NY State Senate Bill 2015-S5748

Senate Bill S5748

2015-2016 Legislative Session

Relates to authorizing the secretary of state to order the cessation of unlicensed appearance enhancement activity and to register trainees in the practice of nail specialty

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2016	referred to consumer protection
Jun 02, 2015	referred to consumer protection

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2015-S5748 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Amd Gen Bus L, generally

2015-S5748 (ACTIVE) - Summary

Relates to authorizing the secretary of state to order the cessation of unlicensed appearance enhancement activity and to register trainees in the practice of nail specialty.

2015-S5748 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5748

TITLE OF BILL:

An act to amend the general business law to authorize the secretary of
state to order the cessation of unlicensed appearance enhancement
activity and to register trainees in the practice of nail specialty

PURPOSE:

This bill would amend Article 27 of the General Business Law to
authorize the Secretary of State ("Secretary") to order the cessation
of unlicensed appearance enhancement activity. This bill would also
authorize the Department. of State to register trainees in the
practice of nail specialty.

SUMMARY OF PROVISIONS:

Section one of the bill would amend section 400 of the General
Business Law to set forth a definition of "trainee" as someone who is
in good faith pursuing a course of study in the practice of nail
specialty under the tutelage and supervision of a licensee.

Section two of the bill would amend subdivision 1 of section 401 of
the General Business Law to assure that no person can act as a trainee
or perform a service without having first registered with the

Department.

Section three of the bill would amend section 404 of the General
Business Law to provide the Secretary explicit statutory authority to
promulgate rules and regulations to protect the health, safety and
welfare of appearance enhancement practitioners.

Section four of the bill would amend section 404-b of the General
Business Law to require appearance enhancement businesses to provide
gloves and masks to nail salon employees.

Section five of the bill would amend subdivision 2 of section 405 of
the General Business Law to authorize the Secretary to require a bond
and liability insurance.

Section six of the bill would amend subdivision 1 of section 406 of
the General Business Law to allow the granting of a license to
practice nail specialty to a trainee after he or she has been actively
engaged in an apprenticeship for a period of one year, taken a course
of study set forth by the Secretary and passed an examination. All
other educational requirements of the statute would be waived.

Section seven of the bill would add a new section 408-a of the General
Business Law to set forth requirements and restrictions related to
trainees.

Section eight of the bill would amend section 409 of the General
Business Law to add an application fee of $20 for registration of a
trainee.


Section nine of the bill would amend subdivision 1 of section 410 of
the General Business Law to make conforming changes related to
disciplinary actions taken by the Secretary with regard to trainees.

Section ten of the bill would amend subdivision 2 of section 410 of
the General Business Law to authorize the Secretary to issue immediate
orders directing cessation of unlicensed activity.

Section 11 of the bill would amend subdivisions 1 and 2 of section 411
of the General Business Law to make conforming changes related to
denial of an application for trainee registration.

Section 12 of the bill would amend section 412 of the General Business
Law to set forth an alternate civil penalty scheme for unlicensed
operation of an appearance enhancement business.

Section 13 of the bill would establish an immediate effective date.

JUSTIFICATION:

Many nail salon employees endure unsafe working conditions and unfair
labor practices. Inadequate ventilation, lack of personal protective
equipment, non-payment of wages, nonexistent worker's compensation
coverage, missing business liability insurance, and the unlicensed
operation of facilities jeopardize the health and safety of employees
and patrons alike.

The situation demands immediate action; however, existing statutes
impede the State's ability to act swiftly in order to protect the
public and provide employee justice.

This bill would provide the Secretary of State the necessary tools to
take immediate action-to order the cessation of unlicensed or
uninsured business activities and to impose meaningful fines on
intentional bad actors. It would also provide a critical new path to
employment through an apprenticeship trainee program in lieu of often
prohibitively high cost education programs.

PRIOR LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

Revenue derived from increased statutory compliance would offset any
costs associated with this bill.

EFFECTIVE DATE:

This act shall take effect immediately.

2015-S5748 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5748

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              June 2, 2015
                               ___________

Introduced  by  Sen. HOYLMAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law to authorize the  secretary  of
  state  to  order  the  cessation  of unlicensed appearance enhancement
  activity and to register trainees in the practice of nail specialty

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  400  of  the  general business law is amended by
adding a new subdivision 11 to read as follows:
  11. "TRAINEE" MEANS A PERSON PURSUING IN GOOD FAITH A COURSE OF  STUDY
IN  THE  PRACTICE  OF NAIL SPECIALTY UNDER THE TUTELAGE, SUPERVISION AND
DIRECTION OF A LICENSED NAIL PRACTITIONER AND WHO ASSISTS  SUCH  PRACTI-
TIONER IN SUCH PRACTICE.
  S  2.  Subdivision  1  of  section 401 of the general business law, as
amended by chapter 341 of the laws  of  1998,  is  amended  to  read  as
follows:
  1.  No  person shall engage in the practice of nail specialty, waxing,
natural hair styling, esthetics or cosmetology, as  defined  in  section
four  hundred  of  this  article,  without  having received a license to
engage in such practice in the manner prescribed in this  article.    NO
PERSON  SHALL  ACT AS A TRAINEE OR PERFORM ANY SERVICE AS SUCH UNLESS HE
OR SHE HAS OBTAINED A CERTIFICATE OF REGISTRATION PURSUANT TO THIS ARTI-
CLE.
  S 3. Section 404 of the general business law, as  amended  by  chapter
341 of the laws of 1998, is amended to read as follows:
  S 404. Rules and regulations. The secretary shall promulgate rules and
regulations  which  establish  standards  for  practice and operation by
licensees AND TRAINEES under this article in order to ensure the health,
safety and welfare of the public  AS  WELL  AS  LICENSEES  AND  TRAINEES
OFFERING SERVICES.  Such rules and regulations shall include, but not be
limited  to, the sanitary conditions and procedures required to be main-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12013-01-5

S. 5748                             2

tained, a minimum standard of training appropriate to the duties of nail
specialists, TRAINEES, waxers, natural hair stylists, estheticians,  and
cosmetologists  and the provision of service by nail specialists, TRAIN-
EES,  waxers,  natural  hair stylists, estheticians or cosmetologists at
remote locations other than the licensee's home provided that such prac-
titioner holds an appearance enhancement business license to operate  at
a  fixed location or is employed by the holder of an appearance enhance-
ment  business  license.  Regulations  setting  forth  the   educational
requirements  for  nail specialists AND TRAINEES shall include education
in the area of causes of infection  and  bacteriology.  In  promulgating
such  rules  and  regulations the secretary shall consult with the state
education department, the advisory  committee  established  pursuant  to
this  article,  any  other state agencies and private industry represen-
tatives as may be appropriate in determining minimum  training  require-
ments.
  S  4.  Section  404-b of the general business law, as added by chapter
489 of the laws of 2010, is amended to read as follows:
  S 404-b. Nail specialty; owner responsibilities. In  addition  to  any
rules  and  regulations  establishing  standards for practices and oper-
ations by licensees under this article, in order to ensure  the  health,
safety  and welfare within appearance enhancement businesses, all owners
and operators of appearance enhancement businesses which  practice  nail
specialty shall make available[, upon request] FOR USE, gloves and face-
masks  for nail speciality licensees AND TRAINEES who work in such busi-
nesses. [No owner or operator of  any  appearance  enhancement  business
that  engages  in  the  practice  of  nail speciality shall prohibit any
licensee practicing nail specialty from wearing a mask or  gloves  while
engaged in the practice of nail specialty at such business.]
  S  5.  Subdivision  2  of  section 405 of the general business law, as
added by chapter 509 of the laws of 1992, is amended to read as follows:
  2. An appearance enhancement business licensee shall file and maintain
during the term of the license evidence of a bond [or], liability insur-
ance OR A COMBINATION THEREOF, AS REQUIRED BY THE SECRETARY.
  S 6. Subdivision 1 of section 406  of  the  general  business  law  is
amended by adding a new paragraph f to read as follows:
  F.  NOTWITHSTANDING  THE  EDUCATIONAL  REQUIREMENTS OF THIS SECTION, A
TRAINEE MAY OBTAIN A LICENSE TO PRACTICE NAIL SPECIALTY IF SUCH  TRAINEE
PROVIDES  SATISFACTORY  EVIDENCE  TO THE SECRETARY THAT SUCH TRAINEE HAS
BEEN ACTIVELY ENGAGED IN A TRAINEESHIP FOR A PERIOD OF ONE YEAR AND  HAS
COMPLETED  A  COURSE OF STUDY SET FORTH BY THE SECRETARY. SUCH COURSE OF
STUDY MAY BE DELIVERED BY ELECTRONIC MEANS.
  S 7. The general business law is amended by adding a new section 408-a
to read as follows:
  S 408-A. TRAINEE. 1. EACH APPLICANT FOR A CERTIFICATE OF  REGISTRATION
AS  A  TRAINEE  SHALL MAKE AN APPLICATION WHICH SHALL INCLUDE THE PHYSI-
CIAN'S CERTIFICATE REQUIRED BY PARAGRAPH E OF SUBDIVISION ONE OF SECTION
FOUR HUNDRED SIX OF THIS ARTICLE, TWO RECENT PHOTOGRAPHS, AND SUCH OTHER
INFORMATION REQUIRED BY SUCH SECTION AND IN SUCH FORM AS  THE  SECRETARY
MAY PRESCRIBE.
  2. A CERTIFICATE OF REGISTRATION AS A TRAINEE SHALL BE FOR A PERIOD OF
ONE YEAR AND MAY BE RENEWED ONCE.
  3. EACH CERTIFICATE OF REGISTRATION ISSUED AS PROVIDED IN THIS SECTION
SHALL  BE  POSTED  IN  A CONSPICUOUS PLACE IN THE APPEARANCE ENHANCEMENT
BUSINESS IN WHICH THE TRAINEE IS ACTUALLY ENGAGED  IN  THE  PRACTICE  OF
NAIL SPECIALTY AS A TRAINEE.

S. 5748                             3

  4.  THE HOLDER OF A CERTIFICATE OF REGISTRATION AS A TRAINEE SHALL NOT
BE ENTITLED TO AN APPEARANCE ENHANCEMENT BUSINESS LICENSE.
  S 8. Subdivisions 3, 4, 5, 6 and 7 of section 409 of the general busi-
ness  law are renumbered subdivisions 4, 5, 6, 7 and 8, and a new subdi-
vision 3 is added to read as follows:
  3. THE FEE FOR THE REGISTRATION OR THE RENEWAL OF THE REGISTRATION  OF
A TRAINEE SHALL BE TWENTY DOLLARS.
  S  9.  Subdivision  1  of  section 410 of the general business law, as
added by chapter 509 of the laws of the 1992,  is  amended  to  read  as
follows:
  1.  Suspension  and  revocation  of  licenses OR REGISTRATIONS; fines;
reprimands. A license OR REGISTRATION issued pursuant  to  this  article
may  be  suspended  or  revoked,  or  a  fine not exceeding five hundred
dollars payable to the department may be imposed for any one or more  of
the following causes:
  a.  Fraud  or bribery in securing a license OR REGISTRATION or permis-
sion to take an examination therefor.
  b. The making of any false statement as to a material  matter  in  any
application or other statement or certificate required by or pursuant to
this article.
  c. Incompetence or untrustworthiness.
  d.  Failure to display the license OR REGISTRATION as provided in this
article.
  e. Violation of any provision of this article, or of any rule or regu-
lation adopted hereunder.
  f. Conviction of any of the following crimes subsequent to  the  issu-
ance  of a license pursuant to this article:  fraud pursuant to sections
170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and  190.65;  falsifying
business  records  pursuant to section 175.10; grand larceny pursuant to
article 155;  bribery  pursuant  to  sections  180.03,  180.08,  180.15,
180.25,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
sections 120.05, 120.10, 120.11, 120.12;  robbery  pursuant  to  article
160;  homicide  pursuant  to  sections  125.25  and 125.27; manslaughter
pursuant to sections 125.15 and 125.20; kidnapping and  unlawful  impri-
sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
possession  pursuant to sections 265.02, 265.03 and 265.04; criminal use
of a weapon pursuant to sections 265.08 and 265.09; criminal sale  of  a
weapon pursuant to sections 265.11 and 265.12; and sex offenses pursuant
to  article  130  of  the  penal  law.  Provided,  however, that for the
purposes of this article, none of  the  following  shall  be  considered
criminal  convictions or reported as such: (i) a conviction for which an
executive pardon has been issued pursuant to the executive law;  (ii)  a
conviction  which  has  been vacated and replaced by a youthful offender
finding pursuant to article seven hundred twenty of the criminal  proce-
dure law, or the applicable provisions of law of any other jurisdiction;
or  (iii) a conviction the records of which have been expunged or sealed
pursuant to the applicable provisions of the laws of this  state  or  of
any  other  jurisdiction; and (iv) a conviction for which other evidence
of successful rehabilitation to remove the disability has been issued.
  Provided, however, a fine shall not be imposed for the  causes  speci-
fied in paragraph f of this subdivision.
  In  lieu  of  or in conjunction with the suspension or revocation of a
license, or the imposition of a  fine  pursuant  to  this  section,  the
secretary  may issue a reprimand. When a license issued pursuant to this
article is revoked, such license shall not  be  reinstated  or  reissued

S. 5748                             4

until after the expiration of a period of one year from the date of such
revocation. No license shall be issued after a second revocation.
  S  10.  Subdivision  2  of section 410 of the general business law, as
amended by chapter 324 of the laws of the 1998, is amended  to  read  as
follows:
  2.  Unlicensed activities. a.  THE CONDUCT OF ANY ACTIVITY FOR WHICH A
LICENSE IS REQUIRED BY THIS ARTICLE WITHOUT SUCH LICENSE, OR WITHOUT THE
BOND, LIABILITY INSURANCE OR COMBINATION THEREOF AS REQUIRED PURSUANT TO
REGULATIONS PROMULGATED BY THE SECRETARY, CONSTITUTES A THREAT TO PUBLIC
HEALTH, SAFETY AND WELFARE. The secretary may issue an  IMMEDIATE  order
directing  the cessation of any activity for which a license is required
by this article [upon a determination] IF THE  SECRETARY  FINDS  that  a
person,  [including a] partnership, a limited liability company or BUSI-
NESS corporation, [has engaged] IS ENGAGING in or  [followed]  FOLLOWING
the  business  or  occupation  of, or [held] HOLDING himself, HERSELF or
itself out as or [acted] IS ACTING, temporarily or otherwise, as a  nail
specialist,  natural hair stylist, esthetician, cosmetologist or appear-
ance enhancement business within this  state  without  a  valid  license
[being  in effect], OR WITHOUT THE BOND, LIABILITY INSURANCE OR COMBINA-
TION THEREOF AS REQUIRED PURSUANT  TO  REGULATIONS  PROMULGATED  BY  THE
SECRETARY.  [The] UPON THE ISSUANCE OF SUCH ORDER, THE department shall,
[before  making  such determination and order] UPON REQUEST, afford such
person, partnership, limited liability company or  BUSINESS  corporation
an  opportunity to be heard in person or by counsel in reference thereto
in an adjudicatory proceeding [held pursuant to this article].
  b. The SECRETARY OR attorney general, acting on behalf of  the  secre-
tary,  may  commence  an  action  or  proceeding in a court of competent
jurisdiction to obtain a  judgment  against  such  person,  partnership,
limited  liability company or BUSINESS corporation in an amount equal to
that assessed as a civil penalty.  Said  judgment  shall  thereafter  be
enforceable by any means authorized by the civil practice law and rules.
  C.  WHERE  AN  APPEARANCE  ENHANCEMENT  BUSINESS OPERATOR CONTINUES TO
OPERATE WITHOUT A LICENSE FOLLOWING THE ISSUANCE  OF  AN  ORDER  BY  THE
SECRETARY  DIRECTING  CESSATION,  THE SECRETARY OR THE ATTORNEY GENERAL,
ACTING ON BEHALF OF THE SECRETARY, MAY COMMENCE AN ACTION OR  PROCEEDING
IN  A COURT OF COMPETENT JURISDICTION AGAINST SUCH OPERATOR TO OBTAIN AN
ORDER ENJOINING  FURTHER  OPERATION  OF  SUCH  BUSINESS.  AN  APPEARANCE
ENHANCEMENT  BUSINESS THAT HAS BEEN ORDERED TO CEASE OPERATION SHALL NOT
RE-OPEN WITHOUT FIRST OBTAINING A LICENSE AS REQUIRED  BY  THIS  ARTICLE
AND PAYING ANY ASSESSED FINES.
  S 11. Subdivisions 1 and 2 of section 411 of the general business law,
subdivision  1 as added by chapter 509 of the laws of 1992, and subdivi-
sion 2 as amended by chapter 134 of the laws of the 2000, are amended to
read as follows:
  1. Denial of license OR REGISTRATION.  The  department  shall,  before
making  a  final  determination  to deny an application for a license OR
REGISTRATION, notify the applicant in writing of the  reasons  for  such
proposed  denial  and  shall  afford  the applicant an opportunity to be
heard in person or by counsel prior to denial of the  application.  Such
notification  shall  be served personally or by certified mail or in any
manner authorized by the civil practice law and rules for service  of  a
summons.  If  a hearing is requested, such hearing shall be held at such
time and place as the department shall  prescribe.    If  the  applicant
fails  to  make a written request for a hearing within thirty days after
receipt of such notification, then  the  notification  of  denial  shall
become the final determination of the department. The department, acting

S. 5748                             5

by  such officer or person in the department as the secretary may desig-
nate, shall have the power to subpoena and bring before the  officer  or
person so designated any person in this state, and administer an oath to
and  take testimony of any person or cause his deposition to be taken. A
subpoena issued under this section shall be regulated by the civil prac-
tice law and rules. If, after such hearing, the application  is  denied,
written  notice  of  such  denial  shall  be  served  upon the applicant
personally or by certified mail or in any manner authorized by the civil
practice law and rules for the service of a summons.
  2. Revocation, suspension, reprimands, fines[; unlicensed activities].
The department shall, before  revoking  or  suspending  any  license  OR
REGISTRATION  or  imposing any fine or reprimand on the holder thereof[,
or before issuing any order directing the cessation of unlicensed activ-
ities,] and at least ten days prior to the date  set  for  the  hearing,
notify  in writing the holder of such license[, or the person alleged to
have engaged in unlicensed activities,] OR REGISTRATION of  any  charges
made  and  shall afford such 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 REGISTRANT or person
charged, or by mailing same by certified mail to the last known business
or other address provided by such person to the secretary of  state,  or
by  any  method  authorized  by the civil practice law and rules for the
service of a summons. The hearing on such charges shall be at such  time
and place as the department shall prescribe.
  S  12.  Section 412 of the general business law, as amended by chapter
341 of the laws of 1998, is amended to read as follows:
  S 412. Civil penalties. 1. The practice  of  nail  specialty,  waxing,
natural  hair  styling, esthetics or cosmetology, or the operation of an
appearance enhancement business without a license or while under suspen-
sion or revocation, or in violation of an order directing the  cessation
of  unlicensed activity issued by the secretary pursuant to section four
hundred eleven of this article, is a violation and is subject to a civil
penalty of up to five hundred dollars for the first violation; one thou-
sand dollars for a second such violation; and two thousand five  hundred
dollars for a third violation and any subsequent violation.
  2.  THE  OPERATION  OF  AN  APPEARANCE  ENHANCEMENT BUSINESS WITHOUT A
LICENSE OR WHILE UNDER SUSPENSION OR REVOCATION, OR IN VIOLATION  OF  AN
ORDER DIRECTING CESSATION OF UNLICENSED ACTIVITY ISSUED BY THE SECRETARY
PURSUANT  TO  SECTION FOUR HUNDRED ELEVEN OF THIS ARTICLE IS A VIOLATION
AND IS SUBJECT TO A CIVIL PENALTY OF UP TO  TWO  THOUSAND  FIVE  HUNDRED
DOLLARS FOR THE FIRST VIOLATION; FIVE THOUSAND DOLLARS FOR A SECOND SUCH
VIOLATION; AND TEN THOUSAND DOLLARS FOR A THIRD VIOLATION AND ANY SUBSE-
QUENT VIOLATION.
  S 13. This act shall take effect immediately.

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Senate Bill S5748

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Sponsored By

Brad Hoylman-Sigal

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

co-Sponsors

Phil Boyle

Adriano Espaillat

Jesse Hamilton

Daniel L. Squadron

2015-S5748 (ACTIVE) - Details

2015-S5748 (ACTIVE) - Summary

2015-S5748 (ACTIVE) - Sponsor Memo

2015-S5748 (ACTIVE) - Bill Text download pdf

Comments