New York State Department of State



STATE OF NEW YORK

DEPARTMENT OF STATE

OFFICE OF ADMINISTRATIVE HEARINGS

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In the Matter of the Application of

 

JEFFREY PRINCE DECISION

 

For a License as a Real Estate Broker

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The above noted matter came on for hearing before the undersigned, David Treacy, on November 14, 2011 at the office of the Department of State located at 99 Washington Avenue, Albany, New York.

The applicant was represented by Dennis B. Schlenker, Esq., 174 Washington Ave., Albany, NY 12210

The Division of Licensing Services (hereinafter "DLS") was represented by Linda Cleary, Esq.

ISSUE

The issue before the tribunal is whether the applicant should be denied a license based on a lack of requisite good character, trustworthiness and competence indicated by the circumstances attendant to the applicant’s disciplinary history with the Department of State, and based on a failure of the applicant to cooperate with a Department of State investigation by not providing the Department with copies of satisfactions of judgments.

FINDINGS OF FACT

1) By application dated July 30, 2010, the applicant applied for a license as a real estate broker in the name of Catskill Mtn Resort, R.E., Inc., a corporation of which the applicant is the sole shareholder, director and officer. (State’s Ex’s. 3, 6).

2) The applicant was previously licensed as a real estate broker beginning in the early 1970’s for over thirty years. (State’s Ex. 3).

3) By Decision of this tribunal dated August 16, 2004, the applicant’s real estate broker’s license was revoked after a hearing; applicant was found to have violated Real Property Law §440-a and demonstrated untrustworthiness and incompetency. (State’s Ex. 1; 716 DOS 04).

4) Applicant thereafter commenced litigation and obtained a stay of the revocation, which was then vacated by the New York State Supreme Court, Appellate Division, Third Department, ultimately resulting in revocation of said license, effective March 1, 2005. By letter dated February 18, 2005 from Dennis B. Schlenker, Esq., applicant surrendered his license certificate and pocket card to DLS. (State’s Ex. 1, 2).

5) With respect to the present application, DLS received a letter dated August 9, 2010 from Dennis Schlenker, Esq. on behalf of the applicant, in support of applicant’s application. Two favorable letters of reference regarding the applicant were enclosed; in pertinent parts: Anthony C. Bucca., Esq. vouched for the applicant’s integrity over the past thirty years, and Dennis Lucas, Sr., on behalf of the Town Board of the Town of Hunter, thanked the applicant for his many years of service as a Planning Board member. (State’s Ex. 4).

6) By letter to applicant dated September 7, 2010, Janine Barnhart, Senior License Investigator for DLS, in connection with DLS’ review of applicant’s application, requested copies of satisfactions of judgments and tax liens/warrants known to have been filed against him, including but not limited to four judgments mentioned in this tribunal’s decision of August 16, 2004 (716 DOS 04 at 4) and one New York State Department of Taxation and Finance tax lien/warrant. (State’s Ex’s 5, 10).

7) In response to Ms. Barnhart’s request for documentation from the applicant, Dennis B. Schlenker, Esq., by letter dated September 24, 2010, indicated that the applicant was engaged in a good faith effort to respond and would endeavor to do so by October 15, 2010. (State’s Ex. 6).

8) In follow-up to Mr. Schlenker’s September 24, 2010 letter, Anthony C. Bucca, Esq., by letter on behalf of applicant dated October 8, 2010, informed Ms. Barnhart that the applicant had engaged him to “deal with the five items mentioned in [her] letter.” Mr. Bucca briefly addressed four of the five specified items, indicating that: 1) he and the applicant were pursuing a resolution of one of the judgments by settlement, 2) one judgment had been “dealt with” in the course of the applicant’s bankruptcy filing of 1992, 3) a judgment by the New York State Department of Taxation and Finance and other tax warrants were “being referred to JK Harris & Co. for resolution and compromise,” and 4) a “claim by the NYS Department of Taxation and Finance was never perfected and does not constitute a lien.” Based on their “good faith steps undertaken to resolve these issues,” Mr. Bucca, in the same letter also requested DLS to continue processing applicant’s application for a real estate broker’s license. (State’s Ex. 7).

9) By letter dated October 20, 2010, DLS proposed to deny the applicant’s application because the “circumstance, considered in the aggregate, attendant to the applicant’s disciplinary history with the Department of State with regard to previous licensure as a real estate broker indicate a lack of the good character, trustworthiness and competence required for licensure” and because of applicant’s failure to “cooperate with a Department of State investigation in that applicant did not provide copies of satisfaction of judgements [sic] as requested in letter dated September 7, 2010.” (State’s Ex. 8; See also State’s Ex. 1(Complaint dated 1/18/11)).

10) The applicant thereafter requested a hearing by letter dated October 28, 2010 (State’s Ex. 9). A Notice of Hearing to Applicant and a Complaint were sent by certified mail to the applicant’s address on February 11, 2011 (State’s Ex. 1). The administrative hearing originally scheduled for May 2, 2011 was adjourned three times until it was held on November 14, 2011. (State’s Ex. 1).

11) At the hearing, the applicant testified about the judgments and tax liens/warrants filed against him, including the items indicated in Ms. Barnhart’s letter of September 7, 2010. (State’s Ex. 5), which she obtained from reviewing departmental records - a Consent Order dated January 8, 2000 between the Department and Mr. Prince, and a Decision dated August 16, 2004 from this tribunal regarding Mr. Prince - and from conducting an online search. (Transcript at 36, 37). In September of 2010, applicant did not have the information/documentation requested (Transcript at 71), but at the November 14, 2011 hearing he offered information on the five specified times and more:

- A 7,500.00 judgment entered in Delaware County in 2002 related to a disagreement between the applicant and another broker over whether a $15,000.00 sales commission received by the applicant in March of 2000 should have been split between the two. On August 16, 2004, Administrative Law Judge Roger Schneier, upon considering the circumstances of this judgment opined that the applicant “believed, not necessarily unreasonably, that he had no obligation” to split said commission with the other broker, and therefore dismissed a charge of “failing to pay another broker that broker’s share of a commission.” (716 DOS 04 at 8). At the November 14, 2011 hearing, applicant further explained that he had made efforts to resolve the matter and there had been no collection effort. (Transcript at 59-61).

- A $79,524.63 judgment was entered by Manufacturers and Traders Trust Company in connection with a land development project and applicant’s bankruptcy filing of 1992. The lending institution assumed the mortgage, and acquired and sold the property; this judgment was never executed upon. (Transcript at 60-61).

- A $4,804.77 NYS Department of Tax & Finance judgment has been paid by the applicant. (Transcript at 62).

- A $2,345.02 judgment on behalf of Eugene Angle was related to snow plowing that Mr. Angle had done for a former client of the applicant when he acted as a property manager for the client. This judgment does not reflect a debt of the applicant and no collection effort has been made on this judgment. (Transcript at 61,63, 66, 73). The applicant testified that he sees Mr. Angle frequently, they are on good terms, and no further action was taken on this judgment after it was entered; the judgment was never executed upon. (Transcript at 63, 66).

- A $63,707.44 tax lien/warrant related to the estate of the applicant’s father, who passed away in 1986. Applicant is named on the tax lien/warrant as the executor of his father’s estate. (Transcript at 33-35).

- Applicant also testified that he had issues with the I.R.S. during his thirty-year period of being licensed as a real estate broker, but to the best of his knowledge those issues have all been resolved. (Transcript at 79). Applicant, under cross-examination, acknowledged that his disciplinary history with the Department involved financial issues and acknowledged that he understood the significant fiduciary responsibilities involved with acting as a licensed real estate broker. (Transcript at 79).

12) The applicant further testified about his disciplinary history with the Department. He repeatedly expressed remorse for the circumstances surrounding and leading to his disciplinary history and he took responsibility for same. (Transcript at 57). He explained that his disciplinary history was not related just to financial issues or to complaints relating to salespeople for whom he acted as the broker. (Transcript at 79, 80) His disciplinary history also was related to the “rental of homes and property management…something that [he] never would go into again.” (Transcript at 78). If granted a license, applicant “would stay out of the rental business and just concentrate on the sales where [he] didn’t have any problems…or complaints [for] over thirty years.” (Transcript at 78).

13) Since his involvement with the actions (occurring between the years of 1999-2002) that eventually led to the revocation of his license, applicant experienced life-changing events; he concluded a “bitter divorce,” remarried, had a child, and underwent open-heart surgery. (Transcript at 70-72; State’s Ex’s 1, 10).

14) The applicant testified that - having previously held a real estate broker’s license and having owned a real estate brokerage firm for thirty years, in three different locations in New York State, without being the subject of any discipline or disciplinary proceedings - after the revocation of his license, he essentially had to reinvent himself. (Transcript at 43). He did so by engaging in business related to the construction of new homes and the development of land, largely related to the planning and general contracting of residential projects. (Applicant’s Ex. 1; Transcript at 46-51).

In order to avoid issues of conflict with his new line of work, applicant resigned from his position as Chairman of the Tannersille Zoning Commission and as a member of the Town of Hunter Planning Board, which he had served for fifteen years. (Transcript at 47). Since the his license revocation and undertaking a new profession, no individuals or entities involved with any of his building projects have had any complaints and no judgments have been imposed on him. (Transcript at 54).

15) Applicant testified about his desire to reenter the field of real estate brokerage “to conclude the rest of [his] life in a manner that would not bring disgrace.” (Transcript at 57). Since the actions that ultimately led to the revocation of his license, he has been working to regain his reputation for trustworthiness and reliability in the community in 2005. (Transcript at 57-58).

16) Applicant reported that he recently took a 45-hour pre-qualifying course for a real estate broker’s license, a real estate ethics course, and the brokerage license exam, which he passed. (Transcript at 55).

OPINION & CONCLUSIONS OF LAW

I- A hearing on an application for licensure is held at the request and instance of an applicant who has been notified of the proposed denial of the application. 19 NYCRR §400.4(b). At the hearing, the applicant has the burden of establishing that he is sufficiently trustworthy to be licensed as a real estate broker. State Administrative Procedure Act §306.

II- Upon submitting an application for licensure as a real estate broker, an applicant may be required to provide further information to the department to enable it to determine the trustworthiness of the applicant or of each officer of a corporation for whom licensure as a broker is being sought, and his or their competency to transact the business of real estate broker in such a manner as to safeguard the interests of the public. Real Property Law §441(1)(b).

III- One of Department’s reasons for denying applicant’s application for licensure as a real estate broker is his failure to cooperate with the Department by not providing copies of satisfaction of judgments as requested by letter dated September 7, 2010.

Having considered applicant’s attorneys’ written responses to the Department’s September 7, 2010, the oral testimony provided at the hearing, and the evidence related to the reported judgments and liens/warrants, it is concluded that it is entirely possible, given the nature and circumstances of the judgments and liens/warrants at issue, that the documentation requested by the Department does not exist and is thus unattainable by the applicant. Having observed applicant’s credible testimony regarding the details and status of the documented judgments and liens/warrants, and previous “I.R.S. issues,” as well as the lack of collection efforts by any would-be debtors, in this case it cannot be said that the applicant’s inability to produce satisfaction of judgments as requested by the Department equates to a failure to cooperate with an investigation. That is not to say that judgments and liens/warrants may not otherwise be pertinent. They may be especially pertinent as potential indicators of applicant’s ability and likelihood to successfully execute the fiduciary responsibilities of a real estate broker; the applicant appears to have satisfactorily addressed all outstanding financial issues.

IV- The other reason for the Department denying applicant’s application is that the circumstances, considered in the aggregate, attendant to the applicant’s disciplinary history with the Department of State with regard to previous licensure as a real estate broker indicate a lack of the good character, trustworthiness and competence required for licensure.

I have considered the oral testimony given and the written evidence submitted at the hearing, including this tribunal’s August 16, 2004 Decision revoking applicant’s license upon determining that the applicant had demonstrated untrustworthiness and incompetency, and the prior June 2, 2000 Consent Order. I find it very troubling that the actions of the applicant indicated in the Consent Order included some of the same actions that eventually served as the basis for this tribunal’s subsequent Decision to revoke the applicant’s license. However, I was impressed by the applicant’s apparent sincerity and intention in the future to conduct himself honorably, which he appears to have done over the past ten years.

V- In consideration of the evidence and the credible testimony - including applicant’s apparent self-improvement, redemption, transformation and reputation in his community since his involvement in actions dating back to approximately ten years and more - it is concluded that the circumstances attendant to his disciplinary history have been attenuated sufficiently and the issuance of a license as a real estate broker to the applicant would not pose an unreasonable risk to the property and to the welfare of the public.

 

DETERMINATION

 

             WHEREFORE, IT IS HEREBY DETERMINED THAT the application of Jeffrey S. Prince, under the business name of Catskill Mtn Resort R.E. Inc, for a license as a real estate broker is granted.

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David Treacy

Administrative Law Judge

Dated: May 14, 2012

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