STATE OF NEW YORK
________________________________________________________________________
6851
2017-2018 Regular Sessions
IN SENATE
August 16, 2017
___________
Introduced by Sen. AKSHAR -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the real property law, in relation to radon service
professional licensing
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The real property law is amended by adding a new article
2 12-D to read as follows:
3 ARTICLE 12-D
4 RADON SERVICE PROFESSIONAL LICENSING
5 Section 447-a. Short title.
6 447-b. Definitions.
7 447-c. State radon service professional council.
8 447-d. License requirements.
9 447-e. Qualifications for licensure.
10 447-f. License periods, renewals and fees.
11 447-g. Duty of care of radon service professionals.
12 447-h. Suspension and revocation of licenses.
13 447-i. Denial of license; complaints; notice of hearing.
14 447-j. Liability coverage.
15 447-k. Duties of the secretary.
16 447-l. Unlicensed activities.
17 447-m. Violations and penalties for unlicensed activities.
18 447-n. Judicial review.
19 447-o. Severability.
20 § 447-a. Short title. This article shall be known and may be cited as
21 the "radon service professional licensing act".
22 § 447-b. Definitions. As used in this article, the following terms
23 shall have the following meanings:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11983-05-7
S. 6851 2
1 1. "Council" means the state radon service council established pursu-
2 ant to the provisions of section four hundred forty-seven-c of this
3 article.
4 2. "Client" means any person who engages or seeks to engage the
5 services of a radon service professional for the purpose of obtaining a
6 radon measurement test or radon mitigation service of a property.
7 3. "Department" means the department of state.
8 4. "Radon service professional" means a person licensed pursuant to
9 the provisions of this article.
10 5. "Radon measurement professional" means a radon service professional
11 who deploys and retrieves radon detectors and provides a report of the
12 associated measurement results that are generated by a radon analytical
13 laboratory.
14 6. "Radon mitigation professional" means a radon service professional
15 who interprets radon test results and determines the most effective way
16 to manage radon concentrations within buildings. Management plans may
17 include requirements for further diagnostic testing and/or the design
18 and installation of radon mitigation systems.
19 7. "Radon measurement test" means a test performed or procedures used
20 to determine if radon mitigation is necessary in order to protect
21 current and future occupants.
22 8. "Radon mitigation service" means application of materials and/or
23 installation of systems and materials to reduce radon concentrations in
24 the indoor atmosphere or prevent entry of radon into the indoor atmos-
25 phere.
26 9. "Radon analytical laboratory" means a radiological laboratory that
27 analyzes samples for the presence of radon and/or radon decay in
28 products in a facility separate from the location in which the sample
29 was taken using stationary detection equipment.
30 10. "Person" means an individual, firm, company, partnership, limited
31 liability company, or corporation.
32 11. "Residential building" means a structure consisting of one to four
33 dwelling units and their garages and carport but shall not include any
34 such structure newly constructed or not previously occupied as a dwell-
35 ing unit.
36 12. "Secretary" means the secretary of the department of state.
37 § 447-c. State radon service professional council. 1. There is hereby
38 established a state radon service professional council within the
39 department. The council shall consist of the secretary or the secre-
40 tary's designee and six additional members who are residents of the
41 state, of whom four shall be persons licensed and actively engaged in
42 the business of professional radon services. The four radon service
43 professionals shall include two individuals who have specialized in
44 radon measurement services and two who specialized in radon mitigation
45 services in the state of New York for at least five years immediately
46 preceding their appointment. The remaining two members shall be consum-
47 ers who are the owners and principal residents of a building in the
48 state of New York. Appointments shall reflect the geographical diversity
49 of the state.
50 2. For a period of one year after the effective date of this section,
51 and notwithstanding any other provisions of this section to the contra-
52 ry, the first radon service professionals appointed as members of the
53 committee shall not be required, at the time of their first appointment,
54 to be licensed to practice radon professional services, provided that
55 such members be licensed pursuant to this article within one year of
56 appointment.
S. 6851 3
1 3. The governor shall appoint each member of the council for a term of
2 three years except that of the members first appointed, two shall serve
3 for terms of three years, two shall serve for terms of two years and two
4 shall serve for a term of one year. The governor shall appoint two radon
5 service professionals and one consumer upon the recommendation of the
6 temporary president of the senate and two radon service professionals
7 and one consumer upon the recommendation of the speaker of the assembly.
8 Each member shall hold office until his or her successor has been quali-
9 fied. Any vacancy in the membership of the council shall be filled for
10 the unexpired term in the manner provided for the original appointment.
11 No member of the council may serve more than two successive terms in
12 addition to any unexpired term to which he or she has been appointed.
13 4. Members of the council shall receive no compensation but shall be
14 reimbursed for their actual and necessary expenses and provided with
15 office and meeting facilities and personnel required for the proper
16 conduct of the council's business.
17 5. The council shall annually elect from among its members a chair and
18 vice-chair and may appoint a secretary, who need not be a member of the
19 council. The council shall meet at least twice a year and may hold addi-
20 tional meetings as necessary to discharge its duties.
21 6. The role of the council shall be advisory. The council shall advise
22 the secretary in the administration and enforcement of the provisions of
23 this article and recommend to the secretary regulations to implement the
24 provisions of this article including but not limited to:
25 (a) standards for training including approval of the course of study
26 and examination required for licensure of radon service professionals;
27 (b) requirements and standards for continuing education of radon
28 service professionals;
29 (c) a code of ethics and standards of practice for licensed radon
30 service professionals which shall be subject to public notice and
31 comment prior to a council recommendation to the secretary. The stand-
32 ards of practice shall not require a reporting format or limit informa-
33 tion which licensees are authorized to provide a client pursuant to this
34 article; and
35 (d) publicly adopt and reference radon professional standards
36 published by the American National Standards Institute, or other accred-
37 ited consensus national standards developers, and certification criteria
38 or policies and exams established by either the National Radon Profi-
39 ciency Program or the National Radon Safety Board or any radon certif-
40 ication agency recognized by the United States Environmental Protection
41 Agency.
42 Nothing in this section shall be deemed to supersede any established
43 authority, duty and power established by local law, state law or regu-
44 lation or otherwise granted to any agency, body or entity.
45 § 447-d. License requirements. No person shall conduct or represent
46 that he or she has the ability to conduct radon professional services
47 for compensation unless such person is licensed as a radon service
48 professional pursuant to this article or a person providing radon
49 professional services for the purpose of meeting the requirements of
50 four hundred forty-seven-e of this article to qualify for licensure as a
51 radon service professional.
52 § 447-e. Qualifications for licensure. 1. An applicant for a license
53 as a radon service professional shall:
54 (a) have successfully completed high school or its equivalent;
55 (b) have successfully completed a course of study approved by the
56 secretary, of not less than sixteen hours for radon measurement profes-
S. 6851 4
1 sionals and forty hours for radon mitigation professionals. Such hours
2 for radon mitigation professionals shall be composed of sixteen hours of
3 measurement testing and twenty-four hours of mitigation training;
4 (c) have passed an approved national radon certification program,
5 residential radon measurement provider exam or residential radon miti-
6 gation provider exam. An applicant who has passed an existing nationally
7 recognized examination, as approved by the secretary, prior to the
8 effective date of this article shall be in compliance with this para-
9 graph; and
10 (d) pay the applicable fees.
11 2. The provisions of this section shall not apply to a person perform-
12 ing radon professional services pursuant to paragraph (b) of subdivision
13 one of this section for the purpose of meeting requirements for a radon
14 service professional license.
15 3. Upon submission of an application and payment of the application
16 and licensure fee to the secretary, the secretary shall issue a radon
17 service professional's license to a person who holds a valid license as
18 a radon service professional issued by another state or possession of
19 the United States or the District of Columbia which has standards
20 substantially equivalent to those of this state as determined by the
21 secretary.
22 § 447-f. License periods, renewals and fees. 1. Radon service profes-
23 sional licenses and renewals thereof shall be issued for a period of two
24 years, except that the secretary may, in order to stagger the expiration
25 date thereof, provide that those licenses first issued or renewed after
26 the effective date of this section shall expire or become void on a date
27 fixed by the secretary, not sooner than six months nor later than twen-
28 ty-nine months after the date of issue. No renewal of a license shall be
29 issued unless the applicant has successfully completed a course of
30 continuing education approved by the secretary.
31 2. The secretary shall collect a fee of seven hundred fifty dollars
32 for the first application for a license and the license as a radon
33 service professional. The secretary shall collect a fee of one thousand
34 dollars to renew a radon service professional license. All fees and any
35 fines imposed by the secretary pursuant to this article shall be depos-
36 ited in the business and licensing services account established pursuant
37 to section ninety-seven-y of the state finance law.
38 § 447-g. Duty of care of radon service professionals. 1. Every radon
39 service professional shall comply with the provisions of this article,
40 and the rules, regulations and standards adopted pursuant thereto. The
41 duty of every radon service professional shall be to the client.
42 2. Every radon service professional shall display his or her license
43 number and status as a licensed radon service professional on every
44 report and in all advertising. Upon request of any client or interested
45 party to a real estate transaction, every radon service professional
46 shall provide such proof of licensure pursuant to this article as shall
47 be issued by the secretary for such purpose.
48 3. No later than ten business days after the completion of a radon
49 measurement on behalf of a client, each radon service professional shall
50 provide such client with a written report of the findings of such meas-
51 urement. Every such written report and the information contained therein
52 shall be deemed confidential and shall not be disclosed without the
53 express consent of the client; provided, however, that department repre-
54 sentatives, conducting an investigation or other official business for
55 the purpose of enforcing this article, shall have access to such reports
56 and the information contained therein.
S. 6851 5
1 § 447-h. Suspension and revocation of licenses. 1. The secretary may
2 refuse to grant or may suspend or revoke a radon service professional
3 license, and may impose a civil penalty not to exceed one thousand
4 dollars per violation, upon proof to the satisfaction of the secretary
5 that the holder thereof has:
6 (a) Violated the provisions of subdivision four of section four
7 hundred forty-seven-g of this article;
8 (b) Disclosed any information concerning the results of the radon test
9 without the approval of the client or the client's representatives;
10 (c) Accepted compensation from more than one interested party for the
11 same service without the consent of all interested parties;
12 (d) Accepted commissions or allowances, directly or indirectly, from
13 other parties dealing with the client in connection with work for which
14 the licensee is responsible;
15 (e) Failed to disclose promptly to a client information about any
16 business interest of the licensee which may reasonably affect the client
17 in connection with the radon service report;
18 (f) Been convicted of a felony involving fraud, theft, perjury or
19 bribery;
20 (g) Failed to pay a fine or restitution ordered by the secretary with-
21 in a reasonable time; or
22 (h) Made a willfully false statement in the context of radon service
23 report or an application for licensure pursuant to this article.
24 2. Whenever a license is revoked pursuant to this section, such
25 license shall not be reinstated or reissued until after the expiration
26 of a period of five years from the date of such revocation.
27 § 447-i. Denial of license; complaints; notice of hearing. The depart-
28 ment shall, before making a final determination to deny an application
29 for a license, revoke a license, suspend a license, issue a reprimand,
30 or impose a civil penalty for violation of this article, notify the
31 applicant or licensee in writing of the reasons for such proposed
32 denial, revocation, suspension, reprimand, or imposition of a civil
33 penalty and afford the applicant or licensee an opportunity to be heard
34 in person or by counsel. Such notification shall be served personally
35 or by certified mail or in any manner authorized by the civil practice
36 law and rules for service of a summons. If a hearing is requested, such
37 hearing shall be held at such time and place as the department shall
38 prescribe and shall be conducted in accordance with the provisions of
39 the state administrative procedure act. If the applicant or licensee
40 fails to make a written request for a hearing within thirty days after
41 receipt of such notification, then the notification shall become the
42 final determination of the department. The department, acting by such
43 officer or person in the department as the secretary may designate,
44 shall have the power to subpoena and bring before the officer or person
45 so designated any person in this state and administer an oath to and
46 take testimony of any person or cause his or her deposition to be taken.
47 A subpoena issued under this section shall be regulated by the civil
48 practice law and rules. If, after such hearing, the license is denied,
49 revoked, or suspended, a reprimand is issued, or a civil penalty is
50 imposed, written notice of such determination shall be served upon the
51 applicant or licensee personally or by certified mail or in any manner
52 authorized by the civil practice law and rules for the service of a
53 summons.
54 § 447-j. Liability coverage. 1. Every licensed radon service profes-
55 sional who is engaged in radon professional services shall secure, main-
56 tain, and file with the secretary proof of a certificate of liability
S. 6851 6
1 coverage, which terms and conditions shall be determined by the secre-
2 tary.
3 2. Every proof of liability coverage required to be filed with the
4 secretary shall provide that cancellation or nonrenewal of the policy
5 shall not be effective unless and until at least ten days' notice of
6 intention to cancel or nonrenew has been received in writing by the
7 secretary.
8 § 447-k. Duties of the secretary. The secretary shall establish such
9 rules and regulations as shall be necessary to implement the provisions
10 of this article.
11 § 447-l. Unlicensed activities. The secretary may issue an order
12 requiring restitution and/or directing the cessation of any activity for
13 which a license is required by this article upon a determination that a
14 person has engaged in or followed the business or occupation of, or held
15 himself, herself, or itself out as or acted as, temporarily or other-
16 wise, a radon service professional within this state without a valid
17 license. The department shall, before making such determination and
18 order, give such person notice as provided in section four hundred
19 forty-seven-i of this article and afford such person an opportunity to
20 be heard in person or by counsel in reference thereto in an adjudicatory
21 proceeding held pursuant to this article.
22 § 447-m. Violations and penalties for unlicensed activities. Any
23 person subject to an administrative order issued by the secretary
24 directing the cessation of any activity for which a license is required
25 and/or suspending or revoking a license previously issued who directly
26 or indirectly engages in the business of radon professional services,
27 holds himself, herself, or itself out to the public as being able to
28 engage in the business of radon professional services without a license
29 therefor, engages in the business of home inspection after having his or
30 her license revoked or suspended, or without a license to engage in the
31 business of radon professional services directly or indirectly employs,
32 permits or authorizes an unlicensed person to engage in the business of
33 radon professional services shall be guilty of a misdemeanor and upon
34 the first conviction thereof shall be sentenced to a fine of not more
35 than one thousand dollars; upon a second or subsequent conviction there-
36 of shall be sentenced to a fine of not less than one thousand dollars
37 nor more than five thousand dollars. Each violation of this article
38 shall be deemed a separate offense.
39 § 447-n. Judicial review. The action of the secretary in suspending,
40 revoking, or refusing to issue or renew a license, or imposing an order
41 directing the cessation of unlicensed activity or imposing a fine or
42 reprimand may be reviewed by the supreme court in the manner provided by
43 article seventy-eight of the civil practice law and rules.
44 § 447-o. Severability. In the event it is determined by a court of
45 competent jurisdiction that any phrase, clause, part, subdivision, para-
46 graph or section, or any of the provisions of this article, is unconsti-
47 tutional or otherwise invalid or inoperative, such determination shall
48 not affect the validity or effect of the remaining provisions of this
49 article.
50 § 2. This act shall take effect immediately.
