Amd SS400 & 410, add S412-a, Gen Bus L; amd S1310, CPLR
Relates to licensing of appearance enhancement businesses; includes violations of human trafficking and sex-trafficking in specified offenses for which forfeiture is a remedy.
STATE OF NEW YORK
________________________________________________________________________
S. 2970 A. 4420
2015-2016 Regular Sessions
SENATE - ASSEMBLY
January 30, 2015
___________
IN SENATE -- Introduced by Sen. GOLDEN -- read twice and ordered print-
ed, and when printed to be committed to the Committee on Consumer
Protection
IN ASSEMBLY -- Introduced by M. of A. MALLIOTAKIS -- read once and
referred to the Committee on Economic Development
AN ACT to amend the general business law and the civil practice law and
rules, in relation to licensing of appearance enhancement businesses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 400 of the general business law is amended by
2 adding a new subdivision 11 to read as follows:
3 11. "Related person" means a "related person" as such term is
4 described pursuant to subparagraph (c) of paragraph three of subsection
5 (b) of section four hundred sixty-five of the internal revenue code.
6 § 2. Subdivision 1 of section 410 of the general business law, as
7 added by chapter 509 of the laws of 1992, is amended to read as follows:
8 1. Suspension and revocation of licenses; fines; reprimands. A license
9 issued pursuant to this article may be suspended or revoked, or a fine
10 not exceeding five hundred dollars payable to the department may be
11 imposed for any one or more of the following causes:
12 a. Fraud or bribery in securing a license or permission to take an
13 examination therefor.
14 b. The making of any false statement as to a material matter in any
15 application or other statement or certificate required by or pursuant to
16 this article.
17 c. Incompetence or untrustworthiness.
18 d. Failure to display the license as provided in this article.
19 e. Violation of any provision of this article, or of any rule or regu-
20 lation adopted hereunder.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08189-01-5
S. 2970 2 A. 4420
1 f. Conviction of any of the following crimes subsequent to the issu-
2 ance of a license pursuant to this article: fraud pursuant to sections
3 170.10, 170.15, 176.15, 176.20, 176.25, 176.30 and 190.65; falsifying
4 business records pursuant to section 175.10; grand larceny pursuant to
5 article 155; bribery pursuant to sections 180.03, 180.08, 180.15,
6 180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
7 perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
8 sections 120.05, 120.10, 120.11, 120.12; robbery pursuant to article
9 160; homicide pursuant to sections 125.25 and 125.27; manslaughter
10 pursuant to sections 125.15 and 125.20; kidnapping and unlawful impri-
11 sonment pursuant to sections 135.10, 135.20 and 135.25; prostitution
12 offenses pursuant to article two hundred thirty of the penal law; unlaw-
13 ful weapons possession pursuant to sections 265.02, 265.03 and 265.04;
14 criminal use of a weapon pursuant to sections 265.08 and 265.09; crimi-
15 nal sale of a weapon pursuant to sections 265.11 and 265.12; and sex
16 offenses pursuant to article 130 of the penal law. Provided, however,
17 that for the purposes of this article, none of the following shall be
18 considered criminal convictions or reported as such: (i) a conviction
19 for which an executive pardon has been issued pursuant to the executive
20 law; (ii) a conviction which has been vacated and replaced by a youthful
21 offender finding pursuant to article seven hundred twenty of the crimi-
22 nal procedure law, or the applicable provisions of law of any other
23 jurisdiction; or (iii) a conviction the records of which have been
24 expunged or sealed pursuant to the applicable provisions of the laws of
25 this state or of any other jurisdiction; and (iv) a conviction for which
26 other evidence of successful rehabilitation to remove the disability has
27 been issued.
28 [Provided, however, a fine shall not be imposed for the] Except in the
29 case of causes specified in paragraph f of this subdivision[. In], in
30 lieu of or in conjunction with the suspension or revocation of a
31 license, or the imposition of a fine pursuant to this section, the
32 secretary may issue a reprimand. When a license issued pursuant to this
33 article is revoked, such license shall not be reinstated or reissued
34 until after the expiration of a period of one year from the date of such
35 revocation. No license shall be issued after a second revocation. In
36 addition to the forgoing one year revocation, when a license for an
37 appearance enhancement business is revoked, a license shall not be rein-
38 stated or reissued to the original licensee, or to any related person,
39 as defined in this article for a period of five years for operation at
40 an address within the same county as the original place of business
41 listed on or for the license, and no license shall be issued after a
42 second revocation.
43 § 3. The general business law is amended by adding a new section 412-a
44 to read as follows:
45 § 412-a. Additional provisions with respect to an appearance enhance-
46 ment business. 1. Any other provisions of this article to the contrary
47 notwithstanding:
48 a. Any license or renewal thereof issued for an appearance enhancement
49 business pursuant to this article may be revoked, cancelled, suspended,
50 and/or subjected to the imposition of a civil penalty for cause or
51 violations occurring during the license period and/or the period imme-
52 diately preceding the issuance of such license or renewal, and must be
53 revoked upon conviction of the licensee upon any felony offense listed
54 in paragraph f of subdivision one of section four hundred ten of this
55 article. As used in this section, the term "for cause" means and
56 includes the existence of a sustained and continuing pattern of noise,
S. 2970 3 A. 4420
1 disturbance, misconduct, or disorder on or about the licensed premises,
2 related to the operation of the premises or the conduct of its patrons,
3 which adversely affects the health, welfare, or safety of the inhabit-
4 ants of the area in which such licensed premises are located. The exist-
5 ence of a sustained and continuing pattern of noise, disturbance,
6 misconduct, or disorder on or about the licensed premises, related to
7 the operation of the premises or the conduct of its patrons, will be
8 presumed upon the fourth incident reported to a law enforcement agency
9 of noise or disturbance or misconduct or disorder on or about the
10 licensed premises or related to the operation of the premises or the
11 conduct of its patrons, in any one hundred eighty day period, absent
12 clear and convincing evidence of either fraudulent intent on the part of
13 any complainant or a factual error with respect to the content of any
14 report concerning such complaint relied upon by the secretary.
15 b. A person who operates an appearance enhancement business within
16 this state without a valid license being in effect shall have up to one
17 month after notification to apply for such license and up to one year to
18 obtain such license. Operation of an appearance enhancement business
19 within this state without a valid license being in effect or without
20 proof that application has been made for a valid license within three
21 months of notification, shall result in ineligibility for a license
22 under this article for a period of five years for the person or persons,
23 including a partnership, a limited liability company or corporation, and
24 related person as defined in this article.
25 c. Any other provision of any other law to the contrary notwithstand-
26 ing, two or more convictions of any person or persons, within a period
27 of one year, for any of the offenses described in article two hundred
28 thirty of the penal law arising out of conduct engaged in at the busi-
29 ness location of an appearance enhancement business shall be presumptive
30 evidence of conduct constituting use of the premises for purposes of
31 prostitution, and such business location shall be subject to any and all
32 of the actions, jurisdiction, remedies, and other provisions provided
33 for in title two of article twenty-three of the public health law.
34 2. An appearance enhancement business may not be operated between the
35 hours of midnight and five a.m., except the case of an appearance
36 enhancement business located on the premises of a health care facility
37 licensed or permitted by the state; a hotel, motel, or bed and breakfast
38 inn; a timeshare property; a public airport; or a pari-mutuel facility;
39 or during a special event if the county or municipality in which the
40 establishment operates has approved such operation during the special
41 event; provided however that any procedure performed between the hours
42 of midnight and five a.m. in any of the preceding exceptions shall be
43 performed only by an individual licensed to perform such procedure under
44 this article. A person violating the provisions of this subdivision
45 shall be deemed guilty of a misdemeanor and upon conviction shall be
46 punished by imprisonment for six months or by a fine of five hundred
47 dollars or both. A second or subsequent violation of this subdivision
48 within a five year period shall be deemed a class E felony.
49 3. An appearance enhancement business which does not offer all of the
50 following services required to be licensed pursuant to this article
51 shall be required to post the toll-free number, address and other perti-
52 nent information as determined and required by the secretary of the
53 National Human Trafficking Resource Center in an area easily observable
54 to patrons, employees, and visitors: nail specialty, waxing, natural
55 hair styling, esthetics or cosmetology, as defined in section four
56 hundred of this article.
S. 2970 4 A. 4420
1 4. Restraint of unlawful acts by appearance enhancement businesses.
2 Where a violation of this title is alleged to have occurred by or at a
3 licensed appearance enhancement business or by a person or persons,
4 including a partnership, a limited liability company or corporation, who
5 have engaged in or followed the business or occupation of, or held
6 himself, herself or itself out as or acted, temporarily or otherwise, as
7 an appearance enhancement business in cities having a population of one
8 million or more, in addition to the attorney general or the department,
9 the corporation counsel may apply to the supreme court within the judi-
10 cial district in which such violation is alleged to have occurred for an
11 order enjoining or restraining commission or continuance of the unlawful
12 acts complained of. The remedy provided in this section shall be in
13 addition to any other remedy provided by law or to the proceedings
14 commenced against a licensee under this title.
15 § 4. Subdivisions 4-b and 6 of section 1310 of the civil practice law
16 and rules, subdivision 4-b as added by chapter 655 of the laws of 1990
17 and subdivision 6 as added by chapter 669 of the laws of 1984, are
18 amended to read as follows:
19 4-b. "Specified felony offense" means:
20 (a) a conviction of a person for a violation of section 220.18,
21 220.21, 220.41, [or] 220.43, 230.34 or 135.35 of the penal law, or where
22 the accusatory instrument charges one or more of such offenses,
23 conviction upon a plea of guilty to any of the felonies for which such
24 plea is otherwise authorized by law or a conviction of a person for
25 conspiracy to commit a violation of section 220.18, 220.21, 220.41, or
26 220.43 of the penal law, where the controlled substances which are the
27 object of the conspiracy are located in the real property which is the
28 subject of the forfeiture action; or
29 (b) on three or more occasions, engaging in conduct constituting a
30 violation of any of the felonies defined in section 220.09, 220.16,
31 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43 [or], 221.55,
32 230.34 or 135.35 of the penal law, which violations do not constitute a
33 single criminal offense as defined in subdivision one of section 40.10
34 of the criminal procedure law, or a single criminal transaction, as
35 defined in paragraph (a) of subdivision two of section 40.10 of the
36 criminal procedure law, and at least one of which resulted in a
37 conviction of such offense, or where the accusatory instrument charges
38 one or more of such felonies, conviction upon a plea of guilty to a
39 felony for which such plea is otherwise authorized by law; or
40 (c) a conviction of a person for a violation of section 220.09,
41 220.16, 220.34 [or], 220.39, 230.34 or 135.35 of the penal law, or a
42 conviction of a criminal defendant for a violation of section 221.30 of
43 the penal law, or where the accusatory instrument charges any such felo-
44 ny, conviction upon a plea of guilty to a felony for which the plea is
45 otherwise authorized by law, together with evidence which: (i) provides
46 substantial indicia that the defendant used the real property to engage
47 in a continual, ongoing course of conduct involving the unlawful mixing,
48 compounding, manufacturing, warehousing, or packaging of controlled
49 substances or where the conviction is for a violation of section 221.30
50 of the penal law, marijuana, as part of an illegal trade or business for
51 gain; and (ii) establishes, where the conviction is for possession of a
52 controlled substance or where the conviction is for a violation of
53 section 221.30 of the penal law, marijuana, that such possession was
54 with the intent to sell it.
S. 2970 5 A. 4420
1 6. "Pre-conviction forfeiture crime" means only a felony defined in
2 article two hundred twenty or section 221.30 [or], 221.55, 230.34 or
3 135.35 of the penal law.
4 § 5. This act shall take effect immediately.
