THE DEPARTMENT OF STATE LICENSING COMPLAINT RESOLUTION PROCESS
- The Complaint
- The Investigation
- The Hearing and Decision
The Department of State is provided statutory authority for the licensing and regulation of various occupations. These include, but are not limited to, real estate brokers and salesmen, private investigators and security guard companies, barbers and cosmetologists, notaries public, alarm installers, hearing aid dealers and real estate appraisers. Persons or businesses licensed by the Department of State are subject to various statutes and regulations designed to protect the public from untrustworthy or incompetent persons or businesses. The Department of State investigates complaints against licensees and unlicensed practitioners and may revoke a license after a hearing or by consent or may refer complaints to the Attorney General for civil or criminal prosecution.
Anyone who believes that he or she is a victim of an untrustworthy or incompetent licensee of the Department of State, or who is aware of unlicensed conduct by a person or business engaging in the occupations or businesses regulated by the Department of State, may file a complaint with the Department of State. Complaint forms may be obtained by contacting the Department of State or may be accessed and printed from the Department of State’s website at www.dos.ny.gov.
Once a written complaint is received, it is reviewed to ensure that the complaint involves a matter under the jurisdiction of the Department of State and alleges unlawful or improper conduct.
Assuming the complaint is within the jurisdiction of the Department of State and alleges wrongful conduct, a copy of the complaint is mailed to the licensee and the licensee is asked for a response. Quite often, the licensee may not even be aware that a problem exists and once the problem is brought to his or her attention, it is resolved quickly and informally. For certain allegations, such as unlicensed activity, the Department will not generally share the complaint with the target, to allow for an effective investigation.
If the licensee fails to respond to the complaint or a resolution is not readily obtained, the complaint is assigned to a Department of State investigator to gather all relevant statements and documents from witnesses. After the investigation is completed, an assessment is made whether the matter may be resolved informally, dismissed for lack of merit or referred for further administrative action.
If the complaint is referred for further action, it may be addressed in several ways. If the alleged impropriety is relatively minor, it may be referred as a "ticket violation." Matters referred for ticket violation generally involve a violation of a Department of State statute or regulation which may be resolved by payment of a fine. If the complaint alleges serious violations of statutes or regulations and/or financial injury to a consumer, the complaint may be referred to the Department of State Litigation Unit for resolution. If the complaint alleges, and the investigation demonstrates, unlicensed business practices, the case may be referred to the Attorney General for civil or criminal prosecution.
THE HEARING AND DECISION
Once referred to the Litigation Unit, the complaint could be settled between the Department and licensee (respondent) through a written consent order. The consent order may provide for reprimand, suspension or revocation of a license, a fine and/or restitution to the consumer. If the case cannot be resolved by consent order, or involves very serious unlawful activity, a Department of State complaint is prepared against the licensee and the matter is scheduled for a hearing.
The hearing is presided over by an administrative law judge who is authorized to render whatever decision is dictated by the law and facts. The hearing could result in dismissal of the complaint, reprimand, suspension or revocation of a license, a fine and/or restitution to the injured party.
After a decision is rendered by the administrative law judge, either the Department of State or the licensee may appeal the decision directly to the Secretary of State. The appeal must be taken within 30 days of the date the decision is received by the party seeking to appeal.
On appeal, the Secretary of State will consider all evidence in the record and may either confirm the decision, make a written superseding decision, or remand the matter to the administrative law judge for further proceedings.
Once the Secretary of State has issued a decision on the appeal, the licensee may seek judicial review of the decision by means of a petition to the New York State Supreme Court under Article 78 of the New York State Civil Practice Law and Rules. It is important for licensees to exercise their right to an administrative appeal to the Secretary of State, prior to attempting to litigate the decision of the administrative law judge in a civil court. Failure to appeal to the Secretary of State will result in a dismissal of the civil court proceeding upon the basis that the licensee or applicant has failed to exhaust available administrative remedies.
Throughout the complaint resolution process, both licensees and complainants should feel free to contact the Department of State to determine the status of the complaint or to attempt informal resolution.
The information in this Memorandum should not be used in lieu of seeking appropriate legal advice. In addition, the information is subject to change based on future interpretations of the licensing law by the courts and/or for any relevant amendments. Private legal counsel should be consulted for legal advice related to this Memorandum.
Updated February 2020