Directs persons licensed for on-premises consumption of alcoholic beverages to have a criminal background history check performed on prospective bouncers; defines the term "bouncer"; provides for the establishment and certification of bouncer training programs by the state liquor authority; requires certain bouncers to be so certified and provides incentives to the employers of persons not required to be so certified but do receive such certification; excludes bouncers from the definition of security guards for purposes of the licensing of such guards pursuant to the general business law.
STATE OF NEW YORK
________________________________________________________________________
1909
2013-2014 Regular Sessions
IN SENATE(Prefiled)
January 9, 2013
___________
Introduced by Sen. LIBOUS -- read twice and ordered printed, and when
printed to be committed to the Committee on Investigations and Govern-
ment Operations
AN ACT to amend the alcoholic beverage control law and the general busi-
ness law, in relation to criminal history information for persons
employed as bouncers at retail licensed premises for on-premises
consumption and directing the state liquor authority to establish a
certification program for bouncers
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 3 of the alcoholic beverage control law is amended
2 by adding two new subdivisions 6-a and 9-b to read as follows:
3 6-a. "Bouncer" shall mean a person employed by an on-premises retail
4 licensee where the principal basis for such person's employment is to
5 generally keep the peace upon the licensed premises of such licensee, or
6 to screen potential customers for suitable attire or clothing. A bounc-
7 er shall not include (i) any person whose principal duties are to assist
8 in compliance with section sixty-five of this chapter by checking iden-
9 tification, or assessing the state of impairment of persons on or about
10 the licensed premises, or any person whose principal duties are the
11 serving of food and beverages to patrons, or (ii) any person employed as
12 a security guard at a theatre, arena, stadium or other place where
13 public exhibitions, games, contests and/or performances are held,
14 provided that such person is a registered security guard pursuant to
15 article seven-A of the general business law.
16 9-b. "Criminal history information" shall mean a record of all
17 convictions of crimes maintained on an individual by the division of
18 criminal justice services pursuant to paragraph (c) of subdivision four
19 of section eight hundred thirty-seven of the executive law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05279-02-3
S. 1909 2
1 § 2. Section 106 of the alcoholic beverage control law is amended by
2 adding a new subdivision 16 to read as follows:
3 16. (a) All retail licensees for on-premises consumption licensed
4 pursuant to section sixty-four-d of this chapter and all other retail
5 licensees for on-premises consumption with a capacity of two hundred
6 fifty persons or more that employ one or more bouncers shall:
7 (1) require an applicant for employment as a bouncer to submit a set
8 of fingerprints to such licensee in order to obtain criminal history
9 information. Such criminal history information shall be obtained accord-
10 ing to the provisions of this subdivision;
11 (2) to the extent permitted by law, request from a person applying for
12 employment as a bouncer a statement of his or her prior criminal
13 convictions in this state or any other jurisdiction. Prior to requesting
14 information on prior criminal conviction from a prospective bouncer,
15 such licensee shall:
16 (A) inform the prospective bouncer in writing that such licensee is
17 required to request his or her criminal history information from the
18 division of criminal justice services and review such information pursu-
19 ant to this subdivision;
20 (B) inform the prospective bouncer that before such licensee requests
21 such criminal history information, the prospective bouncer has the right
22 to obtain, review and seek correction of his or her criminal history
23 information pursuant to regulations and procedures established by the
24 division of criminal justice services; and
25 (C) obtain the signed informed consent of the prospective bouncer on a
26 form supplied by the division of criminal justice services which indi-
27 cates that such prospective bouncer has:
28 (i) been informed of the right and procedures necessary to obtain,
29 review and seek correction of his or her criminal history information;
30 (ii) been informed of the reason for the request for his or her crimi-
31 nal history information; and
32 (iii) consented to such request; and
33 (3) upon receiving written consent, obtain the fingerprints of such
34 prospective bouncer in such form and manner as shall be specified by the
35 division of criminal justice services.
36 (b) Such licensee may designate one person in his or her employ who
37 shall be authorized to request, receive and review such criminal history
38 information, and only such licensee, his or her designee and the
39 prospective bouncer to which the criminal history information relates
40 shall have access to such information.
41 (c) Such licensee, or his or her designee, shall promptly submit the
42 fingerprints to the division of criminal justice services in a manner
43 prescribed by the division of criminal justice services and shall
44 request and is authorized to receive from the division of criminal
45 justice services criminal history information concerning such prospec-
46 tive bouncer.
47 (d) Notwithstanding the provisions of any law to the contrary, no
48 person applying for employment as a bouncer shall be charged a fee for
49 the criminal history background check required by this subdivision.
50 (e) Such licensee, or his or her designee, shall consider such crimi-
51 nal history information in accordance with article twenty-three-A of the
52 correction law.
53 (f) Such licensee, or his or her designee, shall, upon receipt of any
54 person's criminal history information, immediately mark such criminal
55 history information "confidential", and shall at all times maintain such
56 criminal history information in a secure place. Criminal history infor-
S. 1909 3
1 mation received pursuant to this subdivision shall not be published or
2 in any way disclosed or redisclosed to persons other than such licensee,
3 or his or her designee, and the prospective bouncer. Any person who
4 willfully releases or permits the release of any confidential criminal
5 history information received pursuant to this subdivision to persons not
6 authorized by this subdivision to receive such information shall be
7 guilty of a class A misdemeanor. Any unauthorized disclosure of finger-
8 prints or criminal history information obtained pursuant to this subdi-
9 vision shall also entitle the subject of such fingerprints or criminal
10 history information to recover a civil award of damages resulting from
11 such unauthorized disclosure, together with costs and reasonable attor-
12 ney's fees.
13 (g) Criminal history information provided by the division of criminal
14 justice services pursuant to this subdivision shall be furnished only by
15 mail or other method of secure and confidential delivery, addressed to
16 the authorized recipient. Such information and the envelope in which it
17 is enclosed, if any, shall be prominently marked "confidential", and
18 shall at all times be maintained by the recipient in a secure place.
19 (h) Fingerprints and criminal history information concerning a
20 prospective bouncer shall be returned to such prospective bouncer within
21 ninety days of receipt upon a denial of employment or shall be returned
22 when such prospective bouncer leaves such employment.
23 (i) The commissioner of criminal justice services shall promulgate all
24 rules and regulations necessary to implement the provisions of this
25 subdivision, which shall include convenient procedures for prospective
26 bouncers to promptly verify the accuracy of their criminal history
27 information and, to the extent authorized by law, to have access to
28 relevant documents related thereto.
29 § 3. Section 17 of the alcoholic beverage control law is amended by
30 adding two new subdivisions 10 and 11 to read as follows:
31 10. To prepare and disseminate information to advise licensees
32 licensed for on-premises consumption of the requirement for certain
33 licensees to obtain the criminal history information of a prospective
34 bouncer pursuant to subdivision sixteen of section one hundred six of
35 this chapter. Such information shall also include, but not be limited
36 to, the following:
37 (a) which licensees are subject to the criminal history information
38 requirements;
39 (b) the steps necessary to perform the criminal history information
40 check, including information on form availability and fingerprinting;
41 (c) applicable confidentiality requirements;
42 (d) the requirements of article twenty-three-A of the correction law
43 related to the permissive use of criminal history information in hiring
44 decisions; and
45 (e) other information that is available to prospective employers upon
46 the consent of a prospective bouncer including but not limited to
47 department of motor vehicles records, educational records and credit
48 records, including, where relevant and available, telephone numbers,
49 addresses, and a description of the content and potential uses of such
50 records.
51 11. (a) To develop and establish minimum criteria for bouncer training
52 programs which may be given and administered by schools and other enti-
53 ties including trade associations whose members are engaged in or
54 involved in the retail sale of alcoholic beverages for on-premises
55 consumption. The authority shall provide for the issuance of certif-
56 icates of approval to all certified bouncer training programs. Certif-
S. 1909 4
1 icates of approval may be revoked by the authority for failure to adhere
2 to the authority's rules and regulations. Such rules and regulations
3 shall afford those who have been issued a certificate of approval an
4 opportunity for a hearing prior to any determination of whether such
5 certificate should be revoked.
6 (b) A fee in the amount of nine hundred dollars shall be paid to the
7 authority with each application for a certificate of approval or renewal
8 certificate. The authority shall promptly refund such fee to an appli-
9 cant whose application is denied. Each certificate of approval and
10 renewal thereof shall be issued for a period of three years. To effectu-
11 ate the provisions of this subdivision, the authority is empowered to
12 require in connection with an application the submission of such infor-
13 mation as the authority may direct; to prescribe forms of applications
14 and of all reports which it deems necessary to be made by any applicant
15 or certificate holder; to conduct investigations; to require the mainte-
16 nance of such books and records as the authority may direct; to revoke,
17 cancel or suspend for cause any certificate provided for in this subdi-
18 vision. Each entity authorized to give and administer a bouncer training
19 program shall issue certificates of completion to all licensees and
20 employees who successfully complete such an approved bouncer training
21 program. Such entity shall regularly transmit to the authority the
22 names, addresses and dates of attendance of all the licensees and
23 employees of licensees who successfully complete an approved bouncer
24 training program. Such transmittal shall be in a form and manner
25 prescribed by the authority. The authority shall adopt rules and regu-
26 lations to effectuate the provisions of this subdivision, including the
27 minimum requirements for the curriculum of such training program and the
28 regular ongoing training of employees holding certificates of completion
29 or renewal certificates. Such rules and regulations shall include the
30 form of a certificate of completion or renewal thereof to be issued in
31 respect to such program. A certificate of completion or renewal thereof
32 issued by an entity authorized to give and administer a bouncer training
33 program pursuant to this subdivision to licensees and their employees
34 authorized to sell alcoholic beverages at retail for on-premises
35 consumption shall not be invalidated by a change of employment to anoth-
36 er on-premises licensee. Attendance at any course established pursuant
37 to this subdivision shall be in person, through distance learning meth-
38 ods, or through an internet based online program.
39 (c) The authority shall require all bouncers employed by a licensee
40 for on-premises consumption licensed pursuant to section sixty-four-d of
41 this chapter and all other retail licensees for on-premises consumption
42 with a capacity of two hundred fifty persons or more to obtain a certif-
43 icate of completion from a bouncer training program holding a certif-
44 icate of approval within thirty days of employment as a bouncer.
45 § 4. Section 17 of the alcoholic beverage control law is amended by
46 adding two new subdivisions 15 and 16 to read as follows:
47 15. To prepare and disseminate information to advise licensees
48 licensed for on-premises consumption of the requirement for certain
49 licensees to obtain the criminal history information of a prospective
50 bouncer pursuant to subdivision sixteen of section one hundred six of
51 this chapter. Such information shall also include, but not be limited
52 to, the following:
53 (a) which licensees are subject to the criminal history information
54 requirements;
55 (b) the steps necessary to perform the criminal history information
56 check, including information on form availability and fingerprinting;
S. 1909 5
1 (c) applicable confidentiality requirements;
2 (d) the requirements of article twenty-three-A of the correction law
3 related to the permissive use of criminal history information in hiring
4 decisions; and
5 (e) other information that is available to prospective employers upon
6 the consent of a prospective bouncer including but not limited to
7 department of motor vehicles records, educational records and credit
8 records, including, where relevant and available, telephone numbers,
9 addresses, and a description of the content and potential uses of such
10 records.
11 16. (a) To develop and establish minimum criteria for bouncer training
12 programs which may be given and administered by schools and other enti-
13 ties including trade associations whose members are engaged in or
14 involved in the retail sale of alcoholic beverages for on-premises
15 consumption. The authority shall provide for the issuance of certif-
16 icates of approval to all certified bouncer training programs. Certif-
17 icates of approval may be revoked by the authority for failure to adhere
18 to the authority's rules and regulations. Such rules and regulations
19 shall afford those who have been issued a certificate of approval an
20 opportunity for a hearing prior to any determination of whether such
21 certificate should be revoked.
22 (b) A fee in the amount of nine hundred dollars shall be paid to the
23 authority with each application for a certificate of approval or renewal
24 certificate. The authority shall promptly refund such fee to an appli-
25 cant whose application is denied. Each certificate of approval and
26 renewal thereof shall be issued for a period of three years. To effectu-
27 ate the provisions of this subdivision, the authority is empowered to
28 require in connection with an application the submission of such infor-
29 mation as the authority may direct; to prescribe forms of applications
30 and of all reports which it deems necessary to be made by any applicant
31 or certificate holder; to conduct investigations; to require the mainte-
32 nance of such books and records as the authority may direct; to revoke,
33 cancel or suspend for cause any certificate provided for in this subdi-
34 vision. Each entity authorized to give and administer a bouncer training
35 program shall issue certificates of completion to all licensees and
36 employees who successfully complete such an approved bouncer training
37 program. Such entity shall regularly transmit to the authority the
38 names, addresses and dates of attendance of all the licensees and
39 employees of licensees who successfully complete an approved bouncer
40 training program. Such transmittal shall be in a form and manner
41 prescribed by the authority. The authority shall adopt rules and regu-
42 lations to effectuate the provisions of this subdivision, including the
43 minimum requirements for the curriculum of such training program and the
44 regular ongoing training of employees holding certificates of completion
45 or renewal certificates. Such rules and regulations shall include the
46 form of a certificate of completion or renewal thereof to be issued in
47 respect to such program. A certificate of completion or renewal thereof
48 issued by an entity authorized to give and administer a bouncer training
49 program pursuant to this subdivision to licensees and their employees
50 authorized to sell alcoholic beverages at retail for on-premises
51 consumption shall not be invalidated by a change of employment to anoth-
52 er on-premises licensee. Attendance at any course established pursuant
53 to this subdivision shall be in person, through distance learning meth-
54 ods, or through an internet based online program.
55 (c) The authority shall require all bouncers employed by a licensee
56 for on-premises consumption licensed pursuant to section sixty-four-d of
S. 1909 6
1 this chapter and all other retail licensees for on-premises consumption
2 with a capacity of two hundred fifty persons or more to obtain a certif-
3 icate of completion from a bouncer training program holding a certif-
4 icate of approval within thirty days of employment as a bouncer.
5 § 5. Subdivision 6 of section 106 of the alcoholic beverage control
6 law is amended by adding a new closing paragraph to read as follows:
7 In any proceeding pursuant to section one hundred eighteen of this
8 article to revoke, cancel or suspend a license to sell alcoholic bever-
9 ages, in which proceeding a charge is sustained that a licensee violated
10 this subdivision and the licensee has not had any adjudicated violation
11 of this chapter at the licensed premises where the violation occurred
12 within the previous five year period; and at the time of such violation
13 all bouncers employed at the licensee's premises and present at such
14 premises where the violation occurred held a valid certificate of
15 completion or renewal from an entity authorized to give and administer a
16 bouncer training program pursuant to subdivision sixteen of section
17 seventeen of this chapter, the civil penalty related to such offense
18 shall be recovery of, as provided for in section one hundred twelve of
19 this article, the penal sum of the bond on file during the period in
20 which the violation took place. For the purposes of this subdivision,
21 the five year period shall be measured from the dates that the
22 violations occurred. This provision shall not apply to licensees for
23 on-premises consumption licensed pursuant to section sixty-four-d of
24 this chapter and all other retail licenses for on-premises consumption
25 with a capacity of two hundred fifty or more persons.
26 § 6. Subdivisions 5 and 6 of section 89-f of the general business law,
27 subdivision 5 as amended by chapter 324 of the laws of 1998 and subdivi-
28 sion 6 as amended by chapter 634 of the laws of 1994, are amended to
29 read as follows:
30 5. "Security guard company" shall mean any person, firm, limited
31 liability company, corporation, public entity or subsidiary or depart-
32 ment of such firm, limited liability company, corporation or public
33 entity employing one or more security guards or being self-employed as a
34 security guard on either a proprietary basis for its own use or on a
35 contractual basis for use by another person, firm, limited liability
36 company, corporation, public entity or subsidiary thereof within the
37 state. Any person, firm, limited liability company, corporation or
38 public entity licensed for the on-premises consumption of alcoholic
39 beverages shall not be subject to the provisions of this article.
40 6. "Security guard" shall mean a person, other than a police officer,
41 employed by a security guard company to principally perform one or more
42 of the following functions within the state:
43 a. protection of individuals and/or property from harm, theft or other
44 unlawful activity;
45 b. deterrence, observation, detection and/or reporting of incidents in
46 order to prevent any unlawful or unauthorized activity including but not
47 limited to unlawful or unauthorized intrusion or entry, larceny, vandal-
48 ism, abuse, arson or trespass on property;
49 c. street patrol service;
50 d. response to but not installation or service of a security system
51 alarm installed and/or used to prevent or detect unauthorized intrusion,
52 robbery, burglary, theft, pilferage and other losses and/or to maintain
53 security of a protected premises.
54 Provided, however, that a security guard who is otherwise subject to
55 regulation with respect to registration and training by the federal
56 government in the performance of their duties, or a security guard
S. 1909 7
1 providing such services on a voluntary basis, shall not be subject to
2 the provisions of this article. Any person acting as an agent, where
3 the principal basis for such agent's employment is to serve food or
4 beverages or assist in compliance with the provisions of section sixty-
5 five of the alcoholic beverage control law, or who is a bouncer, as
6 defined in subdivision six-a of section three of the alcoholic beverage
7 control law, of a licensee for the on-premises consumption of alcoholic
8 beverages shall not be subject to the provisions of this article.
9 § 7. This act shall take effect on the one hundred twentieth day after
10 it shall have become a law; provided, however, that the amendments to
11 section 17 of the alcoholic beverage control law, made by section three
12 of this act, shall not affect the expiration and reversion of such
13 section, and shall expire therewith, when upon such date the provisions
14 of section four of this act shall take effect.