STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
274 DOS 98
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DIVISION OF LICENSING SERVICES,
Complainant,
-against-
QUEENS EXPRESS REALTY CO.,
d/b/a CENTURY 21 EXPRESS REALTY,
Real Estate Broker,
DECISION HARRY K. JAIRAM,
Representative Real Estate Broker,
MICHAEL B. MOHABIR,
Associate Real Estate Broker,
Respondents.
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Administrative Law Tribunal
270 Broadway, New York, NY 10007
Held: August 25 and November 10, 1998
Before: Felix Neals, Administrative Law Judge.
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The respondents, Queens Express Realty Co., d/b/a Century 21 Express Realty, and Mr. Harry K. Jairam, 124-13 Liberty Avenue, Richmond Hill, NY 11419, were represented by Mr. Harry K. Jairam.
The respondent, Mr. Michael B. Mohabir, represented himself at the hearing held on August 25, 1998.
The complainant, the Division of Licensing Services, was represented by Scott NeJame, Esq., Ligation Counsel, 84 Holland Avenue, Albany 12208.
ISSUE
The Division of Licensing Services commenced this matter under the provisions of Real Property Law, §441-c, State Administrative Procedure Act, Article 3, and 19 New York Codes, Rules and Regulations, Part 400. The complaint charges the following:
1. Mr. Michael B. Mohabir demonstrated untrustworthiness and incompetence in that he violated the provisions of 19 New York Codes, Rules and Regulations, §175.17, by soliciting a listing of a residential home for sale of a homeowner whose name and address appear on the cease-and-desist list for Nassau County.
2. Queens Express Realty Co. and Mr. Harry K. Jairam demonstrated untrustworthiness and incompetence and violated the provisions of 19 New York Codes, Rules and Regulations, §§175.17 and 175.21: (A) by being vicariously liable for the soliciting of a listing of a residential home for sale of a homeowner whose name and address appear on the cease-and-desist list for Nassau County, and (B) by failing to properly supervise the real estate activities of an associate real estate broker, Mr. Michael B. Mohabir, who solicited a listing of a residential home for sale of a homeowner whose name and address appear on the cease-and-desist list for Nassau County.
PROCEDURAL HISTORY
At the hearing held on August 25, 1998, after the State presented its evidence, the tribunal granted the respondents' motion for a continuation to obtain an attorney.
On September 30, 1998, the Division of Licensing Services and Mr. Michael B. Mohabir settled the disciplinary action, and the complaint against Mr. Mohabir was withdrawn.
SUMMARY OF EVIDENCE
A. EXHIBITS.
The evidence submitted includes the following:
1. A copy of the pleadings that consists of the notice of hearing and complaint.
2. Copies of computer printouts that denote the licensing history of the respondents.
3. New York State, Department of State, Cease and Desist list dated January 1, 1996, Queens County, South Ozone Park.
4. Two Century 21 Express Realty forms - "Sellers Net Proceeds" and "Possible Drawbacks to Waiting."
5. Two articles, New York Newsday, regarding New York real estate.
6. Letter dated July 22, 1996, to the Division of Licensing Services from "Mike Mohabir (Manager)" in which Mr. Mohabir discusses an incident involving his "secretary Shanaz Hossein" and "Miss Angela Antonino."
B. WITNESS. Two witnesses, Ms. Angela Antonino and Mr. Michael O'Donald, both homeowners in South Ozone Park, testified on behalf of the Division of Licensing Services.
Mr. Harry K. Jairam argued affirmative defenses.
FACTS
By the substantial evidence, I find the following facts:
The respondents' licensure history with the Division of Licensing Services is as follows: (1) Queens Express Realty Co. is licensed as a real estate broker doing business as Century 21 Express Realty with Mr. Harry K. Jairam licensed as the representative real estate broker from February 22, 1997, to February 22, 1999; (2) the company does thousands of solicitation mailings a year and has been in business for 10 years without a prior complaint. Mr. Michael Mohabir was licensed as an associate real estate broker of Queens Express Realty Co. from September 20, 1995, to April 24, 1997, and is licensed as an associate real estate broker of Super Service Realty, d/b/a Coldwell Banker Super Service Realty, from December 17, 1997, to December 17, 1999.
Ms. Angela Antonino owns a one-family home, 117-72 127th Street, South Ozone Park, that was listed on the New York State, Department of State's Cease and Desist List for the years 1994, 1995, and 1996. There is not any evidence regarding a listing of the property on the cease and desist list for 1997. Mr. Michael M. O'Donald, a next door neighbor of Ms. Antonino, owns a one-family home at 117-70 127th Street, South Ozone Park.
On March 22, 1996, about 6:30 p.m., Ms. Antonino received a telephone call from a Ms. Shanaz Hossein who stated that she was calling from Century 21 Express on behalf of Mr. Michael Mohabir and attempted to obtain a listing for sale of Ms. Antonino's home. Ms. Antonino asked the caller to have the licensed broker telephone for an appointment. An appointment was subsequently made; the evidence does not disclose by whom or when.
On March 26, 1996, about 3 p.m., Mr. Michael B. Mohabir met Ms. Antonino at her home, and Mr. O'Donald was present at Ms. Antonino's request to witness the meeting. During the visit on March 26: Mr. Mohabir gave Ms. Antonino four documents - two articles from New York Newsday concerning real estate in New York and two Century 21 Express Realty forms that list items that should be of concern to a potential seller of residential property; he inspected the premises, stated that Ms. Antonino's name and address has been obtained from a book that lists homeowners' names, addresses, and purchase prices, and opined that her home could be sold for up to $119,000. In response to being told by Ms. Antonino that she was listed on the current cease and desist list, Mr. Mohabir was visibly shocked and stated that there had to be an error, that the employee who called must have overlooked the listing, and that this never should have happened. Mr. Mohabir then immediately left the premises.
On July 25, 1996, the Division of Licensing Services received a written statement from Mr. Mohabir in which he referred to Ms. Shanaz Hossein as his secretary who had mistakenly telephoned Ms. Antonino on March 22, 1996.
Ms. Antonino further testified that on July 3, 1997, she received a telephone call from Ms. Bre who stated that she represented Express Realty, asked if Ms. Antonino was interested in selling her home, and, in response to Ms. Antonino's asking the name of the person in charge, gave the name, Mr. Chris Shingh. The record does not disclose whether Ms. Antonino was listed on the Department of State's cease and desist list for 1997. There was not any further contact between Ms. Antonino and Express Realty.
Mr. Jairam's testimony, being both conflicting and in direct contradiction to the substantial evidence, is not found to be credible: He stated that Mr. Mohabir did not have anyone to assist him in the real estate company, that the company did not employ anyone by the name of Shanaz Hossein, and under cross-examination, said that Ms. Hossein was temporarily employed for three months by the company.
Mr. Mohabir did not testify in the hearing held on August 25, 1998, and was not present at the hearing held on November 10, 1998.
OPINION
Mr. Jairam's argues inefficaciously: (1) The state failed to prove that anyone from Queens Express Realty telephoned Ms. Antonino on March 22, 1996; and (2) the affirmative defense of entrapment in that Ms. Antonino invited Mr. Mohabir to her home on March 26, 1996, to induce him to violate the law.
Substantial evidence proves that on March 22, 1996, a Queens Express Realty employee (the record fails to disclose the licensure status), Ms. Shanaz Hossein, telephoned Ms. Antonino and attempted to obtain a listing for sale of Ms. Antonino's residence. Ms. Antonino's testimony regarding a telephone inquiry on July 3, 1997, from a person representing Queens Express Realty is uncontradicted.
Provisions of 19 New York Codes, Rules and Regulations, §175.17, outlaw a licensed real estate broker’s solicitation of the listing for sale of residential property from an owner of residential property located in a designated cease-and-desist zone in the duration of time for which the owner has filed a cease-and-desist notice with the Department of State. The regulation defines solicitation to mean: an oral or written attempt to purchase or to rent or to obtain a listing of property for sale, for rent or for purchase; through the use of telephone, mail, delivery services, personal contact or otherwise; whether delivered or presented to the owner or anyone else at the owner’s address, or left for the owner or anyone else at the owner’s address, or placed on any vehicle, structure or object located on the owner’s premises.
The Department of State compiled the cease-and-desist list for 1996 as directed by the licensing regulation that compels the agency (1) to compile the names and addresses of owners who file cease-and-desist notices with the agency, (2) to list the geographic areas designated as cease-and-desist zones, and (3) to make cease-and-desist lists available for public inspection (19 New York Codes, Rules and Regulations, §175.17). The New York State Department of State Cease and Desist List for Queens County (dated January 1, 1996) includes Ms. Angela Antonino as a homeowner of residential property in South Ozone Park on March 26, 1996.
The telephone call received by Ms. Angela Antonino in South Ozone Park on March 26, 1996, from Ms. Shanaz Hossein, an employee of Queens Express Realty, was an attempt to obtain a listing of residential property for sale in a designated cease-and-desist zone and fits the statutory definition of solicitation.
Ms. Antonino's act in inviting Mr. Mohabir to her home to induce him to violate the cease and desist notice and to gather evidence of the violation was not the act of a public servant and was not done in cooperation with any public servant. Consequently, Ms. Antonino's action does not constitute entrapment (Penal Law, §40.05; 31 NY Jur2nd, Criminal Law, §243). Concordantly, Mr. Mohabir's personal contact on March 26, 1996, with Ms. Antonino at her home at her invitation is not a solicitation within the definition of 19 New York Codes, Rules and Regulations, §175.17.
The evidence, consisting of the one telephone solicitation inadvertently made to one homeowner in the cease and desist zone: (1) is not tantamount to untrustworthiness or incompetence; and (2) does not support the State's allegation that Mr. Jairam's supervision of Mr. Mohabir failed to consist of regular, frequent, and consistent personal guidance, instruction, oversight, and superintendence in the real estate business conducted by Queens Express Realty Co., as required by 19 New York Codes, Rules and Regulations, §175.21.
The evidence does not establish that the representative broker participated in, or authorized, or was cognizant of the one violation of 19 New York Codes, Rules and Regulations, §175.17, at the time of commission on March 22, 1996. However, both the corporate broker and the representative real estate broker: (1) may be held vicariously liable for the violation of the regulation by the employee acting within the scope of employment; and (2) may be assessed any penalty provided by law, excluding a suspension or a revocation (Real Property Law, §442-c; Roberts Real Estate Inc. v New York State Department of State, 171 AD2d 217, 575 NYS2d 945 [3rd Dept. 1991]).
In assessing penalty, the tribunal considers the respondents' history of being in business for ten years without a prior consumer complaint and that the proof consists of one solicitation to one homeowner in the cease and desist zone.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact, opinion, and as a matter of law, I conclude:
The respondents, Queens Express Realty Co. and Mr. Harry K. Jairam, violated 19 New York Codes, Rules and Regulations, §175.17.
The substantial evidence failed to prove that the respondents, Queens Express Realty Co. and Mr. Harry K. Jairam: (1) violated 19 New York Codes, Rules and Regulations, §175.21; or (2) demonstrated untrustworthiness and incompetence.
ORDER
Based on the foregoing findings of fact, opinion, and conclusion of law, and under the provisions of Real Property Law, §441-c:
I ORDER that on or by December 31, 1998, the respondents, Queens Express Realty Co. and Mr. Harry K. Jairam, shall pay a total fine of five hundred ($500) dollars to the Division of Licensing Services. The respondents are directed to send the payment of the fine to Ms. Diane Ramundo, Customer Service Unit, Department of State, Division o Licensing Services, 84 Holland Avenue, Albany, NY 12208.
SO ORDERED: November 17, 1998.
Felix Neals
Supervising Administrative Law Judge