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39. Offers of Mitigation/Restitution

164 DOS 92 Matter of Christiana & Manor Homes by Blake - prompt discontinuance of improper program and offer to refund monies still held are mitigating factors; reprimand and provide complete restitution

1 DOS 98 Matter of DOS v. Fiumera - proper business practices; broker licensed in her individual name violates RPL §440-a when not also licensed as an associate broker while working under the name and auspices of another broker; broker not required to disgorge commission where individually licensed and additional associate broker’s license would be issued pro forma upon payment of licensing fee; broker did not engage in fraudulent practice when advised homeowner that radon report was acceptable when reasonably acted upon advice given to her by the party taking the test; broker’s offer to pay for remedial work indicates a good faith offer of settlement; $250 fine

107 DOS 98 Matter of DOS v. Sosis - subject matter jurisdiction; due process; failure to appear at hearing; proper business practices; deposits; fraudulent practice; DOS fails its burden of proof; DOS has subject matter jurisdiction if at the time the disciplinary proceeding was commenced by proper service of a notice of hearing and complaint the party was (i) licensed to engage in regulated real estate activities, or (ii) an applicant for either a license or for the renewal of a license to engage in regulated real estate activities, or (iii) eligible to automatically renew the prior license under the two-year limitation provision of RPL §441(2); ex parte hearing is permissible upon proof of proper notice of hearing; DOS has subject matter jurisdiction where party was licensed at the time proceeding was commenced and, where at time of hearing, although not licensed was eligible to automatically apply to renew pursuant to RPL §441(2); licensee operated a real estate brokerage business under an unlicensed name; licensee unlawfully retains deposit funds after deposit monies were delivered on the condition that same were to be disbursed only on the principal’s consent and approval and said consent and approval was not given; licensee’s illegal exercise of right of ownership over his principal’s funds spawns conversion and constitutes a fraudulent practice; DOS fails its burden of proof to establish licensee failed to deposit trust funds in a segregated escrow account, engaged in fraud and changed business location without notice to DOS; restitution ordered in the amount of $1,900 plus interest, fine of $1,000 and any further application for licensure shall not be considered until applicant pays said fine and provides proof of payment of restitution

869 DOS 01 Matter of DOS v. Hecht - commission; restitution; vicarious liability; the amount of the fee charged by a real estate broker and the fee’s relevance to actual services performed are proper issues for consideration; a real estate broker’s compensation is not regulated by statute and is not legally fixed by custom and usage; power to contract is not unlimited; where a real estate broker fixes a fee far in excess of rates established by custom and usage for a particular brokerage service in the community involved, the amount of the fee must be relevant to and represent charges for some legitimate service actually performed by the broker; element of unconscionability exists where fee charged is three times the maximum fee established by custom and usage; corporate broker liable for the cognitive acts of its representative real estate broker; restitution may be ordered where the brokerage agreement is unconscionable; broker ordered to refund amount in excess of the maximum fee established by custom and usage

203 DOS 02 Matter of DOS v. Gajadharsingh - proof of qualifying experience; offers of settlement; respondent obtained renewal of his salespersons license without complying with continuing education requirement; respondent offered opportunity to pay fine of $500 and complete required courses; salespersons license suspended for a period of time equivalent to that during which he held his license without taking the required courses plus a reasonable amount of additional time to serve as a penalty

204 DOS 02 Matter of DOS v. Zarum - proof of qualifying experience; offers of settlement; respondent obtained renewal of his salespersons license without complying with continuing education requirement; respondent offered opportunity to pay fine of $500 and complete required courses; salespersons license suspended for a period of time equivalent to that during which he held his license without taking the required courses plus a reasonable amount of additional time to serve as a penalty

215 DOS 02 Matter of DOS v. Schutz - failure to appear at hearing; proof of qualifying experience; offer of settlement; ex parte hearing may proceed upon proof of proper service; applicant obtains license renewal without completion of required continuing education courses; respondent offered opportunity to pay fine of $500 and complete required courses; salespersons license suspended for a period of time equivalent to that during which she held her license without taking the required courses plus a reasonable amount of additional time to serve as a penalty

309 DOS 02 Matter of DOS v. Lalla - failure to appear at hearing; proof of qualifying experience; offer of settlement; ex parte hearing may proceed upon proof of proper service; respondent obtained renewal of his license without complying with continuing education requirements; respondent offered opportunity to resolve the matter by payment of a $500 fine and completion of the required continuing education courses; salespersons license suspended for a period of time equivalent to that during which he held his license without taking the required courses plus a reasonable amount of time to serve as a penalty

326 DOS 07 Matter of Martin- general appraiser; failure to complete continuing education, false affirmation, disregard of offer to resolve; revocation

472 DOS 08 Matter of Abdullah – salesperson, forging of client name on §443 form; misrepresentation in activity as dual agent; revocation and restitution of $3,625 plus interest if ever reapply

1504 DOS 08 Matter of Martin – appraiser assistance; CE; failure to complete; mitigation; good faith belief that ethics course interchangeable with USPAP course; reprimand

1523 DOS 08 Matter of Fuller – salesperson; CE; untimely completion; mitigation; 1-month suspension

1524 DOS 08 Matter of Janeke – salesperson; CE; dismissal of charge of failure to cooperate; mitigation; had signed up prior renewal and completed within one month; $500 fine

357 DOS 09 Matter of Spinola – appraiser; CE mitigation and hardship; provide proof by specified date or suspension

740 DOS 09 Matter of Talman—salesperson; CE; mitigation; reprimand

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