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2028 DOS 07
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Application of
JUSTIN J. FLETCHER DECISION
For a License as a Real Estate
Appraiser Assistant
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The above noted matter came on for hearing before the undersigned, Scott NeJame, on October 23, 2007 at the office of the Department of State located at 44 Hawley Street, Binghamton, New York.
The applicant was represented by Kenneth P. Whiting, III, Esq., 53 Chenango Street, Suite 700, Binghamton, New York 13901.
The Division of Licensing Services (hereinafter "DLS") was represented by Legal Assistant II Nadine Kozer.
ISSUE
The issue before the tribunal is whether the applicant should be denied a license as a real estate appraiser assistant because of a criminal conviction.
FINDINGS OF FACT
1) By application dated January 15, 2007, the applicant applied for a license as a real estate appraiser assistant, answering “yes” to question number 1: "Have you ever been convicted in this state or elsewhere of any criminal offense that is a misdemeanor or a felony?" (State's Ex. 2).
2) On December 13, 1999, the applicant pled guilty to a charge of Sexual Abuse in the 1st degree, Penal Law §130.65, a class D felony, and was sentenced to six months in jail and five years probation. On January 2, 2007, the applicant received a certificate of relief from disabilities (State’s Ex. 3). He is a Level 1 (low risk) sex offender.
3) This conviction arose from the applicant having sexual contact with his uncle’s stepdaughter, who was ten years old at the time. When the applicant was nineteen years old, he was forced to leave his mother and stepfather’s home because of the problems he had with his abusive stepfather. The applicant moved in with the parents of the victim, his uncle and step aunt. The victim, a nine year old at the time, had a crush on the applicant and the two had a boyfriend/girlfriend relationship (the relationship pre-dated the applicant’s moving into the victim’s home). The applicant’s step aunt was aware of the relationship but not of any physical involvement between the two. The applicant took the victim to his senior prom and later that month, their relationship progressed to touching each other in their private areas, in and out of their clothes.
4) At the time of the commission of the applicant’s crime (August 1999), the applicant was nineteen years old (State’s Ex. 4).
5) In January 2004, the applicant completed his court ordered two year sex offender treatment program at The Family & Children’s Society in Broome County. The applicant provided the tribunal with a letter from his probation officer, who stated that the applicant did well under supervision, abided by his probation conditions, was gainfully employed and productive in the community, and successfully completed the terms of his probation on February 23, 2005 (State’s Ex. 5).
6) The applicant has worked full time for Jim Murray Appraisal Service for a little over six years, beginning as a data entry clerk. He received promotions over the years and three months ago, became the office manager.
7) James Murray and one of the appraisers in his office, Lynn Peterson, testified on the applicant’s behalf, giving him glowing recommendations. The applicant also provided the tribunal with a letter of recommendation from Jeffrey Steber, owner and operator of Binghamton Community Productions (State’s Ex. 5).
8) By letter dated April 17, 2007, the applicant was advised by DLS that it was denying his application because of the conviction and that the applicant could request a hearing (State’s Ex. 1). By letter from Mr. Whiting dated May 8, 2007, the applicant requested a hearing (State’s Ex. 1). DLS referred this matter to this tribunal on August 21, 2007, and the notice of hearing was served by certified mail on the applicant at the address the applicant gave to DLS and posted on September 13, 2007. Neither the mailing nor the return receipt was returned by the Postal Service (State's Ex. 1).
OPINION
I- As the person who requested the hearing, the burden is on the applicant to prove, by substantial evidence, that he is sufficiently trustworthy to be licensed as a real estate appraiser assistant. Executive Law §§160-p and 160-u; State Administrative Procedure Act (SAPA) §306(1). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact... More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt (citations omitted).” 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 NY2d 176, 408 NYS2d 54, 56-57 (1978); Tutuianu v. New York State, 22 AD3d 503, 802 NYS2d 465 (2nd Dept. 2005). “The question...is whether a ‘conclusion or ultimate fact may be extracted reasonably--probatively and logically’” City of Utica Board of Water Supply v New York State Health Department, 96 AD2d 719, 465 NYS2d 365, 366 (1983), quoting 300 Gramatan Avenue Associates, supra, 408 NYS2d at 57.
II- In considering whether the license should be issued, it is necessary to consider together the provisions of Executive Law Article 6-e, which require that the applicant demonstrate his trustworthiness, and the provisions of Correction Law Article 23-A. See, Codelia v. Department of State, No. 29114/91 (Supreme Court, NY County, May 19, 1992).
Article 23-A of the Correction Law imposes an obligation on licensing agencies
“to deal equitably with ex-offenders while also protecting society's interest in assuring performance by reliable and trustworthy persons. Thus, the statute sets out a broad general rule that...public agencies cannot deny...a license to an applicant solely based on status as an ex-offender. But the statute recognizes exceptions either where there is a direct relationship between the criminal offense and the specific license...sought (Correction Law §752(1)), or where the license...would involve an unreasonable risk to persons or property (Correction Law §752(2)). If either exception applies, the employer (sic) has discretion to deny the license....” Bonacorsa v. Van Lindt, 71 NY2d 605, 528 NYS2d 519, 522 (1988).
In exercising its discretion, the agency must consider the eight factors contained in Correction Law §753(1).
“The interplay of the two exceptions and §753(1) is awkward, but to give full meaning to the provisions, as we must, it is necessary to interpret §753 differently depending on whether the agency is seeking to deny a license...pursuant to the direct relationship exception...or the unreasonable risk exception.... Undoubtedly, when the...agency relies on the unreasonable risk exception, the eight factors...should be considered and applied to determine if in fact an unreasonable risk exists.... Having considered the eight factors and determined that an unreasonable risk exists, however, the...agency need not go further and consider the same factors to determine whether the license...should be granted....
§753 must also be applied to the direct relationship exception...however, a different analysis is required because 'direct relationship' is defined by §750(3), and because consideration of the factors contained in §753(1) does not contribute to determining whether a direct relationship exists. We read the direction of §753 that it applies ‘[i]n making a determination pursuant to section seven hundred fifty-two’ to mean that, notwithstanding the existence of a direct relationship, an agency...must consider the factors contained in §753, to determine whether...a license should, in its discretion, issue.” Bonacorsa, supra, 528 NYS2d at 523.
A direct relationship is one wherein the offense bears directly on the applicant's ability or fitness to perform one or more of the duties or responsibilities necessarily related to the license. Correction Law §750(3). Correction Law §750(3) “contains no similar definition of ‘unreasonable risk’ for the obvious reason that a finding of unreasonable risk depends upon a subjective analysis of a variety of considerations relating to the nature of the license...and the prior misconduct.” Bonacorsa, supra, 528 NYS2d at 522.
“A direct relationship can be found where the applicant's prior conviction was for an offense related to the industry or occupation at issue (citation omitted) (denial of a liquor license warranted because the corporate applicant's principal had a prior conviction for fraud in inter-state beer sales); (citation omitted)(application for a license to operate a truck in garment district denied since one of the corporate applicant's principals had been previously convicted of extortion arising out of a garment truck racketeering operation), or the elements inherent in the nature of the criminal offense would have a direct impact on the applicant's ability to perform the duties necessarily related to the license or employment sought (citation omitted) (application for employment as a traffic enforcement agent denied; applicant had prior convictions for, inter alia, assault in the second degree, possession of a dangerous weapon, criminal possession of stolen property, and larceny).” Marra v City of White Plains, 96 AD2d 17, 467 NYS2d 865, 869 (2nd Dept. 1983).
While the issuance of a certificate of relief from disabilities or certificate of good conduct creates a presumption of rehabilitation, as explained by the Court in Bonacorsa, that presumption is only one factor to be considered by the tribunal along with the eight factors set forth in Correction Law §753(1). Hughes v Shaffer, 154 AD2d 467, 546 NYS2d 25 (1989); Matter of Mahshie, 192 AD2d 1133, 598 NYS2d 756 (4th Dept. 1993).
“The presumption of rehabilitation which derives from...a certificate of relief from civil disabilities, has the same effect, however, whether the...agency seeks to deny the application pursuant to the direct relationship exception or the unreasonable risk exception. In neither case does the certificate establish a prima facie entitlement to the license. It creates only a presumption of rehabilitation, and although rehabilitation is an important factor to be considered by the agency...in determining whether the license...should be granted (see, Correction Law §753(1)(g), it is only 1 of 8 factors to be considered.” Bonacorsa, supra, 528 NYS2d at 523.
Further, an agency which seeks to deny an application has no obligation to rebut the presumption of rehabilitation which derives from a certificate of relief from disabilities or certificate of good conduct so long as it properly considers the other factors set forth in Correction Law §753(1). Arrocha v Board of Education of City of New York, 93 NY2d 361, 690 NYS2d 503 (1999).
There is a direct relationship between the crime of which the applicant was convicted and a license as a real estate appraiser assistant inasmuch as while working in that capacity, a licensee visits homes to be appraised and can reasonably be expected to come in contact with children living in those homes, possibly in circumstances where there would be a opportunity for him to engage in the kind of conduct for which he was convicted.
The direct relationship having been established, it is necessary to consider the factors set forth in Correction Law §753.
The pertinent duties and responsibilities of a real estate appraiser assistant (§753(1)(b)) have been discussed above. The fact that the applicant was convicted of a crime directly related to those duties has a direct bearing on his fitness to perform those duties and to meet those responsibilities (§753(1)(c)).
Over eight years have passed since the commission of the applicant’s crime (§753(1)(d)), which occurred when the applicant was nineteen years old (§753(1)(e)).
The seriousness of the crime (§753(1)(f)) is established by the fact that it was a felony.
The applicant provided the tribunal with letters of recommendation and testimony from his employer and co-worker (§753(1)(g)).
In the applicant's favor is the public policy of encouraging licensure of ex-offenders (§753(1)(a)) and his pre and post conviction participation in rehabilitation programs and his post conviction training and employment (§753(1)(g)).
All of the above must be considered in light of the legitimate interest of DLS in the protection of the safety and welfare of the public (§753(1)(h)).
The weighing of the factors is not a mechanical function and cannot be done by some mathematical formula. Rather, as the Court of Appeals said in Bonacorsa, it must be done through the exercise of discretion to determine whether the direct relationship between the “convictions and the license sought ha[s] been attenuated sufficiently.” Bonacorsa, supra, 528 NYS2d at 524.
The applicant was convicted of very serious misconduct involving his step cousin. To his credit, however, he answered questions directly about the underlying circumstances leading to the arrest, accepted responsibility for his actions and has taken steps to prevent a recurrence. He appears to have changed since his conviction, maintaining steady employment, acknowledging the mistake he made, understanding the age barrier, and trying to be a productive member of the community. While I am very aware of the serious need to protect children, I find that the likelihood of the applicant repeating this conduct to be slim.
CONCLUSIONS OF LAW
After having given due consideration to the factors set forth in Correction Law §753, and having weighed the rights of the applicant against the rights and interests of the general public, it is concluded that the applicant has established that the direct relationship between his conviction and a license as a real estate appraiser assistant has been attenuated sufficiently, and therefore, it is also concluded that the issuance of such a license would not involve an unreasonable risk to the safety and welfare of the general public.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT the application of Justin J. Fletcher for a license as a real estate appraiser assistant, is granted.
Scott NeJame
Administrative Law Judge
Dated: November 2, 2007