FINDINGS OF FACT

            1) Respondent Anne Marie Folan is duly licensed as a real estate broker for the term December 11, 2007 to December 10, 2009. Her business address is 172-24 46^th Avenue, Flushing, New York 11358 (State’s Ex. 2).

            2) On Sunday, July 27, 2008, a solicitation was left on the door knob of the home of City Council Member Tony Avella, 154-28 24^th Avenue, Whitestone, New York 11357 (State’s Ex. 3). This address is included on the applicable Queens cease and desist list (State’s Ex. 4).

            3) The solicitation, from the Folan Real Estate Group, was a card that included the respondent’s contact information, and the words “Just Listed Your Neighbors House.” The line below those words was blank (State’s Ex. 3).

            4) The respondent testified that her company would not have left a “Just Listed” solicitation without the address that had been recently listed. She explained, “It’s just ineffective for us because we’re trying the sell a particular property.”

            5) The respondent’s mother, Anne Folan, a licensed real estate salesperson, testified that she personally delivers all of the Folan Real State Group solicitations and checks each address against the cease and desist list. She testified she carries the cease and desist list with her during the distribution and would not have left a solicitation at an address on the list. She further testified that she would never leave a “Just Listed” card at a home without including the address of the home that had recently been listed. She explained that listing the address is essential because the company is trying to alert people that a particular house has come on the market and give them “first choice of selecting their new neighbor.”

            6) The respondent submitted samples of other “Just Listed” solicitations that include the address of the property listed (Resp’s Ex. A).

            7) The respondent testified that she previously told a Department of State investigator that the solicitation was an oversight because at the time she assumed the solicitation included a specific address.

OPINION AND CONCLUSIONS OF LAW

            I- Pursuant to Real Property Law §442-h(3): the Secretary of State may establish cease and desist zones; the owners of residential property within those zones may request that their names and addresses be included on a cease and desist list; and once such a list has been compiled, real estate brokers and salespersons may not solicit agency agreements for the sale of the listed properties. 19 NYCRR §175.17(c)(1) also prohibits the solicitation by real estate brokers and salespersons of listings for sale of property included on a cease and desist list, and 19 NYCRR §175.17(d)(1) provides that, "solicitation shall mean an attempt to...obtain a listing of property for sale.... Solicitation shall include but not be limited to use of the telephone, mails, delivery services, personal contact or otherwise causing any solicitation, oral or written, direct or by agent: (i) to be delivered or presented to the owner or anyone else at the owner's home address; (ii) to be left for the owner or anyone else at the owner’s home address...."

            Although the evidence clearly establishes that a solicitation was left at a home listed on the cease and desist list, it does not establish the circumstances under which the card was left at the home. Having heard the testimony and observed the demeanor of the respondent and her mother, the tribunal finds their testimony credible. It is reasonable to conclude that someone other than the respondent or another representative of the Folan Real Estate Group placed the solicitation on Councilman Avella’s door knob. Perhaps it was done as a prank, or possibly somebody was intentionally trying to cause problems for the respondents. Although the particular circumstances cannot be ascertained, based on the evidence, the tribunal cannot conclude Respondent Ann Marie Folan was responsible for the solicitation.

DETERMINATION

            WHEREFORE, IT IS HEREBY DETERMINED THAT the complaint is dismissed.

                                                                    Ziedah F. Giovanni                                                            Administrative Law Judge

Dated: November 30, 2009