S01909 Summary:

BILL NOS01909
 
SAME ASNo same as
 
SPONSORLIBOUS
 
COSPNSR
 
MLTSPNSR
 
Amd SS3, 106 & 17, ABC L; amd S89-f, Gen Bus L
 
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.
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S01909 Actions:

BILL NOS01909
 
01/09/2013REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
01/08/2014REFERRED TO INVESTIGATIONS AND GOVERNMENT OPERATIONS
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S01909 Text:



 
                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.
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