiate her experience other than a letter by her representative broker, Mr. Safier, which described her duties as office manager (State’s Ex. 5).

 

    6) The applicant testified that she has worked approximately 5,425 hours as a real estate salesperson and over 23,600 hours as an office-processing manager, when considering her work experience with Westwood as well as her previous sixteen year experience with Weichert Realtors (her experience with Weichert is not before the tribunal). With Westwood, the applicant has overseen over 225 exclusive right-to-sell listings obtained by associates in her office and over 200 closed transactions, all of which she believes is experience in the general real estate business that should be considered. She and Mr. Safier believe that the experience she gained as an office manager is much greater than, for example, the minimal qualifying experience a real estate salesperson is required to gain to obtain a broker’s license.

 

    7) Both the applicant and Mr. Safier believe that they are in a “Catch-22" situation due to the change in the law that went into effect in July 2008. On July 1, 2008, Real Property Law §440 was amended to add subsection 6, which defined an office manager and which required that person be a licensed associate real estate broker. Thus, the applicant applied to become licensed as a real estate broker based on her experience as office manager. Since she did not actively participate in the real estate transactions personally, she could not accumulate the statutorily required experience in the conventional way. She also claims that she will lose her job as office manager if her application is not granted.

 

    8) By initial letter dated August 12, 2008 and amended letter dated August 15, 2008, DLS advised the applicant that it proposed to deny her application because she failed to submit sufficient proof of experience to qualify for licensure and that she could request a hearing (State’s Ex. 1). By letter dated September 12, 2008, the applicant requested a hearing (State’s Ex. 1). DLS referred this matter to this tribunal on November 13, 2008, and the notice of hearing was served by certified mail on the applicant at the address on her application and delivered on November 28, 2008 (State's Ex. 1).

 

OPINION AND CONCLUSIONS OF LAW

 

    I- As the person who requested the hearing, the burden is on the applicant to prove, by substantial evidence, that she has acquired the requisite experience. Real Property Law §441(1)(b); State Administrative Procedure Act (SAPA) §306(1). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact... More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt (citations omitted).” 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 NY2d 176, 408 NYS2d 54, 56-57 (1978); Tutuianu v. New York State, 22 AD3d 503, 802 NYS2d 465 (2nd Dept. 2005). “The question...is whether a ‘conclusion or ultimate fact may be extracted reasonably - probatively and logically’” City of Utica Board of Water Supply v. New York State Health Department, 96 AD2d 719, 465 NYS2d 365, 366 (4th Dept. 1983), quoting 300 Gramatan Avenue Associates, supra, 408 NYS2d at 57.

 

    II- Pursuant to Real Property Law §441(1)(b) that was in effect prior to July 1, 2008, an applicant for a license as a real estate broker must establish that she has actively participated in the general real estate brokerage business as a licensed real estate salesperson under the supervision of a licensed real estate broker for a period of not less than one year, or has had the equivalent experience in general real estate business for a period of at least two years, or a combination of the two. Footnote Although the applicant has claimed her experience based on a combination of the two criteria, the only issue that is disputed is her claim of 2,500 experience points under the “equivalent experience” requirement.

 

    Generally speaking, equivalent experience is such that, if it were not engaged in on behalf of either the applicant herself or the applicant's exclusive employer who is a principal in the transaction, or without the expectation or receipt of compensation, it would require a license as a real estate salesperson or broker. Matter of the Application of Frucht, 114 DOS 91 (1991); Matter of the Application of Edward Kachalov, 689 DOS 06 (2006). It may also include experience gained in the brokering of mortgages on owner occupied residential real property. Matter of the Application of Nacht, 124 DOS 92. Experience, whether as a salesperson or the equivalent, is quantified in accordance with a point system established by 19 NYCRR 179.3. 1,750 points are required for an application based on experience as a real estate salesperson, and 3,500 points are required to qualify on equivalent experience, or a combination of the two (calculated at the end of the application). Further, 19 NYCRR §179.3(b) requires the applicant to establish that she “actually performed the work associated with the real estate transaction claimed as experience credit.”

 

    In this case, the applicant based her equivalent experience of 2,500 points on her own formula of the 100 transactions she supervised as office manager. Admittedly, however, the applicant did not engage in any of those transactions herself or for her employer, who was not a principal in those transactions. Therefore, since those 2,500 points cannot be claimed by the applicant as equivalent experience, she has not acquired the required number of points entitling her to receive a real estate broker’s license.

 

    I am mindful of the applicant’s predicament, in that she likely has more experience than the average real estate salesperson seeking a broker’s license, that she is more than adequately qualified to be an office manager for Westwood, and that she may lose her job as an office manager if she is not granted a license. However, the tribunal does not have the authority or discretion to make an exception in the law and it would be arbitrary and capricious to do so.

 

DETERMINATION

 

    WHEREFORE, IT IS HEREBY DETERMINED THAT the application of JoAnn N. Conley, UID #40CO1079180, for a license as a real estate broker, is denied.

 

 

 

 

                                      Scott NeJame

                                Administrative Law Judge

 

Dated: April 2, 2009