S T A T E O F N E W Y O R K
________________________________________________________________________
3187
2009-2010 Regular Sessions
I N A S S E M B L Y
January 23, 2009
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Introduced by M. of A. PHEFFER -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the real property law, in relation to fines and proce-
dures in connection with misconduct by real estate brokers and sales-
persons
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (a) of subdivision 1 of section 441-c of the real
property law, as amended by chapter 81 of the laws of 1995, is amended
to read as follows:
(a) The department of state may revoke the license of a real estate
broker or salesman or suspend the same, for such period as the depart-
ment may deem proper, or in lieu thereof may impose a fine not exceeding
[one] TEN thousand dollars payable to the department of state, or a
reprimand upon conviction of the licensee of a violation of any
provision of this article, or for a material misstatement in the appli-
cation for such license, or if such licensee has been guilty of fraud or
fraudulent practices, or for dishonest or misleading advertising, or has
demonstrated untrustworthiness or incompetency to act as a real estate
broker or salesman, as the case may be. In the case of a real estate
broker engaged in the business of a tenant relocator, untrustworthiness
or incompetency shall include engaging in any course of conduct includ-
ing, but not limited to, the interruption or discontinuance of essential
building service, that interferes with or disturbs the peace, comfort,
repose and quiet enjoyment of a tenant.
S 2. Subdivision 2 of section 441-e of the real property law, as
amended by chapter 505 of the laws of 2001, is amended to read as
follows:
2. Revocation, suspension, reprimands, fines. The department of state
shall, before revoking or suspending any license or imposing any fine or
reprimand on the holder thereof or before imposing any fine upon any
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06850-01-9
A. 3187 2
person not licensed pursuant to this article who is deemed to be in
violation of section four hundred forty-two-h of this article, and at
least ten days prior to the date set for the hearing, notify in writing
the holder of such license or such unlicensed person of any charges made
and shall afford such licensee or unlicensed person an opportunity to be
heard in person or by counsel in reference thereto. Such written notice
may be served by delivery of same personally to the licensee, or by
mailing same by certified mail to the last known business address of
such licensee or unlicensed person, or by any method authorized by the
civil practice law and rules. If said licensee be a [salesman] SALESPER-
SON, the department shall also notify the broker with whom he OR SHE is
associated of the charges by mailing notice by certified mail to the
broker's last known business address. The hearing on such charges shall
be at such time and place as the department shall prescribe, WHICH
PLACE, IN THE CASE OF ANY HEARING RELATING TO A CHARGE ARISING OUT OF AN
ALLEGED VIOLATION OF SECTION FOUR HUNDRED FORTY-TWO-H OF THIS ARTICLE,
SHALL BE WITHIN THE COUNTY WHEREIN THE REAL PROPERTY IN CONNECTION WITH
THE CHARGE ARISES IS LOCATED.
S 3. Paragraph (a) of subdivision 3 of section 442-h of the real prop-
erty law, as amended by chapter 505 of the laws of 2001, is amended and
a new subdivision 4 is added to read as follows:
(a) If the secretary of state determines that some owners of residen-
tial real property within a defined geographic area are subject to
intense and repeated solicitation by real estate brokers and salesper-
sons to place their property for sale with such real estate brokers or
salespersons, or are subject to intense and repeated solicitation by
other persons regularly engaged in the trade or business of buying and
selling real estate to sell their real estate, the secretary of state
may adopt a rule establishing a cease and desist zone, which zone shall
be bounded or otherwise specifically defined in the rule. After the
secretary of state has established a cease and desist zone, the owners
of residential real property located within the zone may file an owner's
statement with the secretary of state expressing their wish not to be
solicited by real estate brokers, salespersons or other persons regular-
ly engaged in the trade or business of buying and selling real estate.
The form and content of the statement shall be prescribed by the secre-
tary of state. After a cease and desist zone has been established by the
secretary of state, no real estate broker, salesperson or other person
regularly engaged in the trade or business of buying and selling real
estate shall solicit a listing from any owner who has filed a statement
with the secretary of state if such owner's name appears on the current
cease and desist list prepared by the secretary of state. The prohibi-
tion on solicitation shall apply to direct forms of solicitation such as
the use of the telephone, the mail, personal contact and other forms of
direct solicitation as may be specified by the secretary of state. FOR
THE PURPOSES OF THIS SECTION, THE FOLLOWING SHALL CONSTITUTE A REBUTTA-
BLE PRESUMPTION OF SOLICITATION: A COMPLAINT BY A HOMEOWNER; THE TESTI-
MONY OF A HOMEOWNER OR INDEPENDENT WITNESS; OR ANY DOCUMENT LISTING THE
NAME, ADDRESS, OR TELEPHONE NUMBER OF A LICENSEE SEEKING TO PURCHASE OR
BROKER THE PURCHASE OF A HOME.
4. THE SECRETARY OF STATE SHALL PUBLISH ANNUALLY, ON OR BEFORE DECEM-
BER THIRTY-FIRST OF EACH YEAR, A LIST ORGANIZED BY ZIP CODE, OF ALL
FINES, SUSPENSIONS, AND REVOCATIONS IMPOSED UPON LICENSEES FOR VIOLATION
OF THIS SECTION.
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S 4. Paragraph (c) of subdivision 3 of section 442-h of the real prop-
erty law, as amended by chapter 505 of the laws of 2001, is amended to
read as follows:
(c) No rule establishing a cease and desist zone shall be effective
for longer than five years. However, the secretary of state may re-adopt
the rule to continue the cease and desist zone for additional periods
not to exceed five years each. AT LEAST NINETY DAYS PRIOR TO THE EXPI-
RATION OF A CEASE AND DESIST ZONE RULE, THE SECRETARY OF STATE SHALL
HOLD PUBLIC HEARINGS WITHIN EACH SUCH CEASE AND DESIST ZONE. AT LEAST
SIXTY DAYS PRIOR TO THE EXPIRATION OF A CEASE AND DESIST ZONE, THE
SECRETARY OF STATE SHALL REPORT TO THE LEGISLATURE WHETHER OR NOT SUCH
CEASE AND DESIST ZONE IS BEING READOPTED AND THE REASON FOR SUCH DETER-
MINATION. Whenever a rule establishing a cease and desist zone shall
have expired or shall have been repealed, all owner's statements filed
with the secretary of state pursuant to that rule shall also expire.
However, an owner may file a new statement with the secretary of state
if a new rule is adopted establishing a cease and desist zone containing
the owner's property. Once the boundaries of a cease and desist zone
have been established by rule of the secretary of state, the boundaries
may not be changed except by repeal of the existing rule and adoption of
a new rule establishing the new boundaries.
S 5. This act shall take effect immediately; provided that sections
one and two of this act shall take effect on the first of January next
succeeding the date on which it shall have become a law; and provided
further that the secretary of state is authorized to promulgate any and
all rules and regulations and take any other measures necessary to
implement this act on its effective date on or before such date.