STATE OF NEW YORK

DEPARTMENT OF STATE

OFFICE OF ADMINISTRATIVE HEARINGS

629 DOS 05

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ROGER A. LEVY,

Applicant for Renewal of a License as a Real Estate Broker,

-against-

DIVISION OF LICENSING SERVICES,

Objector.

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ADMINISTRATIVE LAW TRIBUNAL

123 William Street, New York, New York

Held: July 21, 2005

Felix Neals, Supervising Administrative Law Judge

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Applicant, Mr. Roger A. Levy, appeared pro se.

Objector, Division of Licensing Services, was represented by Ms. Nadine Kozer, Legal Assistant II.

Under provisions of Real Property Law, §441-e, State Administrative Procedure Act, Article 3, and 19 New York Codes, Rules and Regulations, Part 400, applicant challenges the State's proposed denial of his application for renewal of his license as a real estate broker.

On December 27, 2004, Mr. Levy filed an application with Division of Licensing Services to renew his license as a real estate broker.

Division of Licensing Services proposes to deny the application on the ground that the applicant failed to demonstrate the competence and trustworthiness required to be licensed as a real estate broker because of the circumstances that resulted in the applicant's suspension from the bar as an attorney in the State of New York.

By Order dated May 27, 2003, The Supreme Court, Appellate Division, First Judicial Department (In the Matter of Roger A. Levy, an attorney and counselor-at-law, Departmental Disciplinary Committee for the First Judicial Department, Petitioner, Roger A. Levy, Esq., Respondent) imposed a three-year suspension from the practice of law.

The disciplinary action resulted from Mr. Levy's handling of funds in an IOLA account in the duration of time from September 1988 through December 2000. The Court found; (1) There was not any evidence that a client lost money as a result of Mr. Levy's conduct. (2) Mr. Levy's conduct did not result from a dishonest motive or venal intent. (3) Mr. Levy expressed contrition and cooperated with the Disciplinary Committee. Mr. Levy's failure was mainly that he failed to maintain accurate bookkeeping.

Since his suspension from the practice of law, Mr. Levy has worked as a real estate broker.

Real Property Law, Article 12-A, delegates to the Department of State the responsibility to "protect the public from inept, inexperienced or dishonest persons who might perpetrate or aid in the preparation of frauds upon it, and to establish protective and qualifying standards to that end." Small v Marchese, 98 Misc. 2d 295, 413 NYS2d 808 (1^st Dept. 1978). The significance of that responsibility is apparent from the fact that real estate licensees are fiduciaries under the law.

Essentially, then, the issue to be resolved is whether the granting of a license as a real estate broker to the applicant would pose an unreasonable risk to the public that the agency is mandated to protect. "Unreasonable risk" is not defined by statute and is determined by a subjective analysis of a variety of considerations relating to the nature of the license sought and the prior misconduct. Risk becomes the measuring stick in quantifying relationships between historical behavior patterns and future, conduct possibilities to determine the applicant's fitness to renew his real estate broker's license. The likelihood of future violations of law by the applicant for a license as a real estate broker (the risk) can be the basis for a denial of licensure if supported by substantial evidence; a license may not be denied on the speculation that it will be operated in violation of law. History is instructive but not necessarily predictive (Matter of Holmes, 38 DOS 87 [1987]).

The tribunal considers the following facts: The disciplinary action occurred more than two years ago. Subsequently, the applicant engaged in real estate brokerage activities as a licensed real estate broker without any complaint being brought against him. The record does not disclose any misconduct subsequent to the incidents that resulted in the disciplinary determination. The applicant's testimony is credible. The tribunal finds that the substantial evidence sufficiently attenuates any risk posed by the findings of the Departmental Disciplinary Committee. The State's allegation that there is an unreasonable risk of the applicant operating in violation of the law as a real estate broker is not supported by substantial evidence. Concomitantly, the applicant offered evidence establishing his competence and trustworthiness.

The issuance of a license to the applicant as a real estate broker would not pose an unreasonable risk to property or to the safety and welfare of individuals or the general public.

Based on the foregoing findings of fact, opinion and conclusions of law and under the provisions of Real Property Law, §441-e;

I ORDER the application of Mr. Roger A. Levy for renewal of his real estate broker license (35LE0971122) is granted.

SO ORDERED: July 22, 2005

Felix Neals

Supervising Administrative Law Judge