STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
815 DOS 03
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RUSSELL J. FINLEY,
Applicant for Renewal of
a License as a Real Estate Broker,
-against- DECISION
DIVISION OF LICENSING SERVICES,
Objector.
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ADMINISTRATIVE LAW TRIBUNAL
333 E. Washington Street, Syracuse, NY 13202
Held: September 10, 2003
Felix Neals, Supervising Administrative Law Judge
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Applicant, Mr. Russell J. Finley, represented himself.
Objector, Division of Licensing Services, was represented by Scott NeJame, Esq., Litigation Counsel.
Under provisions of Real Property Law, §441-e, State Administrative Procedure Act, Articles 3 and 4, and 19 New York Codes, Rules and Regulations, Part 400, applicant requested this hearing to review the Division of Licensing Services' proposed denial of his application for renewal of his real estate broker license. The State contends that the applicant demonstrated untrustworthiness and incompetence in that he: (1) made material misstatements on two applications for renewal of his real estate broker license; (2) failed to cooperate with a Division of Licensing Services' investigation; (3) failed to comply with a decision issued on July 10, 2000, Division of Licensing Services v Finley Real Estate, 393 DOS 00.
Mr. Finley, licensed as real estate broker doing business as Finley Real Estate for the term ending March 4, 2003, filed an application dated March 4, 2003, with the Division of Licensing Services on March 6, 2003, for renewal of his real estate broker license. On that application, Mr. Finley answered "no" to the question, "1. Since your last renewal, have you been convicted of a crime or offense (not minor traffic violation) in this state or elsewhere, or has any license, permit, commission, registration or application for a license, permit, commission or registration held by or submitted by you or a company in which you are or were a principal been revoked or denied by any state, territory or governmental jurisdiction or foreign country for any reason?"
On a prior renewal application signed by Mr. Finley on March 15, 1999, Mr. Finley answered "no" to that same question 1.
The County Court, St. Lawrence County, Canton Village: (1) on December 8, 1998, suspended a pistol license (No. C-12145) that had been issued to Mr. Finley on March 17, 1989; and (2) on January 11, 1999, revoked Mr. Finley's pistol license. On May 25, 2000, the Supreme Court of New York, Appellate Division, Third Department, Matter of Russell J. Finley v Eugene L. Nicandri, affirmed the determination of the St. Lawrence County Court.
On July 10, 2002, in Division of Licensing Services v Finley, 393 DOS 00, the Honorable Roger Schneier, Administrative Law Judge, issued a determination in which a $500 fine was assessed against Mr. Finley, in lieu of a suspension of license commencing July 30, 2000.
Mr. Finley hired an attorney to appeal the quasi-judicial, administrative decision. The attorney filed an Order to Show Cause under Civil Practice Law and Rules, Article 78. On October 13, 2000, the Supreme Court of New York, Special Term, St. Lawrence County, dismissed appellant's motion on grounds of failure to exhaust administrative remedies. Mr. Finley paid the $500 fine by check dated December 1, 2000.
Mr. Finley testified that he did not believe that a pistol permit revocation was related to a real estate broker license; therefore, he answered "no" to the application question that inquired about revocation of any license, permit, commission or registration or application for any of the enumerations. Consequently, he asserts that he misunderstood the questions, and any wrongful answers were inadvertently given without fraudulent intent. Specifically, he states that he did not deliberately lie. The tribunal finds his testimony to be credible.
Preliminary, the issues to be determined are: (1) whether the applicant made material misstatements in the applications for renewal of his real estate broker license; and (2) whether the material misstatements prevent the granting of the license renewal.
As a general rule, a material misstatement in an application for a license is any false statement of information which, in part or in whole, is an essential factor in making a determination of the fitness of the applicant for licensure. In other words, any statement made in the application that, if the true facts were known: (1) would intrinsically prevent the granting of the license renewal because of a failure of the applicant to qualify under provisions of Real Property Law, §400-a; or (2) would allow the Division of Licensing Services in its discretion either to grant or to deny the renewal of application for licensure.
First, the question on the renewal application that asks, "1. Since your last renewal, have you been convicted of a crime or offense (not minor traffic violation) in this state or elsewhere, or has any license, permit, commission, registration or application for a license, permit, commission or registration held by or submitted by you or a company in which you are or were a principal been revoked or denied by any state, territory or governmental jurisdiction or foreign country for any reason?", necessarily includes the pistol license C-12145 that was revoked by the County Court. Mr. Finley's answers of "no" to that question on the two applications were untrue.
Although Mr. Finley misinterpreted or misunderstood the question and the false answers were inadvertently made without fraudulent intent, he signed and affirmed under penalties of perjury the information on the applications. In absence of fraud, duress or other vitiating acts, the signer of an affirmation, expressive of a verified act, is thereby conclusively bound. A verifier is prohibited from subsequently using his own unawareness or negligence as basis for attacking the validity of information supplied and affirmed by the verifier. Inadvertence or negligence may negate wrongful intent.
Mr. Finley's wrongful answers were false statements of information that were essential criteria in determining Mr. Finley's fitness for renewal of licensure. The Division of Licensing Services relied upon those material misstatements in issuing two, real estate broker license renewals to Mr. Finley.
The concomitant, definitive issue is whether Mr. Finley deliberately made the material misstatements with the intent to deceive the licensing agency. He did not.
During Division of Licensing Services' investigation of Mr. Finley's applications, a license investigator made a written request dated March 17, 2003, to Mr. Finley for the following specific information:
"You are hereby being requested to submit any and all documentation regarding the aforementioned pistol permit revocation, including but not limited to, official court documentation showing the reason(s) for the revocation, any appeal documentation, etc.
"You must also provide a sworn, notarized affidavit as to why you checked 'no' to #1 on your real estate broker renewal which asks 'since your last renewal, have you been convicted of a crime or offense (not minor traffic violation) in this state or elsewhere, or has any license, permit, commission, registration or application for a license, permit, commission or registration held by or submitted by you or a company in which you are or were a principal been revoked or denied by any state, territory or governmental jurisdiction or foreign country for any reason?'".
In a reply received by the Division of Licensing Services on April 14, 2003, Mr. Finley advised the Division of Licensing Services as follows:
"Regarding the pistol permit revocation, your department has at its disposal all the resources of the State of New York and I request that you or some other employee simply contact the courts involved with this matter to have whatever documents you desire copied. The case on appeal is titled Russell J. Finley Petitioner v. Eugene Nicandri as County Judge of St. Lawrence County, Respondent, Supreme Court-Appl. Div. 3rd Dept.
"I cannot add anything to my Real Estate Broker renewal that is presently pending with your office other than what I answered. Therefore I am not providing any affidavit."
Attached to Mr. Finley's reply were documents related to Russell Finley d/b/a Finley Real Estate v Department of State and Division of Licensing Services, Supreme Court State of New York, St. Lawrence County.
On May 14, 2003, the license investigator obtained from St. Lawrence County documents filed both In the Matter of Russell J. Finley, Pistol License No. C-12145, County Court, St. Lawrence County, and in Finley v Nicandri, as County Judge of St. Lawrence County, Supreme Court of New York, Appellate Division, Third Department.
A real estate broker license is a privilege from and subjected to regulation by the State (Real Property Law, Article 12-A); the State may attach exacting conditions to the granting of that license.
Real Property Law, §§441-e and 442-e, confer investigatory powers to the licensing agency to investigate the integrity of applicants and obligate an applicant to supply specific information required for proper determination of the fitness of the applicant for licensure.
The license investigator made a lawful request for specific information material to the investigation of Mr. Finley's application for renewal of his real estate broker license. Mr. Finley refused to supply that information and thereby failed to cooperate with the Division of Licensing Services' investigation of his fitness for licensure as a real estate broker.
The power of the State to withhold the granting of a real estate broker license for good cause includes the failure of an applicant to cooperate with the Division of Licensing Services' investigation of the applicant's fitness for licensure.
The State failed to prove by substantial evidence the other allegations of the complaint, and those allegations are dismissed.
I ORDER the proposed decision of the Division of Licensing Services to deny the application of Mr. Russell J. Finley for renewal of his license as a real estate broker (UID #37FI0788878) is confirmed, and the application is denied.
SO ORDERED: September 15, 2003
Felix Neals
Supervising Administrative Law Judge