485 DOS 12. The applicant, having been advised of her right to representation, chose to represent herself.

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1 STATE OF NEW YORK DEPARTMENT OF STATE OFFICE OF ADMINISTRATIVE HEARINGS X In the Matter of the Application of 485 DOS 12 LINOR SHEFER DECISION For a License as a Real Estate Salesperson X The above matter was heard by the undersigned, Ziedah Giovanni, on July 12, 2012 at the office of the Department of State (hereinafter DOS ) located at 123 William Street, New York, New York. The applicant, having been advised of her right to representation, chose to represent herself. The Division of Licensing Services (hereinafter DLS ) was represented by Senior Attorney Linda D. Cleary, Esq. ISSUE The issue before the tribunal is whether the applicant possesses the requisite character to be licensed as a real estate salesperson. DLS proposes the denial of the license, alleging that the applicant conducted unlicensed activity and falsely advised DLS during an investigation of such unlicensed activity. FINDINGS OF FACT 1) The applicant passed the DOS real estate salesperson examination on November 2, 2010 (State s Ex. 1). On or about November 30, 2010 the applicant filed an application online (State s Ex. 1, Att. A, & Ex. 2). On the application, the applicant stated that she was sponsored by Amnon Hecht, representative broker for the Hecht Group, 1131 Lexington Avenue, New York NY During an ongoing investigation into the business practices of the Hecht Group, DOS found that the applicant may have engaged in unlicensed activity, and placed an administrative hold on the applicant s application (State s Ex. 1, Att. B).

2 2) By letter dated March 2, 2012, DLS proposed to deny the applicant s application for a real estate salesperson s license because she conducted unlicensed activity, and advised her that she may request an administrative hearing (State s Ex. 9). The applicant requested a hearing by a letter received by DLS on March 28, 2012 (State s Ex. 10). 3) In a complaint dated May 23, 2012, DLS opposed the license application of the applicant because a DOS investigation found that the applicant conducted business as a real estate salesperson without the benefit of a license and because the applicant falsely advised the DOS during the investigation that she did not post certain advertisements (State s Ex. 1). 4) DLS referred the matter to this tribunal on May 24, On or about June 19, 2012 DLS sent to the applicant the complaint and a notice of hearing, by certified and regular mail (State s Ex. 1). 5) DOS investigator Jack Bilello (hereinafter Inv. Bilello ) testified that while investigating the Hecht Group, he discovered that the applicant was being represented on the company website as the listing agent for numerous real properties; that she was being represented on the website (Craigslist) as the listing agent for numerous real properties; that she was represented on the website (New York Times) as the listing agent in a real property advertisement; and that she represented the website www. linkedin.com (LinkedIn) that she was a Real Estate Agent at the Hecht Group, and that she held the position since October, 2010 (State s Ex. 1, Att. C & Ex. 3). 6) By letter dated March 17, 2011, with the aforementioned advertisements enclosed, DOS requested that the applicant provide explanatory information and signed written statements regarding the information uncovered by the DOS investigation (State s Ex. 1, Att. D & Ex. 4). The applicant responded with a letter received by DOS on or about May 9, She stated, Those ads have my name on and information but I do NOT understand how they got to be advertised (State s Ex.1, Att. E & Ex. 5). In the letter she further claimed that the system at Hecht Group had technical problems, and that she did not practice real estate or deal in any way with clients. She explained, I didn t place those ads with knowledge I am advertising properties. 7) DOS obtained, via a subpoena, confirmation from Craigslist that the advertisements on the website with the applicant s contact information were posted through the applicant s Hecht Group address (State s Ex. 1, Att. F & Ex. 6). On cross-examination, Inv. Bilello testified that he did not make an inquiry into whether the Craigslist account was created by the applicant. 8) In a memorandum dated February 27, 2012, Inv. Bilello stated that the applicant s claim that she did not post the advertisements was not credible because her sponsoring real estate broker, Amnon Hecht, told the investigator that she did post the advertisements, that she was the only person who possessed the password that would have enabled her to do so, and that he did not give her permission to do so (State s Ex. 8).

3 9) The applicant testified that Amnon Hecht s statements to Inv. Bilello concerning the advertisements were not accurate. She explained that she did not pay for any advertisements or set up any accounts with the websites containing the postings. She testified that once her and password information was saved in the office system, it remained connected to the websites. She stated the Hecht Group paid for all advertising and used that fact as an enticement for employees. The applicant suggested Amnon Hecht would have been aware of the advertising since the company was paying for it. She further claimed that when she trained at Hecht Group she worked almost exclusively with Amnon Hecht s brother Ed Hecht, who trained her. The applicant stated that Ed Hecht told her: You know what, there is an investigation going on. You re going to say that you post, and if anything happens, if there is a fee associated with it, don t worry, we ll take care of it. She testified that she declined his offer and told him it would not be fair. 10) The applicant testified that she did identify herself as a Real Estate Agent on both her LinkedIn and (Facebook) webpages to let her friends know that she was going to be doing real estate. She denied intentionally posting advertisements on Craigslist and New York Times websites. She explained that during training she was asked to take property descriptions that were already on the Hecht Group website and rewrite them in her own words. She stated that she was being trained on the language, on how to create posts, and that she received positive feedback from Ed Hecht on her finished descriptions. She stated she believed these advertisements were being saved to the office computer system, and available on the website of the company. She explained she believed the public would see the listings when they visited the agency website, but never intended to post advertising on any other websites. She testified she may have inadvertently posted the advertising to other sites because there was posting system whereby, many different posts could be automatically posted, after creating a single post. She testified that some of the postings occurred when she was out of the country and, therefore, she could not have done those. The applicant testified she intentionally indicated she was a Real Estate Agent because she believed she was licensed after passing her state exam. 11) The applicant testified that she was an unpaid trainee and did not engage in any unlicensed activity. She explained she was shown some real property, and took pictures, but never had dealings with clients. She also stated that she was not compensated for any unlicensed activity, but admitted that one month into training she requested and received one advance payment of about $ from Hecht Group. She said she had been struggling financially since she was receiving no income, commuted from Staten Island, and lived with her parents-in-law while her husband was an active-duty Marine. 12) The applicant testified she chose to train at the Hecht Group because she believed she would learn and receive guidance from experienced professionals. She testified that she thought that once she passed the examination she was licensed, and that Ed Hecht did not ask for her actual license until months into the training.

4 13) As of July 12, 2012, the applicant was represented on the website (Nest Seekers) as a Licensed Real Estate Agent, with her contact information provided (State s Ex. 7). The applicant confirmed that the phone number provided on the website was hers. She further testified that she reached out to Nest Seekers to request to be associated with the company if her license was granted, since she no longer wished to be associated with the Hecht Group. She also stated that she did not engage in unlicensed activity through Nest Seekers, and made it explicitly clear she was not licensed when she explained her involvement with the Hecht Group and the DOS investigation. OPINION I As the person who requested the hearing, the burden is on the applicant to prove, by substantial evidence, that she is sufficiently trustworthy to be licensed as a real estate salesperson. Real Property Law (RPL) 441[1-A][b]; 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. 300 Gramatan Avenue Associates v. State Div. of Human Rights, 45 NY2d 176, , 408 NYS2d 54, (1978); Tutuianu v. New York State, 22 AD3d 503, 802 NYS2d 465 (2 nd Dept. 2005) (citations omitted). 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) (citations and quotation marks omitted). II - Pursuant to Real Property Law 440-a, it is unlawful for a person to act as a real estate salesperson without being licensed. The applicant knowingly advertised property on the public website of the Hecht Group. Although she maintained she was only training, she also stated she believed she was licensed because she had passed her exam. While the applicant has demonstrated that she was absolutely ill-trained and ill-advised by the supervisor she relied on, that fact does not absolve her of her responsibility to understand what it means to be licensed. In short, her ignorance does not excuse her conduct. Hricik v. McMahon, 247 A.D.2d 935, 668 N.Y.S.2d 295 (4 th Dept. 1998) (petitioner s alleged ignorance of the law failed because he is charged with knowledge of the law and of State Police procedures); Rubin v. Tax Appeals Tribunal of State of New York, 29 AD3d 1089, 814 NYS2d 804 (3 rd Dept. 2006) (petitioner did not meet her burden of proving her ignorance of the law and reliance on erroneous professional advice). The applicant is required to have knowledge of the requisite rules and regulations for licensure as a real estate salesperson. It does not appear the applicant intentionally mislead investigators at the Department of State. She testified credibly that her employer paid for all advertising, that there was an automatic posting system she may have inadvertently misused, and that she was not the only person capable of posting advertisements under her name. According to her own testimony, when she posted the listings on the Hecht Group website, she intended for the people to view them. She also admitted that she intentionally held herself out as a licensed real estate

5 salesperson online. When she posted advertisements on the company website and misrepresented her license status, she engaged in misleading advertising and put the public at risk. Though these acts she demonstrated incompetence. The applicant simply has not met her burden of proving she is worthy of public trust. The applicant may re-apply for licensure in the future. Should she decide to reapply, she is encouraged to work and/or volunteer in a capacity that allows her to demonstrate and establish her competence and trustworthiness before re-applying. DETERMINATION WHEREFORE, IT IS HEREBY DETERMINED THAT the application of Linor Shefer, for a real estate salesperson license, is denied. Dated: October 4, 2012 Ziedah F. Giovanni Administrative Law Judge

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