113 DOS 07
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Complaint of
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Complainant, DECISION
-against-
ALVIN D. GONZALEZ,
Respondent.
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on January 23, 2007 at the office of the Department of State located at 123 William Street, New York, New York.
The respondent having been advised of his right to be represented by an attorney chose to appear pro se.
The complainant was represented by Associate Attorney Whitney A. Clark, Esq.
COMPLAINT
The complaint alleges that the respondent Notary Public issued a document that exceeded his authority, improperly threatened to issue a Certificate of Dishonor, and failed to cooperate with the complainant’s investigation.
FINDINGS OF FACT
1) Notice of hearing together with a copy of the complaint was served by certified mail posted on September 14, 2006 (State’s Ex. 1).
2) The respondent has been duly commissioned as a Notary Public since September 7, 2004 (State’s Ex. 2).
3) On or about October 22, 2004 the respondent created a document with the heading “NOTICE OF DEFAULT AND OPPORTUNITY TO CURE” (State’s Ex. 7). Addressed to Suzanne B. Wind, Managing Agent, Asset Data Corp., and Todd E. Houslanger, Esq., the attorney representing Asset Data Corp. in a credit card collection matter against Myra Snyder Scott, the document referred to Ms. Scott as having sent them “the presentments regarding a NON-ADVERSARIAL CONDITIONAL ACCEPTANCE, DISCOVERY, aka PROOF OF CLAIMS, and also a NOTICE OF FAULT(sic)/OPPORTUNITY TO CURE.” It went on to say that the addressees “failed to accept or perform after receiving these presentments....” It further went on to say that they were “now in default and have stipulated to the terms of Myra Snyder Scott’s dated presentments through your dishonor. You have the right to cure this default and perform according to said terms within the ten (10) days from the postmark of this Notice. Should you fail to accept or perform, or cure the default; I will issue a CERTIFICATE OF DISHONOR pursuant to UCC 3-503 and your relative UCC State Statue (sic).” The respondent signed the document using the title “Notary Public” and indicating the expiration date of his commission. Attached was a certificate of mailing signed by the respondent as “Third Party Witness.”
4) On November 2, 2004 the respondent, signing as “Third Party Witness,” executed and acknowledged having executed, a “CERTIFICATE OF DISHONOR” in which he referred to “the contract entitled CONDITIONAL ACCEPTANCE.” He referred to having served a “NON ADVERSARIAL CONDITIONAL ACCEPTANCE” and a subsequent “NOTICE OF FAULT (sic) AND OPPORTUNITY TO CURE” and then a “NOTICE OF DISHONOR,” and concluded “Respondents have dishonored Myra Snyder Scott’s presentments by non-acceptance and/or non-performance and have therefore assented to the terms and conditions in said Contract” (State’s Ex. 8). Attached was a “NOTICE OF CERTIFICATE OF DISHONOR AND NON-RESPONSE,” with the same date, in which the respondent refers to himself as a Notary Public, and a certificate of mailing signed by the respondent as “Third Party Witness.”
5) On December 5, 2005 Senior License Investigator Ralph G. Byram went to the respondent’s residence in an attempt to interview him. No one was home and Investigator Byram left his business card in the door. That same day the respondent wrote a letter to Investigator Byram in which he directed Investigator Byram to make any future contacts in writing and stated that he might construe “unsolicited visits, and unsupported allegations” as harassment (State’s Ex. 3).
6) Investigator Byram made an appointment to meet with the respondent on December 19, 2005. However, when he arrived at the appointed location he was told that the respondent was not present. He waited 10 or 15 minutes and then asked one of the persons in the office if she could call the respondent and remind him of the appointment. Investigator Byram waited about 10 minutes until he was told that the respondent objected to, and would not be, coming, and, in fact, the respondent did not appear for the interview.
7) By letter dated December 15, 2005 the respondent reiterated his directive that all communications between him and Investigator Byram be in writing, and objected to his having “chosen to overlook my request and continue your attempts to visit with me in person and via telephone” (State’s Ex. 4). The respondent went on to say “should you not be able or willing to communicate with me in writing under seal via penalty of perjury, officiating any and all allegations [or complaints] that may be on file and open against me with your office, I am afraid, in the interest of due process afforded me constitutionally, I can not and will not meet with you to discuss and/or answer any questions you may have.”
8) By letter dated December 23, 2005 Investigator Byram directed the respondent to appear at the complainant’s office at 1:00 PM on January 9, 2006 and to bring with him “any Notice of Default and Opportunity to Cure, Certificate of Dishonor, Certificate of Mailing which you signed, witnessed or created on behalf of Myra Snyder Scott” (State’s Ex. 5). By letter dated December 26, 2005 the respondent replied that he would not be appearing at the appointed time, stated that he would not have any further communication with Investigator Byram or his office, and invoked “my 5th Amendment right constitutionally afforded me” (State’s Ex. 6).
OPINION AND CONCLUSIONS OF LAW
I- The respondent contends that the complaint is defective because it alleges a violation of “UCC Part 5" but does not state to which title of the UCC it refers, and, therefore, that he has not received sufficient notice of the charges against him so as to be able to prepare his defense.
The Court of Appeals has held that “in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense.” Matter of Block v Ambach, 73 NY2d 323, 333, 540 NYS2d 6 (1989).
The complaint herein alleges that the issuance by the respondent of the “Notice of Default and Opportunity to Cure” (State’s Ex. 7) and his threat to file a Certificate of Dishonor were an abuse of his authority as a Notary Public. I find that that allegation is sufficiently clear and definite for the respondent to understand which of his acts are alleged to have been improper and to prepare a defense by showing the propriety of those acts. Accordingly, I find that the complaint, although perhaps unartfully drawn, was not deficient.
II- The respondent contends that all that he did was issue a notarial protest. Clearly, that is not the case. A “protest” is a document the purpose of which is to formally protest the dishonoring of a negotiable instrument, UCC §§3-102[3] and 3-509, a negotiable instrument being a written promise or order to pay money. 80 NY Jur2d §8.
The “Notice of Default and Opportunity to Cure” at issue refers, apparently, to a demand made by Myra Snyder Scott, or by the respondent on her behalf, and served on Asset Data Corp. and Mr. Houslanger. That document, which is not in evidence but which it seems was created by the respondent in the course of his assisting pro se defendants following the precepts of a “legal reform” organization known as “H.A.L.T,” was not a negotiable instrument. Rather it seems to have been part of some unusual defense strategy concocted or adopted by the respondent in an attempt to intimidate the plaintiffs. The “Certificate of Dishonor” (State’s Ex. 8) might more likely be considered a notarial protest, although it, too does not relate to a negotiable instrument.
By issuing such a document and further threatening improper action as a Notary Public, that being the issuance of a Certificate of Dishonor when no negotiable instrument had been dishonored, the respondent engaged in a gross act of misconduct.
III- A notary public is a public officer, People v Wadhams, 176 NY 10 (1903); People v Rathbone, 145 NY 436 (1895); Patterson v Department of State, 35 AD2d 616, 312 NYS2d 300 (1970). As such, even absent a specific statutory provision, he or she has the obligation to cooperate in the proper administration of a governmental function, particularly where that function involves the enforcement of the statute under which he or she was appointed. The respondent's non-cooperation with the investigation, as evidenced by his failure to meet with and fully respond to the inquiries of the complainant’s investigator while attempting to dictate the terms of the investigation was further misconduct warranting the imposition of a disciplinary sanction. Division of Licensing Services v Garcia, 858 DOS 05. That non-cooperation is not excused by the respondent’s purported exercise of his “5th Amendment right,” which presumably refers to the privilege against self incrimination. That privilege applies only to criminal incrimination, not to the disclosure of information which may lead to civil liability, penalty, or forfeiture, 58A NY Jur2d 843. The respondent has not pointed to any criminal statute under which he might be held liable for his conduct, and the tribunal is not aware of any such statute.
IV- In determining the appropriate penalty for the respondent’s misconduct I have considered his apparently sincerely held belief that he has done nothing wrong. However, I have also considered his following statement:
“And I will do it again. I will do it again, because you know why? Because I am into the law. I have been in the law field for 17 years. That is my occupation. I am a paralegal. I knew what I was doing....I have worked myself to the top of pro se litigants in the country.” (Transcript, p32, lines 4-14).
It is, therefore, necessary to impress upon him and other so situated the seriousness of his misconduct, for which he might have been charged with practicing law without a license, and the need to act lawfully in the future.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT Alvin D. Gonzalez has engaged in acts of misconduct as a Notary Public, and accordingly, pursuant to Executive Law §130, his commission as a Notary Public is suspended for a period commencing on March 1, 2007 and terminating one year after the receipt by the Department of State of his Notary Public identification, which he is directed to send by certified mail to Kathy Scarcella, Customer Service Unit, Department of State, Division of Licensing Services, 80 South Swan Street, P.O. Box 22001, Albany, New York 12201-2201.
Roger Schneier
Administrative Law Judge
Dated: February 7, 2007