52 DOS 90
Decided: December 7, 1990
STATE OF NEW YORK
DEPARTMENT OF STATE
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DIVISION OF LICENSING SERVICES,
In the Matter of the Application of: DECISION
PAUL ROZENFELD,
For License as a Real Estate Broker.
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Administrative Law Tribunal
270 Broadway, New York, N.Y. 10007.
Held: October 11, 1990.
Before: Felix Neals, Administrative Law Judge.
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The applicant, Mr. Paul Rozenfeld, 345 East 80th Street, New York, N.Y. 10021, appeared pro se.
The objector, the Division of Licensing Services, was represented by David Horowitz, Esq.
ISSUE
This proceeding was heard on October 11, 1990, pursuant to the provisions of Real Property Law (RPL), section 441-e, to determine if the applicant possesses the experience required by the provisions of RPL, section 441(1)(d), to be licensed as a real estate broker.
FINDINGS OF FACT
1. The applicant submitted an application dated October 3, 1989, to the Division of Licensing Services for a license as a real estate broker.
By letter dated February 16, 1990, the Division of Licensing Services notified the applicant that he was ineligible for licensure because his experience of five months was not sufficient to satisfy the requirements of law.
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The applicant made an administrative appeal to the Division of Licensing Services for reconsideration of the application. The Division of Licensing Services responded by letter dated August 10, 1990, stating that a reinvestigation of the application did not disclose any evidence to change the decision of the Division of Licensing Services. On August 17, 1990, the applicant requested a quasi-judicial administrative hearing.
The application for licensure contained the certification of four real estate brokers with whom the applicant had been associated from March 21, 1986, to November 20, 1989, and claimed a total of 1,771 hours. The evidence offered by both the applicant and the Division of Licensing Services concerned the applicant's hours and kind of activities performed for those four brokers.
At all times concerned in this matter, the applicant was employed full time by the New York City Department of Environmental Protection as a civil engineer. The applicant was first associated as a salesperson with Century 21 Statland Realty. The company's representative broker certified that the applicant was employed part time from March 21, 1986, to September 3, 1986, for approximately 28 weeks for a total of 876 hours. The applicant's activities consisted essentially of obtaining rental listings and as an observer, accompanying other real estate salespersons in effort to learn about the real estate brokerage business.
The applicant testified that he worked at the Statland Realty's office from 3:30 P.M. to 8:30 P.M. Mondays through Fridays and from 9 A.M. to 2 P.M. each weekend through August 1986. The real estate activities performed were canvasing building owners for listings both by telephone and by personal visits and the showing of rental properties, and appraisals of real property. The applicant did not earn any commissions or successfully negotiate any real estate transactions.
The Division of Licensing Services's investigator gave the following testimony: the representative broker of Statland Realty stated in a telephone interview that there could be a variance in the number of work hours certified to on the application, but did not know what the actual hours were and did not have any records of either the applicant's employment hours or real estate brokerage activities.
The applicant was next employed part time by Von Realty from September 2, 1987, to October 8, 1988. The application for licensure stated that the applicant worked from 4:30 P.M. to 6:30 P.M. Mondays through Fridays, and from 9 A.M. to 2 P.M. on weekends for a total of 520 hours. The applicant procured seven listings for commercial properties, showed properties, and had sales negotiations, but did not earn a commission or effect a sale or a rental during the employment. The Division of Licensing Services was provided with copies of the seven listing agreements. The real -3-
estate broker of Von Realty could not recall and did not have records that indicated the exact number of hours that the applicant worked in real estate brokerage activities.
The applicant further states that from May 14, 1988, to September 1, 1988, he worked for Westhampton Realty Co. on weekends, from 9 A.M. until 5 P.M. His activities consisted mainly of attempts to get listings and the showing of properties for short-term leasing or for sale. The applicant did not make any sales or rentals. Neither the applicant nor the real estate broker had any documentation of the applicant's real estate brokerage activities. The Division of Licensing Services's investigator stated that in an interview, the broker substantiated the number of hours (200) that the applicant claims on the license application. The applicant did not earn any compensation while associated with Westhampton Realty.
The applicant was next associated with Bill Bass Associates from February 8, 1989, to May 5, 1989, from 4:30 P.M. until 6 P.M. The real estate broker certified that the applicant worked a total of 175 hours contacting and obtaining listings from owners of large commercial properties and engaged unsuccessfully in negotiations for the sale of two properties. The applicant testified, but could not produce documentation to support the claim, that he obtained about 25 listings while associated with Bill Bass Associates, but did not earn a commission or successfully conclude a sale or a rental. The Division of Licensing Services' Investigator testified that the real estate broker did not have any documentation concerning the applicant's activities or hours and did not remember the exact number of hours that the applicant had worked as a salesperson.
OPINION
I. To be licensed as a real estate broker, the real estate salesperson must satisfy the experience prerequisite of RPL, section 441(1)(d), which prescribes that:
In determining competency (of a real estate salesperson applying for license as a real estate broker), the department (the Division of Licensing Services) shall require proof that the applicant for a broker's license...has actively participated in the general real estate brokerage business as a licensed real estate salesman under the supervision of a licensed real estate broker for a period of not less than one year...
The experience criterion expressed in RPL, section 441(1)(d), is amplified in 19 NYCRR 175.21(c), as follows:
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Participation in the general real estate brokerage business as a licensed real estate salesman shall consist of active service under the supervision of a licensed real estate broker for at least 35 hours per week for 50 weeks in each year required for qualification under the law.
The prescription of the statute and the regulation is apparent: to be considered competent experientially, the salesperson must have actively worked in licensed real estate brokerage activities (prescribed in RPL, section 440) for at least 35 hours per week for 50 weeks under the supervision of a licensed real estate broker.
II. The real estate salesperson, as an applicant for license as a real estate broker, has the burden of proving compliance with the statutory prerequisite of experience. State Administrative Procedure Act, section 306. RPL, section 441(1)(d). 19 NYCRR 175.21(b). Matter of Rosen, 12 DOS 89.
An application hearing is a quasi-judicial administrative proceeding initiated by an applicant, and therefore, is governed by the provisions of the State Administrative Procedure Act, section 306, which states that: "Except as otherwise provided in statute, the burden of proof shall be on the party who initiated the proceeding." Moreover, RPL, section 441(1)(d), mandates the Division of Licensing Services to require proof that an applicant for license as a real estate broker has the requisite experience. The proof of experiential competence demanded by the provisions of RPL, section 441(1)(d), is data required by regulation to be maintained and submitted by the salesperson to the Division of Licensing Services with the application for license as a real estate broker.
19 NYCRR 175.21(b), prescribes that:
The broker and salesman shall keep written records of all real estate listings obtained by the salesman, and of all sales and other transactions effected by, and with the aid and assistance of, the salesman, during the period of his association, which records shall be sufficient to clearly identify the transactions and shall indicate the dates thereof. Such records must be submitted by the salesman to the Department of State with his application for a broker's license.
It is the applicant's duty to both maintain and to supply to the
Division of Licensing Services the information reasonably sufficient and detailed to prove that the applicant meets the minimum active-service required by law.
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There is an obvious conflict in the testimony of the applicant regarding the work history with the two brokers, Von Realty (including weekends from 9 A.M. to 2 P.M., September 2, 1987, to October 8, 1988) and Westhampton Realty Co. (weekends only, from 9 A.M. until 5 P.M., from May 14, 1988, to September 1, 1988). The documentation submitted by the applicant in support of his application is insufficient to resolve the testimonial conflict and, in addition, does not supply sufficient, material, factual data from which it could be fairly determined the applicant had actively engaged in activities prescribed in RPL, section 440, under the supervision of a licensed real estate broker for a minimum of 35 hours per week for 50 weeks, (as required by the provisions of 19 NYCRR 175.21(b)).
CONCLUSION OF LAW
The applicant did not prove that he possesses experience sufficient to meet the minimum, one year, experience criterion expressed in the provisions of RPL, section 441(1)(d).
DETERMINATION
IT IS DETERMINED, according to the foregoing and pursuant to the provisions of RPL, section 441-e, that the applicant, Mr. Paul Rozenfeld, does not meet the minimum experience criterion prescribed in RPL, section 441(1)(d); and accordingly, the application of the applicant for a license as a real estate broker is denied.
From the testimony and the evidence produced at the hearing, the above findings of fact, opinion, conclusion of law, and determination are made, and the adoption of this decision is recommended.
Felix Neals
Administrative Law Judge
Concur and So Ordered on 5/2/91 GAIL S. SHAFFER
Secretary of State
By:
James Coon Deputy Secretary of State