DEPARTMENT OF STATE

OFFICE OF THE SECRETARY OF STATE

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In the Matter of


DEPARTMENT OF STATE,

DIVISION OF LICENSING SERVICES,


                                    Appellant,

                                                                                                DECISION ON APPEAL

                        -against- 

                                                                                                            24DOSAPP08

SHAHAR BINIAMINOV,


                                    Respondent.

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            The New York Department of State, Division of Licensing Services (Appellant) appeals from a decision of the Office of Administrative Hearings (OAH) dated December 5, 2007 (2242 DOS 07). Administrative Law Judge (ALJ) Patrice Le Melle dismissed Appellant’s complaint on the basis that Shahar Biniaminov’s (Respondent) license had expired prior to the hearing (2242 DOS 07). The ALJ dismissed the complaint without prejudice to Appellant’s consideration of Respondent’s criminal felony conviction should Respondent ever reapply for a license (2242 DOS 07).

            Appellant has filed a Memorandum of Appeal with the Secretary of State. Respondent has not filed a Response to the Memorandum of Appeal.

STATEMENT OF FACTS

            Respondent was initially licensed as a real estate salesperson on May 7, 2003 and his most recent license as a real estate salesperson automatically expired on September 27, 2007 [State’s Ex. 3]. Respondent pled guilty on August 29, 2006 to a charge of Grand Larceny in the 3rd degree, a Class D felony (see Penal Law § 155.35) [State’s Ex. 8]. On August 15, 2007, Appellant issued a complaint alleging that Respondent was not entitled to be licensed as a real estate salesperson due to his felony conviction, as set forth in Real Property Law § 440-a [State’s Ex. 2]. Respondent confirmed by telephone receipt of a complaint and notice of hearing sent to him by regular mail (Transcript at 6) [State’s Ex. 2].

            An administrative hearing was held on November 8, 2007 at which Respondent failed to appear (Transcript at 5). During the hearing, Appellant offered evidence of Respondent’s licensing history and criminal record (Transcript at 6, 15) [State’s Ex. 3, 8]. No evidence demonstrating that Respondent had been granted an executive pardon or a certificate of good conduct or of relief from disabilities with respect to his felony conviction was adduced at the hearing (see 2242 DOS 07). Following the hearing, the ALJ dismissed Appellant’s complaint without prejudice, reasoning that since Respondent’s license had already expired, there was no license to be revoked (see 2242 DOS 07).

OPINION

            Appellant contends that the Department of State retains jurisdiction to take disciplinary action against an expired licensee for the statutory renewal period of the license and, therefore, that the ALJ’s decision was in error. The Department of State retains jurisdiction over a disciplinary hearing and may impose disciplinary sanctions where (1) the alleged unlawful conduct occurred while the respondent was licensed and (2) the respondent was eligible to automatically renew the prior license at the time of the commencement of the action and when the hearing was held (see Division of Licensing Services v. Akbar Yasrebi 12 DOS 99 (1999); Division of Licensing Services v. Thabit Uqdah 287 DOS 98 (1998); see also Albert Mendel & Son, Inc. v. New York State Dept. of Agriculture and Markets, 90 A.D.2d 567, 567, 455 N.Y.S.2d 867, 869 (1982); Maine Sugar of Montezuma, Inc. v. Wickham, 37 A.D.2d 381, 383, 325 N.Y.S.2d 858, 860 (1971)). Real Property Law § 441(2) provides that the renewal period for a real estate salesperson’s license is “two years from the date of expiration of a previously issued license.” The expiration without renewal of a real estate salesperson’s or broker’s license does not deprive the Department of State of jurisdiction arising out of an event occurring prior to the expiration of such license, nor does it deprive the Department of State of the ability to revoke the expired license (see Maine Sugar of Montezuma, 37 A.D.2d at 383; DLS v. Carol Branch 2267 DOS 07 (2007); see also Matter of Brooklyn Audit Co. v. Department of Taxation & Fin., 275 N.Y. 284, 286 (1937); Albert Mendel & Son, Inc., 90 A.D.2d at 567). The Department of State may, however, deem revocation an ineffective remedy and thereby not use its authority to revoke an expired license (see DLS v. Scott Bernstein 01 DOS APP 07 (2007)). In Division of Licensing Services v. Scott Bernstein, the Department of State retained the authority to revoke the private investigator’s expired license, but deemed revocation an ineffective remedy under the circumstances and elected to impose a financial penalty (see 01 DOS APP 07).

The penalty of revocation is available for the statutory renewal period of the license even though Respondent’s license expired before the hearing. The record reveals that pursuant to Real Property Law § 441(2), Respondent is entitled to renew his license by submission of an application prior to September 27, 2009. As the basis for the revocation is Respondent’s activity while licensed and Appellant filed and served its complaint before Respondent’s license expired and the statutory renewal period is still in effect, the ALJ had the authority to revoke Respondent’s expired license (see Albert Mendel & Son, Inc., 90 A.D.2d at 567; Maine Sugar of Montezuma, 37 A.D.2d at 383; DLS v. Scott Bernstein 01 DOS APP 07). Furthermore, a revocation in this case would be an effective remedy because it would deprive Respondent of eligibility to seek a renewal license for one year (see Real Property Law § 441-c (4)). Therefore, the ALJ’s finding that, “Since [Appellant’s] registration has expired . . . there is nothing for this tribunal to revoke” was incorrect as a matter of law (2242 DOS 07).

            Appellant also contends that Respondent’s license should be revoked because Respondent pled guilty to a Class D felony, Grand Larceny in the 3rd degree. According to Real Property Law Article 12-a § 440-a, “No person shall be entitled to a license as a . . . real estate sales[person] under this article who has been convicted in this state or elsewhere of a felony” unless such person has subsequently received executive pardon, a certificate of good conduct, or a relief from disability for the felony conviction. Without sufficient proof of an executive pardon, certificate of good conduct, or relief from disability, this statute precludes a person convicted of a felony from holding a real estate salesperson license (see O’Neill v. Department of State, 24 A.D.2d 940, 940, 265 N.Y.S.2d 95, 96 (1965); Jorge A. Galvez v. Division of Licensing Services 236 DOS APP 98 (1998)). The record shows that Respondent has been convicted of a felony and, with no evidence of an executive pardon, certificate of good conduct, or relief from disability, the revocation of Respondent’s license is required.

DETERMINATION

            The decision of the Administrative Law Judge (2242 DOS 07) is hereby reversed and Respondent’s license is revoked.

 

So ordered on:

 

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    Daniel E. Shapiro

                         First Deputy Secretary of State