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12. Cease-and-Desist

71 DOS 92 Matter of DOS v. Century 21 Best, Inc. - complaining witness received more than one solicitation from firm - ALJ rejects "fact" defense of third party intermeddling - $500 fine or 3-month suspension

94 DOS 92 Matter of DOS v. Active Home Sales - inadvertent violation due to failure to completely cull "C&D" list names from mailing list - reprimand

128 DOS 92 Matter of Contempo - applies 1990 cease-and-desist list as effective until 12/31/91; interprets "flyers" as proscribed solicitations to potential home sellers; cease-and-desist applies only to 1-3 family dwellings; dismiss charge re: a 4-family dwelling

96 DOS 96, Matter of DOS v. Metro Federal Realty Corp. - Deliberate mailings of solicitation material to homeowners in a cease and desist zone are tantamount to untrustworthiness and incompetence; representative broker knowingly violated DOS Regulations 175.17 and 175.21 where he knew a cease and desist list existed, failed to obtain a copy of the cease and desist list, deliberately mailed solicitations to homeowners in the cease and desist zone, and did not advise associated salesperson of the existence of the cease and desist zone; respondeat superior; vicarious liability; corporate broker liable for representative broker’s violations of licensing regulations where representative broker knowingly committed same within scope of regulated brokerage business; representative broker’s knowledge of the wrongful acts is imputed to the corporate broker; $3,000 fine ($500 for each violation)

55 DOS 96, Matter of DOS v. David - cease and desist; duty to supervise sales associates; solicitation of homeowner on cease and desist list by salesperson demonstrated incompetency; salesperson’s reliance on response of homeowner during prior “cold call” not valid where homeowner then on cease and desist list; representative brokers did not fail to properly supervise salesperson where brokers had distributed cease and desist list to salespersons and instructed them on its use on several occasions; fine imposed after determination of violation may be higher than settlement offer; however, penalty should not be imposed for exercising right to hearing where honest belief of no wrong-doing; charges dismissed against representative brokers; salesperson fined $300.00

89 DOS 96, Matter of DOS v. J.A.V. Realty Corp. - cease and desist; inadvertent violation; mailing one solicitation letter to one homeowner listed on cease and desist list without allegations of any further violation is not tantamount to untrustworthiness or incompetence; licensee’s office systems include specific procedures designed to prevent solicitation of listings on cease and desist lists; inadvertent act is technical violation of Reg. 175.17; licensee warned further determination of violation could result in assessment of penalty

151A DOS 97 Matter of DOS v. Vargas - cease and desist; prior dismissal of charge against broker for violation of 19 NYCRR 175.17(c)(1) for solicitation of a listing of a residential home for sale from a homeowner whose name and address appear on the cease and desist list is reversed on appeal by DOS; license of broker may not be suspended or revoked under the holding in Roberts Real Estate v. Dept. of State (80 N.Y.2d, 116 (1992)) where broker did not have actual knowledge of the violation and did not retain some benefit arising out of it; broker is liable for failure to properly supervise salesperson; $300.00 fine

271 DOS 97 Matter of DOS v. Solomon - due process; cease and desistex parte hearing is proper upon properly served notice of hearing; broker demonstrated incompetency where he did not act wilfully but negligently solicited homeowner listed on cease and desist list in violation of 19 NYCRR 175.17(c)(1); broker having rejected settlement offer ($300.00), it is proper to impose a fine in a greater amount; $500.00 fine

351 DOS 97 Matter of DOS v. Ocasio - cease-and-desist; DOS fails its burden of proof; an essential element of a charge of soliciting a listing for sale from a person on a cease-and-desist list is that the solicitation was delivered to the homeowner at her home; DOS fails to establish that solicitation was received at homeowner’s home; homeowner fails to testify at hearing, fails to provide envelope within which soliciting flyer was received and provides unsworn statement; charges dismissed

203 DOS 98 Matter of DOS v. Shariff -- cease and desist; DOS fails its burden of proof; DOS fails to establish how improper solicitations were received at two homes listed on cease-and-desist list; broker provided pre-addressed cards for homes not listed on the cease and desist list, instructed assistant not to deliver cards to homes on the list and provided the assistant with a copy of the cease-and-desist list; charges dismissed

240 DOS 98 Matter of DOS v. Cordial Realty Group -- failure to appear at hearing; cease-and-desist; ex partehearing is permissible upon proof of proper service; licensee demonstrated untrustworthiness and incompetency by soliciting a listing for sale of a house included on a cease-and-desist list; $500 fine

241 DOS 98 Matter of DOS v. Himark Realty -- failure to appear at hearing; cease-and-desist; duty to supervise sales associates; vicarious liability; ex parte hearing is permissible upon proof of proper service; salesperson inadvertently calls home listed on cease-and-desist list which demonstrates incompetency; broker is obligated to supervise real estate brokerage activities of its salespersons and is vicariously liable for their misconduct, limited only with regard to penalty in cases where the broker lacked actual knowledge of misconduct or did not retain any benefit derived from that misconduct; corporate broker, representative broker and salesperson each to pay $250 fine

243 DOS 98 Matter of DOS v. Top Star Realty Corp. -- failure to appear at hearing; cease-and-desist; vicarious liability; ex parte hearing may proceed upon proof of proper service; delivering flyer in mailbox of home on cease and desist list violates 19 NYCRR 175.21; broker is obligated to supervise brokerage activities of its salespersons; broker is vicariously liable for the misconduct of his salespersons, limited only with regard to penalty in cases where the broker lacked actual knowledge of misconduct or did not retain any benefit derived from that misconduct; corporate broker, representative broker and salesperson each fined $250

274 DOS 98 Matter of DOS v. Queens Express Realty Co. -- cease-and-desist; duty to supervise sales associates; vicarious liability; telephone call from personal assistant to homeowner on cease-and-desist list violated 19 NYCRR 175.17; subsequent appointment at homeowner’s home by broker at homeowner’s request does not violate 19 NYCRR 175.17; one telephone solicitation inadvertently made to one home on cease-and-desist list is not tantamount to untrustworthiness or incompetence and does not support allegation that broker failed to supervise; corporate broker and representative broker may be held vicariously liable for the violation of regulation by an employee acting within the scope of employment and may be assessed a penalty, excluding a suspension or revocation; broker and salesperson to pay total fine of $500

121 DOS 98 Matter of DOS v. Polanco -- cease and desist; DOS fails its burden of proof; flyer that attempts to obtain a listing of residential property for sale is a solicitation within 19 NYCRR 175.17; DOS failed to prove violation of cease and desist regulation where evidence consisted of one solicitation to homeowner on cease and desist list and there is no evidence of how or when this solicitation reached the homeowner’s premises

162 DOS 98 Matter of DOS v. Ettinger-- cease and desist; inadvertent mailing of flyer to home listed on cease and desist list constitutes incompetence; $500.00 fine

163 DOS 98 Matter of DOS v. Henry -- cease and desist; due process; ex parte hearing permissible upon completion of proper service; inadvertent mailing of flyer to home listed on cease and desist list constitutes act of incompetence; DOS failed to make proper service of notice on one respondent and complaint dismissed as against him; $500.00 fine imposed on respondent properly served

164 DOS 98 Matter of DOS v. Abramova -- cease and desist; inadvertent delivery of flyer to home on cease and desist list constitutes incompetence; $500.00 fine

37 DOS 99 Matter of DOS v. Gargiullo - cease and desist; solicitation of listing for sale from homeowner on cease and desist list; proper to consider broker’s refusal of prior offered settlement to pay fine of $500.00 and fact that current offense was not the first time that broker unlawfully solicited a homeowner on the cease and desist list; $1,000.00 fine

300 DOS 00 Matter of DOS v. Centti - cease and desist; mailing in error of a single, isolated solicitation, while a violation of statute and regulation, is not a demonstration of either untrustworthiness or incompetency and does not merit the imposition of a license revocation, suspension or fine; reprimand

302 DOS 00 Matter of DOS v. Focer - cease and desist; failure to appear at hearing; vicarious liability; mailing in error of a single, isolated solicitation, while a violation of statute and regulation, is not a demonstration of either untrustworthiness or incompetency; broker cannot be held liable for violation by his salesperson or associate broker unless broker has actual knowledge of the violation and retains some benefit from that violation; charges against associate broker dismissed where evidence insufficient to establish proper service; charges dismissed

332 DOS 00 Matter of DOS v. Joseph - cease and desist; duties to supervise sales associates; vicarious liability; broker cannot be held liable for making of telephone call to person on cease and desist list where no evidence that broker knew that the call was being made or that he retained some benefit therefrom; no allegation broker failed to properly supervise; complaint dismissed

332A DOS 00 Matter of DOS v. Joseph - on remand after appeal, broker is liable for the misconduct of his employee in soliciting a listing of a house on a cease and desist list even though the broker was unaware of the misconduct and received no benefits from it; proper to impose a higher fine where licensee was offered the opportunity to resolve the matter through the payment of a fine ($500.00) but did not accept the offer; $750.00 fine

490 DOS 00 DOS v. Agnesini Realty, Inc. - cease and desist; DOS fails its burden of proof; real estate related materials contained in envelopes left in the gate of a homeowner listed on the cease and desist list are solicitations and a violation of 19 NYCRR 175.17; DOS fails to establish when, how or by whom the envelopes were distributed and fails to prove that licensees made the solicitation; complaint dismissed

600 DOS 00 Matter of DOS v. Cohen - cease and desist; proof establishes broker was responsible for solicitations to homeowner whose name appears on cease and desist list; proper in setting penalty to consider both the fact that prior to scheduling the hearing broker was offered the opportunity to resolve the matter through the payment of a fine ($500.00) which he did not accept and that broker apparently attempted to mislead tribunal through false testimony; $1,000.00 fine

137 DOS 01 Matter of DOS v. Polanco - cease and desist; DOS fails its burden of proof; hearsay; hearsay testimony, although admissible, is not entitled to the same weight as sworn testimony subject to cross examination; DOS fails its burden of proof in establishing violation of cease and desist regulation where only evidence that flyer was delivered to home on the cease and list was homeowner’s hearsay letter that flyer was in her door; homeowner failed to appear at hearing; broker testified that flyer was left on automobile in a public place; complaint dismissed

238 DOS 01 Matter of DOS v. Empire Home Sales, Inc. - cease and desist; prior violation; duty to supervise sales associates; vicarious liability; salesperson sends two solicitations to homes on cease and desist list; representative broker fails to properly supervise sales associate; representative broker can only be fined for violation by salesperson unless broker knew of the violation at the time of its occurrence or that he profited from it; broker had paid fines ranging from $200 to $600 on six separate complaints over prior three year period; broker’s and salesperson’s license suspended for two months

618 DOS 00 Matter of DOS v. Sulaman - cease and desist; amendment of pleading to conform to the proof; complaint amended to conform to the proof where issue is fully litigated; compliant alleged violation of Reg. 175.17 for soliciting a listing when in fact what was solicited was the actual sale; cease and desist regulation applies to all licensed broker’s regardless of in what capacity they act; broker bound by cease and desist regulation even though he was acting as a purchaser of the property and not in his capacity as a real estate licensee; $500.00 fine


633 DOS 00 Matter of DOS v. Romani - cease and desist; failure to appear at hearing; salesperson’s testimony that she was unaware that the area in which she was distributing flyers was covered by the cease and desist list demonstrates incompetency; fact that salesperson refused to accept offer of fine of $500.00 to resolve the matter may be considered in imposing fine; $600.00 fine

85 DOS 06 DOS v. Koudougnon- cease and desist; salesperson distributed flyers soliciting listings for sale to home in cease and desist zone; salesperson offered opportunity to pay a fine of $500.00 dollars and refused; salesperson fined $1,000.00

86 DOS 06 DOS v. Razik- cease and desist; through salesperson and associate broker, broker solicited, on three occasions, sale of property included on a cease and desist list; broker offered the opportunity to pay a fine of $1,500.00; broker fined $3,000.00

138 DOS 06 DOS v. Husan- cease and desist; DOS fails its burden of proof; homeowner of house listed on cease and desist list allegedly found a lone business card containing brokers’ names, business address and telephone numbers; broker does not distribute their business cards without other accompanying literature and without first determining if a person is on a cease and desist list; all evidence as to how the business card came into the homeowner’s possession is the hearsay testimony of DOS investigator; broker testified that neither her nor anyone else in his office put the card in homeowner’s mailbox; complaint dismissed

146 DOS 06 DOS v. Razik- re-opening; cease and desist; matter re-opened in the interest of justice upon broker’s request; although notice had been properly served, there was no evidence that the original notice of hearing had been delivered; broker previously paid fines in settlement of two previous cease and desist violations; broker posts the cease and desist list on his computer server, holds regular staff meetings to emphasize the need to use the list to avoid improper solicitation, and previously dismissed a salesperson who failed to take the obligation seriously; salesperson sent three mailings to a home on the cease and desist list; representative broker may be held liable for the violations but may only be fined for those violations and his license cannot be suspended or revoked without a showing that he knew of the violations at the time of their occurrence or that he profited from them; no valid purpose would be served by penalizing broker for improper solicitations by his salesperson where broker has taken all reasonable steps to assure that salespersons abide by the law; complaint vacated

701 DOS 06 DOS v. Martinez- cease and desist; DOS fails its burden of proof; evidence established that solicitation was left for the owners at a home listed on the cease and desist list but did not establish how the card got to that home; salesperson’s credible testimony established that he regularly maintains copies of the cease and desist lists, that he is very careful about where he goes and leaves his cards and that it could not have been him who placed the card on the door of the home on the cease and desist list; complaint dismissed

707 DOS 06 DOS v. Roopnaraine- cease and desist; settlements; broker admitted to having mailed a solicitation to a home on the cease and desist list claiming that the mailing was done in error; broker’s defense is at best an admission of incompetency; tribunal considers fact that prior to scheduling of the hearing, broker was offered to resolve the matter through the payment of a fine of $500.00; it is proper to impose a fine higher than that which was asked for in the settlement offer; broker fined $1,000.00

977 DOS 06 DOS v. Assaf- cease and desist, prior violation consent order; decline offer of another consent order; inadvertent violation and expression of regret, imposition of a fine is not appropriate

978 DOS 06 DOS v. Licht- cease and desist; failure to go forward with consent order; inadvertent violation and expression of regret; imposition of a fine is not appropriate

4 DOS 07 Matter of Gutriman – cease-and-desist, expired license, due process, failure to serve complaint at last known business address, dismissal without prejudice

6 DOS 07 Matter of Kent – cease-and-desist, previous business in Nassau Co., unaware of c&d list in Queens, reprimand

128 DOS 07 Matter of Martin- broker, license renewal, prior misconduct, inadvertent cease and desist violation; commission checks written after suspension, but no requirement to be licensed in order to write checks; inadvertent violation of continuing education requirement due to negligent signing of application; renewal granted

1015 DOS 07 Matter of Francis- cease and desist; refusal of settlement offer of $750; fine of $1,000

1438 DOS 07 Matter of Assaf- cease and desist as to person regularly engaged in trade of buying and selling real estate; prior violation of cease order with $150 fine; inadequate procedures; $500 fine

1923 DOS 07 Matter of Razik- broker; failure to supervise; two cease and desist violations; system by which can check c&d list; no advance knowledge of distribution of flyers; prior c&d violations; maximum fine $3,000.

2238 DOS 07 Matter of Baione- broker; cease and desist; duty to supervise; $1,000 fine for salesperson and for broker

2242 DOS 07 Matter of Binaminov- salesperson; conviction of felony for grand larceny; no evidence of certificate of good conduct or certificate of relief from civil disabilities; failure to cooperate; license expired and licensee automatically disqualified under RPL §440-a; complaint dismissed as moot

318 DOS 08 Matter of Cohen – salesperson; c&d violation; no testimony from complainant at hearing; complaint dismissed

464 DOS 08 Matter of Abunasar – salesperson; cease and desist; absence of direct evidence; charge dismissed

466 DOS 08 Matter of Peretz – salesperson; cease and desist; refused opportunity to settle for $750; $1,000 fine

990 DOS 08 Matter of Ahmad – broker; cease and desist 175.17; failure to accept offer of settlement; previous similar misconduct; failure to take precautions to prevent violations from recurring; one-month suspension

28 DOS 09 Matter of Hystality – cease and desist; isolated violation; $500 fine

106 DOS 09 Matter of Pan – salesperson; operating without proper affiliation; cease and desist; $500 fine

256 DOS 09 Matter of Levin – broker; cease and desist; isolated incident; duty to supervise; dismissal of charge of unlicensed name due to DOS failure to respond and efforts to process change of name

300 DOS 09 Matter of Reyes – salesperson; cease and desist; improper business card; reprimand

1105 DOS 09 Matter of Metalios – C&D; isolated incident by salesperson in violation of corporate policy; duty of supervision does not require being aware of activities every minute; complaint dismissed

1174 DOS 09 Matter of Folan – C&D; credible testimony re: procedure; complaint dismissed

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