Complainant, Respondent. A hearing on the above-captioned matter was held on April 4, 2013 and on October 9,

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1 CITY OF NEW YORK DEPARTMENT OF CONSUMER AFFAIRS DEPARTMENT OF CONSUMER AFFAIRS, DECISION AND ORDER Record No.: LL ADJC -against- Complainant, PERLA MAYORGA d/b/a PERMAY EMPLOYMENT AGENCY, Respondent. NOH No.: LL CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD License No.: (revoked) A hearing on the above-captioned matter was held on April 4, 2013 and on October 9, Appearances: For the Complainant: Eileen Yap, Esq., DCA Legal Services Division. Also present for the complainant on April 4, 2013 were consumers Marjorie Duncan and Evette Brumell. For the Respondent: Perla Mayorga and Michael Todd Mueller, Esq. Also present on April 4, 2013 were Gabriel Hisuyan (to observe only) and Language Line interpreter Z. Castillo (#9128). Also present on October 9, 2013 were Language Line interpreters A. Bayona (#6646), L. Vasquez (#10463) and E. Martinez (#12850). The respondent is charged with violating the following: 1) New York State General Business Law ( GBL ) Section 185(3) by failing to return advance and/or deposit fees collected from 1 An Interim Order was issued on October 10, 2013, holding the record open until November 6, 2013 for the submission of additional evidence and responses, which were received and considered in making this determination.

2 Page 2 of 20 consumers that the respondent failed to place into employment (11 counts); 2) GBL Section 186(3) by failing to return a portion of fees collected from consumers whose employment was terminated without fault of the consumer (3 counts); 3) GBL Section 186(4) by failing to return a portion of fees collected from a consumer whose employment was terminated (1 count); 4) GBL Section 185(1) by charging a registration fee (1 count); 5) GBL Section 187(4) by directing consumers to employers without having first obtained a bona fide job order (7 counts); 6) GBL Section 187(2) by publishing or causing to be published misleading advertisements (4 counts); 7) New York City Administrative Code ( Administrative Code ) Section by knowingly charging fees other than those permitted by GBL Section 185 (2 counts); 8) by promising to place consumers in jobs and then failing to place them (11 counts); 9) by promising to place a consumer in a permanent job and then placing the consumer in temporary positions (1 count). Based on the evidence in the record, I RECOMMEND the following: Findings of Fact At all times described herein, the respondent operated as an employment agency. 2 The respondent was licensed to operate as an employment agency until March 13, 2012, after its license application was denied. 3 2 An employment agency is any person... who, for a fee, procures or attempts to procure... employment or engagements for persons seeking employment or engagements. GBL Setion 171(2)(a)(1). 3 The Notice of Hearing states that the application for renewal was denied on February 13, However, Departmental records establish that the license was not placed into Inactive status until March 13, 2013.

3 Page 3 of 20 Evette Brumell (CD ) hired respondent on August 8, 2008 seeking job placement services after obtaining a flyer that stated, in part, LOOKING FOR HELP? FREE IMMEDIATE PLACEMENT AVAILABLE. The respondent charged her $435, which she paid. 4 The respondent referred Ms. Brumell to a job as a live-in companion and when she arrived for her interview, Ms. Brumell discovered someone else who was already working at the location. The respondent offered Ms. Brumell a location for one other position but would not confirm whether the position was still available. She demanded a refund of the fee and the respondent did not return the fee. In addition, the respondent gave Ms. Brumell a $400 check as a return of the fee but the check was rejected by her bank for insufficient funds and Ms. Brumell was charged a $10 bounced check fee. The respondent refunded Ms. Brumell $400 on or after April 12, 2013 by Postal money order and $35 on or after April 13, 2013 by attorney s check. Sidoney Rhule (CD ) hired respondent on January 24, 2009 seeking job placement services. The respondent charged him $535, which he paid. The respondent referred Mr. Rhule to prospective employers who either did not return calls or offered a salary below what the respondent had promised. The respondent did not offer further job prospects. The respondent refunded Mr. Rhule $535 on or after April 12, 2013 by Postal money order. Josephine Batise (CD ) hired respondent on July 6, 2009 seeking job placement services. The respondent charged her $335, which she paid. The respondent placed Ms. Batise in two jobs, one as a part-time housekeeper and one as a caretaker to an elderly person. Ms Batise was terminated after one day as a housekeeper and after four weeks as a caretaker because the employers no longer required her services. She earned a total of $510 from these jobs. The respondent would not offer further job prospects unless Ms. Batise paid an additional $400, which she refused to do. The respondent refunded Ms. Batise $284 on or after April 12, 2013 by Postal money order. Michael Hines (CD ) hired respondent on April 14, 2009 and/or April 23, 2009 seeking job placement services. The respondent charged him $195, which he paid. The respondent informed Mr. Hines of a job, to which he went for an interview and was told that there were no positions. The respondent never placed him in a job. The respondent refunded Mr. Hines $195 on or after April 12, 2013 by Postal money order. 4 The Notice of Hearing states that Ms. Brumell paid $400. However, the documentary evidence submitted by Ms. Brumell and the respondent establishes that she paid an additional $35. The Notice of Hearing is therefore amended to her paying $435, pursuant to Title 6 of the Rules of the City of New York Section 6-24(c).

4 Page 4 of 20 Marjorie Duncan (CD ) hired respondent on July 30, 2010 seeking job placement services. The respondent charged her $585, which she paid, as follows: $550 for job placement and a registration fee of $35. The respondent referred her for four positions, three of which did not hire her and one which told her there were no positions. The respondent never placed her in a job. The respondent refunded Ms. Duncan $585 on or after April 12, 2013 by Postal money order. Natalie Fullwood (CD ) hired respondent on October 13, 2010 seeking job placement services. The respondent charged her $485, which she paid, as follows: $450 for job placement and an application processing fee of $35. The respondent referred her to a job as a housekeeper, where she worked for three days and was paid a total of $225. The respondent did not place her in any other jobs. The respondent refunded Ms. Fullwood $485 on or after April 12, 2013 by Postal money order. Sonia Yorke (CD ) hired respondent on May 16, 2011 seeking job placement services after seeing advertisements in the Daily News newspaper, which stated, in part, jobs available and immediately hiring. The respondent charged her $195, which she paid. The respondent referred her to two potential employers, both of which informed her that they were not, in fact, hiring. The respondent never placed her in a job. The respondent refunded Ms. Yorke $195 on or after April 12, 2013 by Postal money order. Ann Marie Kelly (CD ) hired respondent on June 1, 2011 and/or June 3, 2011 seeking job placement services after seeing advertisements in the AM New York newspaper, which stated, in part, jobs available and immediately hiring. The respondent charged her $300, which she paid. The respondent referred her to two potential employers, both of which informed her that they were not, in fact, hiring. The respondent never placed her in a job. The respondent refunded Ms. Kelly $300 on or after April 12, 2013 by Postal money order. No evidence was introduced in support of the the claims regarding Shernette Bolton (CD ). Sitwantie Harnath (CD ) hired respondent on June 11, 2012 seeking job placement services. The respondent charged her $435, which she paid. The respondent referred her to one potential employer, which informed her that it was not, in fact, hiring. The respondent never placed her in a job. The respondent refunded Ms. Harnath $435 on or after April 12, 2013 by Postal money order.

5 Page 5 of 20 Simone Blair (CD ) hired respondent on October 16, 2012 seeking job placement services. The respondent charged her $195, which she paid. The respondent did not return her telephone calls and never placed her in a job. The respondent refunded Ms. Blair $195 on or after April 12, 2013 by Postal money order. Rosa Garcia (CD ) hired respondent on October 3, 2012 seeking job placement services. The respondent charged her $200, which he paid. The respondent referred Ms. Garcia to a prospective employer that offered a position she did not want. The respondent did not offer further job prospects. The respondent refunded Ms. Garcia $200 on or after April 12, 2013 by Postal money order. Kamal Mohamed (CD ) hired respondent on November 29, 2011 seeking job placement services. The respondent charged him $140, which he paid. The respondent never placed him in a job and did not return the fee or any portion thereof. Hany Mikhail (CD ) hired respondent on April 12, 2010 seeking job placement services. The respondent charged him $190, which he paid. The respondent never placed him in a job and did not return the fee or any portion thereof. Joseph Murray (CD ) hired respondent on January 30, 2013 seeking job placement services for a permanent job after seeing advertisements for the respondent in the Daily News newspaper. The respondent charged him $195, which he paid. The respondent referred him to six potential employers, two of which informed him that they were not, in fact, hiring and four of which told him were not hiring for permanent positions. He worked for two of the employers for one day each and earned a total of $125. The respondent never placed him in a permanent job and did not return the fee or any portion thereof. Opinion Consumer Evette Brumell (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Brumell never obtained employment through the respondent and did not receive a refund for almost five years after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon

6 Page 6 of 20 demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be GBL Section 187(4) The Department did not establish the charge by a preponderance of the credible evidence. An employment agency may not direct an applicant to an employer without the employer first having placed a bona fide job order, subject to two exceptions: an employment agency may send an applicant to an employer that did not place a job order where (i) the employer regularly conducts interviews with certain qualified applicants (and a confirmation order is sent to the employer); and (ii) the employment agency is attempting to sell the applicant s services to an employer, but only if, before being sent, the applicant is informed that no job order has been placed. Ms. Brumell explained that when she went to an interview for the first job, she was told that someone already worked for the employer. Ms. Brumell admitted that she did not confirm if the other person had been hired for her position and she left the job location without confirming whether the employer was still hiring. Ms. Mayorga explained, in detail and with consistency, that the existing employee was being terminated and Ms. Brumell was there to replace that employee. Ms. Brumell was then given another referral but she did not go for the interview and never confirmed whether the employer was hiring. 5 I find Ms. Mayora s evidence a more accurate description of the events. 6 The charge has not been established and, accordingly, it will be dismissed. GBL Section 187(2) An employment agency may not [p]ublish or cause to be published any false, fraudulent or misleading information, representation, promise, notice or advertisement. GBL Section 187(2). It is undisputed that Ms. Brumell responded to the subject flyer that advertised the respondent s services. It is also undisputed that respondent charged Ms. Brumell for its job placement services. Therefore the advertisement was false to the extent it offered free immediate placement (emphasis added). 7 The charge will be 5 Ms. Brumell claimed that she wanted the respondent to call this employer to confirm that the job was still available and that the respondent refused to do so. However, she admitted that she had the employer s phone number and there is no evidence that she called the employer or otherwise confirmed whether the employer was hiring. 6 Determinations concerning the credibility of witnesses, the weight of the evidence and the choice between conflicting testimony are the province of the Administrative Law Judge. See Matter of Kosich v. New York State Dept. of Health, 49 A.D.3d 980, 854 N.Y.S.2d 551 (3d Dep t 2008). 7 Employment agencies may not [p]ublish... false, fraudulent or misleading information[.] GBL Section 187(2).

7 Page 7 of 20 The Department charges respondent with committing a deceptive trade practice by promising to place Ms. Brumell in jobs and then failing to place them. However, Ms. Brumell did not establish that the two jobs to which she was referred had not placed bona fide job orders and she did not attend either of the interviews. On this evidence, it cannot be said that the respondent failed to obtain employment for her. Accordingly, the charge has not been established and it will be dismissed. Consumer Sidoney Rhule (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Rhule never obtained employment through the respondent and did not receive a refund for over four years after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be GBL Section 187(4) The Department established the charge by a preponderance of the credible evidence. An employment agency may not direct an applicant to an employer without the employer first having placed a bona fide job order, subject to two exceptions: an employment agency may send an applicant to an employer that did not place a job order where (i) the employer regularly conducts interviews with certain qualified applicants (and a confirmation order is sent to the employer); and (ii) the employment agency is attempting to sell the applicant s services to an employer, but only if, before being sent, the applicant is informed that no job order has been placed. In her statement, Ms. Rhule claims that she was given referrals for employers that did not return her calls or otherwise grant her the interviews the respondent had promised. Ms. Mayorga first claimed that the respondent did place Ms. Rhule in a job but then admitted that respondent only gave her referrals. I find that Ms. Rhule s evidence more accurately describes the relevant events and that the respondent has not established that all of Ms.

8 Page 8 of 20 Rhule s referrals were based upon bona fide job orders. 8 In addition, the respondent offered no evidence to show whether the employers to which Ms. Rhule was referred sought specific job qualifications or whether Ms. Rhule was informed that the employers had not placed job orders. The charge has not been rebutted and, accordingly, it will be It is undisputed that the respondent charged Ms. Rhule for employment agency services and failed to obtain her employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Josephine Batise (CD ) GBL Section 186(3) GBL Section 186(3) obligates employment agencies to return ninetypercent (90%) of employment agency fees paid by applicants such as Ms. Batise, who have accepted employment and reported for work and are thereafter terminated without their fault. In addition, an employment agency must refund [a]ny excess above the lawful fee... without demand therefor, immediately after the employment agency has been notified that such employment has been obtained[.]. It is undisputed that Ms. Batise paid respondent a fee of $335 and that she was placed in two temporary jobs for which she was paid a total of $510. She was not refunded $284 ($335 minus $51, which represents 10% of her total earnings) for almost four years after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to refund excess fees immediately after becoming aware of Ms. Batise s employment status and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be Consumer Michael Hines (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not 8 Determinations concerning the credibility of witnesses, the weight of the evidence and the choice between conflicting testimony are the province of the Administrative Law Judge. See Matter of Kosich v. New York State Dept. of Health, 49 A.D.3d 980, 854 N.Y.S.2d 551 (3d Dep t 2008).

9 Page 9 of 20 obtained. Mr. Hines never obtained employment through the respondent and did not receive a refund until four years after he demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be It is undisputed that the respondent charged Mr. Hines for employment agency services and failed to obtain him employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Marjorie Duncan (CD ) The Department established the violation be a preponderance of the credible evidence. obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Duncan never obtained employment through the respondent and did not receive a refund for over two years after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be GBL Section 185(1) No fee shall be charged or accepted for the registration of applicants for employees or employment. GBL Section 185(1). Ms. Duncan explained, in detail and with consistency, that she was charged a $35 registration fee before the respondent would refer her to any employers. Ms. Mayorga did not dispute this evidence. The charge has been established and, accordingly, it will be GBL Section 187(4) The Department did not establish the charge by a preponderance of the credible evidence. An employment agency may not direct an applicant to an employer without the employer first having placed a bona fide job order, subject to two exceptions: an employment agency may send an applicant to an employer that did not place a job order where (i) the employer regularly conducts interviews with certain qualified applicants (and a confirmation order

10 Page 10 of 20 is sent to the employer); and (ii) the employment agency is attempting to sell the applicant s services to an employer, but only if, before being sent, the applicant is informed that no job order has been placed. Ms. Duncan explained that she was surprised to learn that the first referral she was given was for an interview only because the respondent had led her to believe it was a guaranteed position. However, this is not evidence that a job order was not placed with the respondent. In fact, sitting for an interview is clear evidence that the employer had, in fact, placed a bona fide job order with the respondent. She also described being sent to interviews for other positions that she decided she did not want. No charge was made, and no evidence was submitted to establish, that she was sent to anyone who had not placed a job order. The charge has not been established and, accordingly, it will be dismissed. It is undisputed that the respondent charged Ms. Duncan for employment agency services and failed to obtain her employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Natalie Fullwood (CD ) GBL Setion 186(3) GBL Section 186(3) obligates employment agencies to return ninetypercent (90%) of employment agency fees paid by applicants such as Ms. Fullwood, who have accepted employment and reported for work and are thereafter terminated without their fault. In addition, an employment agency must refund [a]ny excess above the lawful fee... without demand therefor, immediately after the employment agency has been notified that such employment has been obtained[.]. It is undisputed that Ms. Fullwood paid respondent fees of $485 and that she was placed in a three-day job for which she was paid a total of $225. She was not refunded $ ($485 minus $22.50, which represents 10% of her total earnings) for two-and-a-half years after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to refund excess fees immediately after becoming aware of Ms. Fullwood s employment status and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be

11 Page 11 of 20 It is undisputed that the respondent charged Ms. Fullwood a registration fee. An employment agency may not charge an applicant a registration fee. GBL Section 185(1). It is determined that charging an illegal registration fee constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Sonia Yorke (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Yorke never obtained employment through the respondent and did not receive a refund for almost two years after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be GBL Section 187(4) The Department established the charge by a preponderance of the credible evidence. An employment agency may not direct an applicant to an employer without the employer first having placed a bona fide job order, subject to two exceptions: an employment agency may send an applicant to an employer that did not place a job order where (i) the employer regularly conducts interviews with certain qualified applicants (and a confirmation order is sent to the employer); and (ii) the employment agency is attempting to sell the applicant s services to an employer, but only if, before being sent, the applicant is informed that no job order has been placed. In her affidavit, Ms. Yorke describes being sent to interviews for two positions and that when she arrived at each, she was told by the employers that they were not hiring. There is no evidence that the employers to which Ms. Yorke was referred sought specific job qualifications or whether she was informed that the employers had not placed job orders. 9 Ms. Mayorga did not dispute Ms. Yorke s evidence. Her argument, that Ms. Yorke did not want to work, does not contest the Department s evidence that Ms. Yorke was sent to interviews with persons who were not hiring and thus does not constitute a 9 In addition, her recollection that she was being sent to interviews for positions strongly suggests that she was under the impression that these were positions related to bona fide jobs orders.

12 Page 12 of 20 meritorious defense. The charge has not been rebutted and, accordingly, it will be GBL Section 187(2) An employment agency may not [p]ublish or cause to be published any false, fraudulent or misleading information, representation, promise, notice or advertisement. GBL Section 187(2). It is undisputed that Ms. Yorke responded to the respondent s newspaper advertisements. She was referred to two employers, both of whom told her they were not hiring. 10 The advertisements proclaiming jobs available and immediately hiring were thus false. 11 The charge will be It is undisputed that the respondent charged Ms. Yorke for employment agency services and failed to obtain her employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Ann Marie Kelly (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Kelly never obtained employment through the respondent and did not receive a refund for almost two years after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be GBL Section 187(4) The Department established the charge by a preponderance of the credible evidence. An employment agency may not direct an applicant to an employer without the employer first having placed a bona fide job order, 10 To the extent Ms. Mayorga argued that an employee told her that Ms. Yorke did not want to work, I find Ms. Yorke s sworn affidavit a more accurate description of events than the hearsay testimony offered by Ms. Mayorga. See Matter of Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222 (1974), supra. 11 Employment agencies may not [p]ublish... false, fraudulent or misleading information[.] GBL Section 187(2).

13 Page 13 of 20 subject to two exceptions: an employment agency may send an applicant to an employer that did not place a job order where (i) the employer regularly conducts interviews with certain qualified applicants (and a confirmation order is sent to the employer); and (ii) the employment agency is attempting to sell the applicant s services to an employer, but only if, before being sent, the applicant is informed that no job order has been placed. In her affidavit, Ms. Kelly describes being sent to interviews with person who was not, in fact, hiring. There is no evidence that the employers to which she was referred sought specific job qualifications or whether she was informed that the employers had not placed job orders. Ms. Mayorga s argument, that Ms. Kelly wanted a job as a nurse but had not submitted paperwork to prove she was a nurse, does not constitute a meritorious defense. It is undisputed that the jobs Ms. Kelly was referred to were not hiring. The charge has not been rebutted and, accordingly, it will be GBL Section 187(2) An employment agency may not [p]ublish or cause to be published any false, fraudulent or misleading information, representation, promise, notice or advertisement. GBL Section 187(2). It is undisputed that Ms. Kelly responded to the respondent s newspaper advertisements. She did not obtain the employment she was promised, even after being sent to two employers, both of whom told her they were not, in fact, hiring. 12 The advertisements proclaiming jobs available and immediately hiring were thus false. 13 The charge will be It is undisputed that the respondent charged Ms. Kelly for employment agency services and failed to obtain her employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Shernette Bolton (CD ) GBL Section 186(4) 12 Ms. Mayorga s uncorroborated claims, that Ms. Kelly is a liar and that she did not have her nurse papers do not disprove Ms. Kelly s evidence that the respondent failed to send her to an employer that was actually hiring (as promised in the advertisements) and thus do not constitute meritorious defenses. 13 Employment agencies may not [p]ublish... false, fraudulent or misleading information[.] GBL Section 187(2).

14 Page 14 of 20 The Department offered no evidence in support of this charge. It has not been established and will be dismissed. The Department offered no evidence in support of this charge. It has not been established and will be dismissed. Consumer Sitwantie Harnath (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Harnath never obtained employment through the respondent and did not receive a refund for almost a year after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be GBL Section 187(4) The Department established the charge by a preponderance of the credible evidence. An employment agency may not direct an applicant to an employer without the employer first having placed a bona fide job order, subject to two exceptions: an employment agency may send an applicant to an employer that did not place a job order where (i) the employer regularly conducts interviews with certain qualified applicants (and a confirmation order is sent to the employer); and (ii) the employment agency is attempting to sell the applicant s services to an employer, but only if, before being sent, the applicant is informed that no job order has been placed. In her statement, Ms. Harnath describes being sent to an interview for an employer that was not, in fact, hiring. There is no evidence that the employer sought specific job qualifications or whether she was informed that the employer had not placed a job order. Ms. Mayorga did not dispute Ms. Yorke s evidence. Her argument, that Ms. Yorke did not want to work is irrelevant to whether the employer had place a job order and thus does not constitute a meritorious defense. The charge has not been rebutted and, accordingly, it will be

15 Page 15 of 20 It is undisputed that the respondent charged Ms. Harnath for employment agency services and failed to obtain her employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Simone Blair (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Blair never obtained employment through the respondent and did not receive a refund for six months after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be It is undisputed that the respondent charged Ms. Blair for employment agency services and failed to obtain her employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Rosa Garcia (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Ms. Garcia never obtained employment through the respondent and did not receive a refund for six months after she demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be It is undisputed that the respondent charged Ms. Garcia for employment agency services and failed to obtain her employment. It is determined that this

16 Page 16 of 20 constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Kamal Mohamed (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Mr. Mohamed never obtained employment through the respondent and did not receive a refund for more than a year after he demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be It is undisputed that the respondent charged Mr. Mohamed for employment agency services and failed to obtain him employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be Consumer Hany Mikhail (CD ) obligates employment agencies to return any fees allowed to an applicant-consumer upon demand if employment is not obtained. Mr. Mikhail never obtained employment through the respondent and did not receive a refund for three years after he demanded it. Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to make refunds upon demand and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be It is undisputed that the respondent charged Mr. Mikhail for employment agency services and failed to obtain him employment. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be

17 Page 17 of 20 Consumer Joseph Murray (CD ) GBL Section 186(3) GBL Section 186(3) obligates employment agencies to return ninetypercent (90%) of employment agency fees paid by applicants such as Mr. Murray, who have accepted employment and reported for work and are thereafter terminated without their fault. In addition, an employment agency must refund [a]ny excess above the lawful fee... without demand therefor, immediately after the employment agency has been notified that such employment has been obtained[.]. It is undisputed that Mr. Murray paid respondent a fee of $195 and that he was placed in two temporary jobs for which he was paid a total of $125. He was never refunded $ ($195 minus $12.50, which represents 10% of his total earnings). Ms. Mayorga s argument, that she did not have the money to refund fees at the time, does not relieve respondent of its responsibility to refund excess fees immediately after becoming aware of Mr. Murray s employment status and thus does not constitute a meritorious defense. The charge has been established and, accordingly, it will be GBL Section 187(4) The Department established the charge by a preponderance of the credible evidence. An employment agency may not direct an applicant to an employer without the employer first having placed a bona fide job order, subject to two exceptions: an employment agency may send an applicant to an employer that did not place a job order where (i) the employer regularly conducts interviews with certain qualified applicants (and a confirmation order is sent to the employer); and (ii) the employment agency is attempting to sell the applicant s services to an employer, but only if, before being sent, the applicant is informed that no job order has been placed. In his affidavit, Mr. Murray explains that two of the six employers to which he was referred were not, in fact, hiring. There is no evidence that these two employers sought specific job qualifications or whether he was informed that they had not placed job orders. Ms. Mayorga did not dispute Mr. Murray s evidence. Her arguments, that Mr. Murray is a liar and robbed people, are irrelevant to whether these employers had placed job orders and thus do not constitute meritorious defenses. The charge has not been rebutted and, accordingly, it will be

18 Page 18 of 20 GBL Section 187(2) The Department did not establish the charge by a preponderance of the credible evidence. An employment agency may not [p]ublish or cause to be published any false, fraudulent or misleading information, representation, promise, notice or advertisement. GBL Section 187(2). Mr. Murray s affidavit states that he responded to the respondent s newspaper advertisements but it does not describe what the advertisements specifically promised. He claims that he sought permanent employment and was referred only to employers looking for temporary employees. There is no evidence that the advertisements he responded to offered permanent employment. On this evidence, the charge has not been established and, accordingly, it will be dismissed. It is undisputed that the respondent charged Mr. Murray for job placement in a permanent position and that the respondent only referred him to employers that were hiring for temporary positions. It is determined that this constitutes a deceptive trade practice and, accordingly, the charge will be ORDER Respondent Perla Mayorga d/b/a Permay Employment Agency is found not guilty with respect to the following counts set forth in the Notice of Hearing: Charge 3, with respect to CD ; Charge 5, with respect to CD and CD ; Charge 6 with respect to CD ; and Charge 8 with respect to CD and CD , and such charges are hereby dismissed. Respondent Perla Mayorga d/b/a Permay Employment Agency is found guilty with respect to the following charges set forth in the Notice of Hearing and is hereby ordered to pay to the Department a TOTAL FINE of $17,200, which is immediately due and owing, as follows: Charge 1: $5,500 ($500 per count for 11 counts) Charge 2: $1,500 ($500 per count for 3 counts) Charge 4: $ 500 ($500 per count for 1 count) Charge 5: $2,500 ($500 per count for 5 counts) Charge 6: $1,500 ($500 per count for 3 counts) Charge 7: $ 700 ($350 per count for 2 counts)

19 Page 19 of 20 Charge 8: $4,500 ($500 per count for 9 counts) Charge 9: $ 500 ($500 per count for 1 count) The respondent is further ordered to pay TOTAL RESTITUTION in the amount of $512.50, to be distributed to the consumers as follows: to consumer Kamal Mohamed, the amount of $140; to consumer Hany Mikhail, the amount of $190; to consumer Joseph Murray, the amount of $ The respondent must provide to the Department proof of payment of the restitution to each of the above consumer within thirty (30) days of the date of this decision, to the following address: NYC Department of Consumer Affairs, Collections Division - Accounts Receivable, 42 Broadway, 9 th Floor, New York, NY or by ing such proof to: collections@dca.nyc.gov. It is further declared that the respondent is deemed unfit to hold any licenses issued by the Department of Consumer Affairs. 15 This constitutes the recommendation of the Administrative Law Judge. Richard J. Zeitler, Jr. Principal Administrative Law Judge 14 Mr. Murray paid respondent a fee of $195 and was placed in two temporary jobs for which he was paid a total of $125. The respondent was thus entitled to a fee of ten-percent (10%) of his earnings, or $ See GBL Section 186(3). He was never refunded $ ($195 minus $12.50). 15 Respondent argues in its post-hearing brief that it is wholly unfair and prejudicial to consider the Affidavit of the Department s employee, Elba Irizarry, as well as the New York State Attorney General s office complaint and resulting Consent Decree entered into as evidence of the respondent s propensity to violate employment agency laws. However, the respondent has proven herself unfit through the very actions for which she is found guilty in this Notice of Hearing. See, e.g., DCA v. Global Multiservices, LLC et al., PL and LL (Decision, ALJ S. Kassapian, October 15, 2009) (employment agency deemed unfit to hold any licenses issued by the Department upon determining multiple General Business Law violations).

20 Page 20 of 20 DECISION AND ORDER The recommendation of the Administrative Law Judge is approved. This constitutes the Decision and Order of the Department. Failure to comply with this order within (30) days shall result in the suspension of the license at issue, and may result in the suspension of any other Department of Consumer Affairs license(s) held by the respondent. Date: December 26, 2013 Steven T. Kelly Deputy Director of Adjudication cc: Michael Todd Mueller, Esq. Eileen Yap, Esq. DCA Legal Division APPEAL INFORMATION You have 30 days to file an APPEAL of this decision. You must include with your appeal all of the following: (1) a check or money order payable to DCA for the sum of $25; and (2) a check or money order payable to DCA for the amount of the fine imposed by the decision, or an application for a waiver of the requirement to pay the fine as a requisite for an appeal, based upon financial hardship. The application must be supported by evidence of financial hardship, including the most recent tax returns you have filed. BY Send your appeal to myappeal@dca.nyc.gov and, at the same time, mail the $25 appeal fee to: DCA Administrative Tribunal, 66 John Street, 11 th Floor, New York, NY (Make sure to write the violation number(s) on your check or money order.) You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY BY REGULAR MAIL: Mail your appeal and the $25 appeal fee to: Director of Adjudication, Department of Consumer Affairs, 66 John Street, 11 th Floor, New York, NY You must also mail a copy of your appeal to: DCA, Legal Division, 42 Broadway, 9 th Floor, New York, NY Make sure to include in your appeal some indication or proof that you have sent a copy of the appeal to DCA s Legal Division. You may pay the fine online at or mail a check or money order to: DCA, Collections Division, 42 Broadway, NY, NY Mail payment in the enclosed envelope addressed to: NYC Department of Consumer Affairs Collections Division 42 Broadway, 9 th Floor New York, NY 10004