PL Inquest Auth Primary

PL 1028052

Dept. of Consumer Affairs v. Judith Delong and Sharon Backos d/b/a FACES

CITY OF NEW YORK

DEPARTMENT OF CONSUMER AFFAIRS

DECISION AND ORDER

A hearing on the above-captioned matter was held on August 9, 2004.[1]

Appearances: For the Department: Mark Davis, Esq., Community Inspector John P. Kain and Intern Timothy Ballinger. For the Respondent Judith Delong: Mel Sachs, Esq. and Judith Delong. Sharon Backos did not appear.

The Notice of Hearing charged the respondents with violating NY State General Business Law Article 11 Section 172 by engaging in unlicensed Employment Agency activity.

Based on the evidence in this case, I FIND the following:

FINDINGS OF FACT:

As to Respondent Sharon Backos:

A hearing was scheduled for August 9, 2004. There was an appearance on behalf of the Department. However, although duly notified of the time and place of the hearing, the respondent failed to appear. Accordingly, no testimony or other evidence was taken as to respondent Sharon Backos.

As to Respondent Judith Delong:

The respondent had registered the business as “Faces Models and Actors” located at 555 8th Avenue, New York, New York via a business certificate filed with the New York County Clerks Office on April 6, 2004.

On June 4, 2004, the respondent started running a series of advertisements in the New York Post Classifieds. The ads were located in the MODELS/TALENT WANTED section of the classifieds and initial ad copy read “Models Earn $2000/Day All Ages & Sizes. Many Jobs. No Fee 212-201-1382, 248 W. 35th, 12th FL. The ads continued to appear in the Post Classifieds In the same section through July 17, 2004. All of the ads appear in the MODELS/TALENT WANTED section of the Classified Ads.

On June 7, 2004, Investigator Jean Kain went to the respondent’s location to appear at an appointment that had been set by a prior telephone call on June 6, 2004. Mr. Kain spoke to an individual who identified herself as “Gia” but who was actually Judith Delong.

On July 29, 2004, Intern Timothy Ballenger went to the respondent’s location to appear at an appointment that had been set by a prior phone call. Mr. Ballenger spoke to Judith Delong.

Ms. Delong told both Mr. Kain and Mr. Ballenger that they would have to pay a $ 300 fee in order to have photographs taken. Mr. Kain was informed that the photographs were the “first step”. Mr. Ballenger was told that he would “…need professional photo shoot to work with us…”. Both were informed that they would start work as soon as the photos were taken.

The respondent did not cease operation and is still operating the unlicensed business as of the date of the hearing.

Opinion

The credible evidence establishes that the respondent was engaged in unlicensed activity from June 7, 2004 through August 9, 2004.

Mr. Sachs argues that the respondent’s business consists of simply arranging for and providing photographs to aspiring models and actors. The fees requested were identified as being for the purpose of having photos taken and it is further argued that at no time did the respondent represent itself as an employment agency or promise an applicant or potential applicant specific employment.

General Business Law Article 11 Section 171.2c defines Employment Agency as “shall include any person who, for a fee, renders vocational guidance or counseling services and who directly or indirectly: … (3) provides information or service of any kind purporting to promote, lead to or result in employment for the applicant with any employer other than himself.” (emphasis added).

The respondent does not dispute that it was running classified ads in the Models/Talent Wanted section of the New York Post for over a month. The wording of the ads do not use the words photograph, photographer, picture, photo, head shot, portrait or any other language that would remotely suggest that the respondent was in the business of solely arranging for and providing photographs.

Based upon a preponderance of the credible evidence, including the transcripts and actual recordings of the meetings, the newspaper advertisements and the answer to subpoenas by Verizon and the New York Post, I find that the evidence rebuts the respondent’s argument and further find that the respondent was operating an employment agency without a license.

DECISION AND ORDER

Respondent Sharon Backos is found guilty, upon default, of violating NY State General Business Law Article 11 Section 172, by engaging in unlicensed activity from June 7, 2004, the date of inspection through August 9, 2004, the actual hearing date.

The respondent Judith Delong is found guilty of engaging in unlicensed activity from June 7, 2004, the date of the initial contact with the inspector, to August 9, 2004, the actual hearing date.

The respondents are Ordered to pay to the Department a TOTAL FINE of $ 6,400 as follows: $ 100 per day of unlicensed activity, for 64 days.

It is further Ordered, that the above respondent shall immediately discontinue its unlicensed activity at the above-referenced premises, and

It is further Ordered, that the above premises used primarily for the operation of the illegal, unlicensed activity shall be SEALED if such illegal activity is not discontinued within 10 days of the posting of this Order; and

It is further Ordered, that any devices, items or goods sold, offered for sale, or available for public use or utilized in the operation of a business and relating to such illegal activity shall be removed, sealed or otherwise made inoperable if such illegal activity is not discontinued within 10 days of the posting of this Order. Any perishable goods or food products seized by the Department pursuant to the within Order which cannot be retained without them becoming unwholesome, putrid, decomposed or unfit in any way will be disposed of pursuant to the provisions of Section 17-323 of the New York City Administrative Code.

This constitutes the Decision and Order of the Department.

If the respondent has obtained a license, its failure to comply with this order within 30 days shall result in the suspension of that license.

______

Kirk M. Miller

Administrative Law Judge

cc:Mark Davis, Esq.

Mel Sachs, Esq.

PLEASE TAKE NOTICE that, if your are found guilty of, or plead guilty to, such unlicensed activity in the future, there shall be a presumption of continuous unlicensed activity from the date of this decision to the date of the subsequent hearingor settlement agreement.

If you wish to APPEAL this decision, or file a MOTION FOR REHEARING, you must file your appeal or motion with the Director of Adjudication, Department of Consumer Affairs, 66 John Street, New York, NY 10038, within 30 daysof the date of this decision. You must include with your appeal or motion a check or money order for the sum of $25 payable to the Department of Consumer Affairs. In addition, the respondent must serve a copy of its appeal or motion for rehearing, and any other related documents, on the Legal Division of the Department of Consumer Affairs, 42 Broadway, 9th Floor, New York, NY 10004.

N.Y.C. DEPARTMENT OF CONSUMER AFFAIRS – 66 JOHN STREET - NEW YORK, NEW YORK 10038 - (212) 361- 7700

[1] The original hearing date was June 23, 2004, originally adjourned to July 29, 2004 and then reset for August 9, 2004. All adjournments were at the respondent’s request.