Opinion
June 29, 1987
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
The petitioners were found to have violated a "non-solicitation order" issued by the Secretary of State on December 20, 1973, prohibiting brokers from soliciting listings of properties for sale in certain neighborhoods in Queens County, in order to prevent "blockbusting".
The nonsolicitation order did not violate the petitioners' right to commercial free speech (see, Matter of Cohen v Shaffer, 118 A.D.2d 643). The governmental interest in preventing blockbusting is substantial and is directly advanced by the nonsolicitation order, the goal of which could not have been as well served by an order less restrictive of commercial speech (see, Central Hudson Gas Elec. v Public Serv. Commn., 447 U.S. 557; Matter of Cohen v Shaffer, supra).
Since there is "a sufficient `fit' between the legislature's means and ends to satisfy the concerns of the First Amendment, the same `fit' is surely adequate under the applicable `rational basis' equal protection analysis" (Posadas de Puerto Rico Assocs. v Tourism Co., 478 US ___, ___, n 9, 106 S Ct 2968, 2979, n 9). Moreover, the order satisfies due process requirements since it is a legitimate response to blockbusting practices and the accompanying atmosphere of fear and panic achieved through solicitations by real estate salesmen (see, Matter of Cohen v Shaffer, supra).
Furthermore, the nonsolicitation order is a valid exercise of the Secretary of State's authority to issue appropriate regulations deemed necessary to implement the legislative intent behind Real Property Law article 12-A (see, Heinemann Agency v Ghezzi, 49 A.D.2d 747; Thompson v Lomenzo, 78 Misc.2d 298, affd 48 A.D.2d 869; Campagna v Shaffer, 131 Misc.2d 1029).
The testimony at the hearing clearly produced substantial evidence that the petitioners demonstrated untrustworthiness and incompetency thereby meeting the standard set by Real Property Law § 441-c to suspend their licenses (see, Matter of Butterly Green v Lomenzo, 36 N.Y.2d 250; Matter of Gold v Lomenzo, 29 N.Y.2d 468; Matter of Nevada Realty Corp. v Paterson, 90 A.D.2d 485, lv denied 58 N.Y.2d 604). Since a real estate broker enjoys a position of trust and confidence (see, Matter of Sullivan Co., 289 N.Y. 110) and since brokers have an affirmative duty to supervise their sales personnel (see, 19 NYCRR 175.21), the Hearing Officer's determination was not arbitrary, capricious or an abuse of discretion (see, Matter of Hawley v Cuomo, 46 N.Y.2d 990). Moreover, the petitioner Ann Russo was adequately advised of the charges against her (see, Matter of Friedman v Paterson, 89 A.D.2d 701, affd 58 N.Y.2d 727; Matter of Berlow v Lomenzo, 49 A.D.2d 160).
We further find that the imposition of a 60-day suspension of the petitioners' licenses was not "`"so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness"'" (Matter of Pell v Board of Educ., 34 N.Y.2d 222, 233; see, Matter of Cohen v Shaffer, 118 A.D.2d 643, supra). Mangano, J.P., Niehoff, Kooper and Spatt, JJ., concur.