Enhances the regulation of the provision of services of guides and the outfitters who procure guides.
TITLE OF BILL: An act to amend the environmental conservation law, in relation to guides and outfitters
PURPOSE: The purpose of this bill is to amend the Environmental Conservation Law (ECL) to amend the definition of a guide, prohibit the act of guiding while under the influence of drugs or alcohol, and increase penalty provisions related thereto.
SUMMARY OF PROVISIONS:
Section 1 of this bill would rename the title of ECL § 11-0533 as "Guides and Outfitters." It would amend ECL § 11-0533 (1) to clarify the definition of a guide as an individual who offers services for hire for recreational activities and to add kayaking to the list of services and activities. It would also add a definition of "outfitter" to mean any person soliciting to provide or providing guide services for compensation. The section would also amend ECL § 11-0533 (5) to provide that the fee for guide licenses shall not exceed two hundred dollars for residents and establishes a new five hundred dollar fee for non-residents. New ECL § 11-0533 (7) would prohibit outfitters from providing unlicensed guides for guiding services, and add a new requirement that guides and outfitters provide written disclosures stating the terms of service to be provided.
Section 1 would prohibit any person from guiding while in an intoxicated or impaired condition as defined in ECL § 11-1201, prohibit outfitters from knowingly providing guides for service who are or appear to be intoxicated or impaired, and make violations of these provisions subject to the standards, procedures and penalties established by ECL § 11-1205 and 11-1209.
This section would add submitting false documentation, or violating the penal law while guiding to the list of reasons a guide's license may be revoked and allows the Department to suspend a license for up to two years or revoke a license following a hearing or opportunity to be heard and establish certain circumstances when licenses could be immediately suspended. This section would require the Department to maintain a current list of licensed guides on the department's website, instead of publishing it annually.
Section 2 of this bill would add a new subdivision 14 to ECL § 71-0921 to provide that a first violation of ECL § 11-0533 (2) (guiding without a license), (7) (an outfitter providing an unlicensed guide) or (10) (an outfitter knowingly providing guides who are intoxicated or impaired) is a class B misdemeanor, punishable by a fine of no more than $5,000 or imprisonment of no more than 90 days or both.
Section 2 would also provide that a second violation or subsequent violations is a class A misdemeanor, punishable by a fine of no more than $10,000 or imprisonment of no more than one year or both. Lastly, for two or more convictions or manslaughter or reckless endangerment, it would authorize the Department or a court to revoke for a minimum of five years a guide's license or the privilege of an outfitter to provide guides.
Additionally, Section 2 would add a new subdivision 15 to ECL§ 71-0921 to provide that, in the case of two or more violations of ECL 11-0533(7) or (10), or in the case of a conviction of reckless endangerment or manslaughter by a person engaged in guiding activities for an outfitter, the Department or a court may suspend that outfitter's ability to provide guides. It would also provide that the Department or a court may take the gravity of the offense into consideration in determining the length of the suspension.
Section 2 of this bill would add a new subdivision 16 to ECL § 71-0925 to provide that a violation of ECL § 11-0533(6) guiding while not wearing your guide license in plain sight,) (7) or (8) f (failure to provide a written disclosure of services) is a violation punishable by a fine of no less than $500.
Section 4 provides that this bill would take effect immediately.
EXISTING LAW: ECL § 11-0533 was promulgated in 1985, and has not been amended since that time. This statute defines the term "guide," establishes the license fee, provides for certain requirements and punishments, and requires the Department annually publish a list of guides
JUSTIFICATION: In New York State, there are currently more than 2,100 licensed guides who offer instructional services in recreational areas such as fishing, hunting, whitewater rafting and camping. In many instances, the individuals who contract with guides are inexperienced in a particular recreational activity, some of which may be extremely dangerous. For the safety and well being of all parties involved, it is important to ensure that experienced and responsible guides are at the helm.
It is essential that individuals engaged in guiding activities be properly trained, fully licensed and not under the influence of drugs and/or alcohol at the time they are providing these services. It is equally critical that businesses which offer guides for service are required to ensure that they offer only sober licensed guides.
In the fall of 2012, a licensed guide provided by a New York State rafting company was charged with criminally negligent homicide after being accused of rafting while intoxicated, resulting in the death of a client. Earlier that spring the owner of the same rafting company was charged with reckless endangerment after abandoning a raft full of clients, leaving them to fend for themselves. The owner was able to maintain his guiding license amid the charges. The ECL does not currently prohibit acting as a guide while under the influence of drugs or alcohol, and limits the reasons for revoking a guide's license to violations of the ECL or providing false information to the Department. These violations are only punishable by the revocation of a guide's license for one year.
Multiple guiding associations have requested additional statutory requirements that would address the issue of individuals guiding without a license and to punish guides who partake in unethical behavior such as failing to provide adequate guiding services, and sometimes reckless behavior such as guiding while under the influence
of alcohol and drugs. Unlicensed and reckless guides endanger citizens and create an unreasonable risk of injury and death.
Such behavior damages the reputation and livelihoods of highly regarded guides and guiding associations who enforce strict member guidelines, provide training programs, and work in conjunction with the Department's Guide Licensing Program.
This proposal will add oversight of outfitters to ensure that licensed guides are provided to tourists, and will add disclosure to consumers that will ensure they know what services they are to receive. It would subject those who engage in the act of guiding while in an intoxicated or impaired condition to the same standards, procedures and punishments as hunting while intoxicated. It would also establish more stringent penalties when violations do occur to minimize the possibility of tragedies occurring again.
LEGISLATIVE HISTORY: New Bill
FISCAL IMPLICATIONS: None
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 6663 IN SENATE February 25, 2014 ___________Introduced by Sen. LITTLE -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, in relation to guides and outfitters THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 11-0533 of the environmental conservation law, as added by chapter 398 of the laws of 1985, is amended to read as follows: S 11-0533.
[Licensing of guides]GUIDES AND OUTFITTERS. 1. DEFINITIONS. As used in this section [, the term "guide"]: A. "GUIDE" shall mean [a person]AN INDIVIDUAL who offers services for hire part or all of which includes directing, instructing, or aiding another in fishing, hunting, camping, hiking, white water canoeing, KAYAKING AND rafting, or rock and ice climbing. B. "OUTFITTER" SHALL MEAN ANY PERSON SOLICITING TO PROVIDE OR WHO PROVIDES, FOR COMPENSATION, A GUIDE. 2. All guides engaging in the business of guiding on all lands and waters of the state shall possess a license issued by the department, except for any [persons]INDIVIDUALS operating or assisting upon a public vessel for hire (passenger carrying vessels), licensed by the United States Coast Guard or New York state, upon the Atlantic Ocean and all other marine and coastal waters, tidal waters including the Hudson river up to the Troy barrier dam, St. Lawrence river, Great Lakes and the navigable portion of their tributaries, and other navigable waters, as determined by the department. 3. Except while guiding for the purposes of hunting and/or fishing, no license as defined in section 11-0701 OF THIS ARTICLE is required for such acts. 4. Employees of children's camps as defined in subdivision one of section one thousand four hundred of the public health law shall be exempt from the provisions of subdivisions one and two of this section, provided such activities are carried out within the scope of said employment.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11378-02-4 S. 6663 2
5. A license as required under subdivision two of this section shall be issued for a period of five calendar years and the fee therefor shall be established by the department, not to exceed two hundred dollars FOR RESIDENTS AND FIVE HUNDRED DOLLARS FOR NON-RESIDENTS. 6. Every licensed guide while engaged in guiding shall wear in plain sight identification furnished by the department. Licensed guides shall be at least eighteen years of age. They shall be skilled in the use of boats and canoes whenever use of these craft is required and shall be persons competent to guide one or more of the following: camping, hunt- ing, fishing, hiking, white water canoeing/rafting, rock or ice climbing or other similar activities. The department shall by regulation estab- lish standards and procedures for testing and licensing of guides. 7.
[Any]NO OUTFITTER SHALL PROVIDE FOR GUIDE SERVICES A GUIDE WHO IS NOT LICENSED PURSUANT TO THIS SECTION. 8. EVERY LICENSED GUIDE OR THE OUTFITTER PROVIDING THE SERVICES OF SUCH A GUIDE SHALL, PRIOR TO ENGAGING IN GUIDING OR PROVIDING A GUIDE FOR SERVICE, PROVIDE A WRITTEN DISCLOSURE OF THE TERMS OF EMPLOYMENT OF THE GUIDE BY THE CLIENT, INCLUDING THE DATE, TIME PERIOD, COST AND CHAR- ACTER OF THE SERVICES TO BE PROVIDED. SUCH WRITTEN DISCLOSURE SHALL BE SIGNED BY THE CLIENT PRIOR TO THE PROVISION OF GUIDE SERVICES AND BE MAINTAINED FOR INSPECTION BY THE GUIDE OR THE OUTFITTER FOR A PERIOD OF TWO YEARS. 9. NO INDIVIDUAL SHALL ENGAGE IN GUIDING WHILE IN AN INTOXICATED CONDITION, AS DEFINED IN SECTION 11-1201 OF THIS ARTICLE. NO INDIVIDUAL SHALL ENGAGE IN GUIDING WHEN HIS OR HER ABILITY TO GUIDE CREATES AN UNREASONABLE RISK OF INJURY OR DEATH TO HIMSELF OR HERSELF, OR ANOTHER HUMAN LIFE. ANY INDIVIDUAL WHO GUIDES WHILE IN AN INTOXICATED CONDITION OR AN IMPAIRED CONDITION, AS DEFINED IN SECTION 11-1201 OF THIS ARTICLE, SHALL BE SUBJECT TO THE SAME RULES OF EVIDENCE, STANDARDS, PROCEDURES AND PENALTIES ESTABLISHED PURSUANT TO SECTIONS 11-1205 AND 11-1209 OF THIS ARTICLE AS IF HE OR SHE WERE HUNTING WHILE INTOXICATED. 10. NO OUTFITTER SHALL KNOWINGLY PROVIDE GUIDES WHO ARE, APPEAR TO BE OR ARE SUSPECTED TO BE IN AN INTOXICATED OR IMPAIRED CONDITION, AS DEFINED IN SECTION 11-1201 OF THIS ARTICLE. 11. FOR ANY licensed guide who violates any provision of this chapter or who makes any false statement OR SUBMITS FALSE DOCUMENTATION in his OR HER application for a license [shall], OR VIOLATES ANY PROVISION OF THE PENAL LAW WHILE GUIDING, in addition to any other penalties, [imme- diately surrender his license to]the department [, which]may [be revoked by the department]SUSPEND SUCH GUIDE'S LICENSE for up to [one year following the date of such surrender]TWO YEARS, OR REVOKE SUCH LICENSE; PROVIDED THAT SUCH SUSPENSION OR REVOCATION SHALL BECOME EFFEC- TIVE AFTER A HEARING OR OPPORTUNITY TO BE HEARD PURSUANT TO THE PROVISIONS OF DEPARTMENT REGULATIONS, UNLESS A HEARING IS WAIVED BY SUCH GUIDE. IF THE ALLEGED VIOLATION IS FOR GUIDING WHILE IN AN INTOXICATED OR IMPAIRED CONDITION, OR THE GUIDE REFUSES TO TAKE A BREATH TEST OR CHEMICAL TEST, AND THERE WAS A THREAT OF HARM OR LOSS OF LIFE TO THE GUIDE'S CLIENT, THE DEPARTMENT MAY IMMEDIATELY SUSPEND THE GUIDE'S LICENSE PENDING ANY PROSECUTION, PROVIDED THAT THE DEPARTMENT SHALL OFFER THE GUIDE AN OPPORTUNITY TO HAVE A HEARING WITHIN FIFTEEN DAYS. FOR PURPOSES OF THIS SUBDIVISION, "THREAT OF HARM OR LOSS OF LIFE" SHALL INCLUDE TAKING A CLIENT BOATING, KAYAKING, CANOEING, RAFTING, HUNTING WITH A FIREARM OR BOW, ROCK CLIMBING OR ICE CLIMBING WHILE IN AN INTOXI- CATED OR IMPAIRED CONDITION. [8.]12. The department shall [publish]MAINTAIN a CURRENT list of LICENSED guides [annually]ON THE DEPARTMENT'S WEBSITE.S. 6663 3
S 2. Section 71-0921 of the environmental conservation law is amended by adding three new subdivisions 14, 15 and 16 to read as follows: 14. VIOLATION OF SUBDIVISION TWO, SEVEN OR TEN OF SECTION 11-0533 OF THIS CHAPTER SHALL, IN THE CASE OF A FIRST VIOLATION, BE GUILTY OF A MISDEMEANOR AND, UPON CONVICTION THEREOF, BE PUNISHED BY A FINE NOT TO EXCEED FIVE THOUSAND DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN NINETY DAYS, OR BY BOTH SUCH FINE AND IMPRISONMENT; IN THE CASE OF A SECOND OR SUBSEQUENT VIOLATION, SUCH PERSON SHALL BE GUILTY OF A MISDEMEANOR AND, UPON CONVICTION THEREOF, SHALL BE PUNISHED BY A FINE NOT TO EXCEED TEN THOUSAND DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR BY BOTH SUCH FINE AND IMPRISONMENT. 15. THE DEPARTMENT OR A COURT MAY, FOR CAUSE AND AFTER TWO OR MORE VIOLATIONS OF SUBDIVISION SEVEN OR TEN OF SECTION 11-0533 OF THIS CHAP- TER, SUSPEND AN OUTFITTER'S PRIVILEGE TO PROVIDE GUIDES FOR AT LEAST ONE YEAR AND NO MORE THAN TEN YEARS. IN DETERMINING THE LENGTH OF SUCH SUSPENSION, THE DEPARTMENT OR A COURT SHALL TAKE INTO CONSIDERATION THE SERIOUSNESS OF THE OFFENSE. 16. THE DEPARTMENT OR A COURT MAY REVOKE THE LICENSE OF A GUIDE, OR THE PRIVILEGE OF AN OUTFITTER TO PROVIDE GUIDES, FOR NOT LESS THAN FIVE YEARS UPON A CONVICTION OF MANSLAUGHTER OR RECKLESS ENDANGERMENT WHILE GUIDING BY A GUIDE OR BY A PERSON ACTING AS A GUIDE WHILE WORKING FOR THE OUTFITTER. S 3. Section 71-0925 of the environmental conservation law is amended by adding a new subdivision 16 to read as follows: 16. IF THE VIOLATION WAS A VIOLATION OF SUBDIVISION SIX, SEVEN OR EIGHT OF SECTION 11-0533 OF THIS CHAPTER, NOT LESS THAN FIVE HUNDRED DOLLARS. S 4. This act shall take effect immediately.