senate Bill S682

Permits the sealing of records of certain nonviolent misdemeanor or nonsexual misdemeanor criminal offenses

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 05 / Jan / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • REFERRED TO CODES

Summary

Permits the sealing of records of certain nonviolent misdemeanor or non-sexual misdemeanor criminal offenses; defines the term "eligible misdemeanor"; excludes certain misdemeanor offenses as eligible misdemeanors for the purposes of conditional sealing; lists certain eligibility requirements for sealing; provides an order granting sealing under this section shall restore the individual concerned, in the contemplation of the laws, to the status such individual occupied before the arrest or institution of criminal proceedings for the crime that was the subject of the sealing.

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Bill Details

See Assembly Version of this Bill:
A1139
Versions:
S682
Legislative Cycle:
2011-2012
Current Committee:
Senate Codes
Law Section:
Criminal Procedure Law
Laws Affected:
Add §160.65, CP L; amd §296, Exec L
Versions Introduced in 2009-2010 Legislative Cycle:
S1708B, A6065, A6065B, S1708B

Sponsor Memo

BILL NUMBER:S682

TITLE OF BILL:
An act
to amend the criminal procedure law
and the executive law,
in relation to permitting the
sealing of records of certain nonviolent misdemeanor or non-sexual
misdemeanor
offenses

PURPOSE:
To allow the sealing of certain misdemeanor offenses,

SUMMARY OF PROVISIONS:
Section 1 of the bill titles the new provision, the Second Chance for
Ex-Offenders Act.

Section 2 of the bill: excludes certain misdemeanor offenses as
eligible misdemeanors for the purposes of conditional sealing; lists
certain sealing eligibility requirements; describes the court's
sealing process;
and lists the agencies and individuals which will have access to the
sealed misdemeanor records.

Section 3 of the bill amends the executive law to include as an
unlawful discriminatory practice, making an inquiry about any arrest
or criminal accusation which is sealed under the Second Chance for
Ex-Offenders Act.

JUSTIFICATION:
A misdemeanor offense can follow a person for the rest of his or her
life. Even if he or she has fully reformed and committed no further
criminal acts the record still exists and often forms the basis for
discrimination in employment or other areas. This bill would allow a
person who has been convicted of certain misdemeanor offenses to
apply to the Court to have their record sealed. The bill also
authorizes unsealing the sealed record if the individual is later
convicted of a subsequent offense.

EXISTING LAW:
While there is currently a process in place to seal controlled
substance felonies and misdemeanors, there exists no process for the
sealing of non-controlled substance misdemeanors.

LEGISLATIVE HISTORY:
S.1708B of 2009
02/05/09 REFERRED TO CODES
01/06/10 REFERRED TO CODES
03/24/10 AMEND (T) AND RECOMMIT TO CODES
03/24/10 PRINT NUMBER 1708A
06/04/10 AMEND AND RECOMMIT TO CODES
06/04/10 PRINT NUMBER 1708B

FISCAL IMPLICATIONS:
The state can anticipate additional revenue if this bill becomes law.


EFFECTIVE DATE:
This act shall take effect one hundred eightieth day after it shall
have become a law and shall apply to all convictions occurring prior
to, on, and after the effective date.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   682

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law and  the  executive  law,  in
  relation  to  permitting  the sealing of records of certain nonviolent
  misdemeanor or non-sexual misdemeanor offenses

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  This  act  shall be known and may be cited as the "second
chance for ex-offenders act".
  S 2. The criminal procedure law is amended by  adding  a  new  section
160.65 to read as follows:
S 160.65 CONDITIONAL SEALING OF CERTAIN MISDEMEANOR OFFENSES.
  1.  FOR  THE PURPOSES OF THIS SECTION, THE TERM "ELIGIBLE MISDEMEANOR"
SHALL BE A MISDEMEANOR OFFENSE DEFINED IN THE PENAL LAW,  PROVIDED  THAT
AN  ELIGIBLE MISDEMEANOR SHALL NOT MEAN A MISDEMEANOR OFFENSE DEFINED IN
ARTICLE ONE HUNDRED TWENTY, ONE HUNDRED THIRTY, ONE HUNDRED THIRTY-FIVE,
ONE HUNDRED FIFTY, TWO HUNDRED THIRTY-FIVE, TWO HUNDRED FORTY-FIVE,  TWO
HUNDRED  SIXTY, TWO HUNDRED SIXTY-THREE, TWO HUNDRED SIXTY-FIVE OR ARTI-
CLE FOUR HUNDRED OF THE PENAL LAW. AN  ELIGIBLE  MISDEMEANOR  SHALL  NOT
INCLUDE  ANY  ONE OR MORE OF THE FOLLOWING: KILLING OR INJURING A POLICE
ANIMAL AS DEFINED IN SECTION 195.06, HARMING AN ANIMAL TRAINED TO AID  A
PERSON  WITH  A  DISABILITY  IN  THE SECOND DEGREE AS DEFINED IN SECTION
195.11, HARMING AN ANIMAL TRAINED TO AID A PERSON WITH A  DISABILITY  IN
THE FIRST DEGREE AS DEFINED IN SECTION 195.12, PROMOTING PROSTITUTION IN
THE  FOURTH  DEGREE  AS  DEFINED  IN  SECTION 230.20, RIOT IN THE SECOND
DEGREE AS DEFINED IN SECTION 240.05, INCITING  TO  RIOT  AS  DEFINED  IN
SECTION 240.08, AGGRAVATED HARASSMENT IN THE SECOND DEGREE AS DEFINED IN
SUBDIVISION  THREE  OF SECTION 240.30, CRIMINAL INTERFERENCE WITH HEALTH
CARE SERVICES OR RELIGIOUS WORSHIP IN THE SECOND DEGREE  AS  DEFINED  IN
SECTION 240.70, HARMING A SERVICE ANIMAL IN THE SECOND DEGREE AS DEFINED

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03673-01-1

S. 682                              2

IN  SECTION  242.10,  DISSEMINATION OF AN UNLAWFUL SURVEILLANCE IMAGE IN
THE SECOND DEGREE AS DEFINED IN SECTION 250.55, OR ANY SPECIFIED OFFENSE
SUBJECT TO THE PROVISION RELATING TO HATE CRIMES AS DEFINED  IN  SECTION
485.05 OF THE PENAL LAW. ADDITIONALLY, AN ELIGIBLE MISDEMEANOR SHALL NOT
INCLUDE  CRIMINAL SOLICITATION, CONSPIRACY, ATTEMPT, OR CRIMINAL FACILI-
TATION TO COMMIT ANY VIOLENT FELONY OFFENSE AS DEFINED IN SECTION  70.02
OF  THE PENAL LAW, OR ANY SEX OFFENSE AS DEFINED UNDER SUBSECTION TWO OF
SECTION ONE HUNDRED SIXTY-EIGHT-A OF THE CORRECTION LAW.
  2. A PERSON HAVING A CONVICTION FOR NO MORE THAN  THREE  MISDEMEANORS,
WHO  DOES  NOT  STAND CONVICTED OF ANY FELONY, OR WHO IS NOT REQUIRED TO
MAINTAIN REGISTRATION UNDER ARTICLE SIX-C OF  THE  CORRECTION  LAW,  MAY
PETITION  THE COURT TO CONDITIONALLY SEAL UP TO THREE ELIGIBLE MISDEMEA-
NORS WHEN:
  (A) AT LEAST FIVE YEARS HAVE PAST SINCE THE COMPLETION OF  A  SENTENCE
ON AN ELIGIBLE MISDEMEANOR; AND
  (B)  SUCH  PERSON HAS NOT BEEN CONVICTED OF AN OFFENSE DURING THE LAST
FIVE YEARS AND IS NOT THE SUBJECT OF AN UNDISPOSED ARREST.
  3. THE PETITION AUTHORIZED BY THIS SECTION SHALL BE FILED IN THE COURT
OF RECORD THAT LAST IMPOSED A SENTENCE UPON PETITIONER FOR  AN  ELIGIBLE
MISDEMEANOR.  ON  THE  DEFENDANT'S  MOTION, THE COURT MAY ORDER THAT ALL
OFFICIAL RECORDS AND PAPERS RELATING  TO  THE  ARREST,  PROSECUTION  AND
CONVICTION  RECORDS  FOR  NO  MORE  THAN  THREE OF THE DEFENDANT'S PRIOR
ELIGIBLE MISDEMEANORS BE CONDITIONALLY SEALED.  THE COURT MAY ONLY  SEAL
THE  RECORDS  OF  THE  DEFENDANT'S ARRESTS, PROSECUTIONS AND CONVICTIONS
WHEN:
  (A) THE SENTENCING COURT HAS REQUESTED AND RECEIVED FROM THE  DIVISION
OF  CRIMINAL  JUSTICE  SERVICES OR THE FEDERAL BUREAU OF INVESTIGATION A
FINGERPRINT BASED CRIMINAL HISTORY RECORD OF  THE  DEFENDANT,  INCLUDING
ANY  SEALED  OR SUPPRESSED INFORMATION. THE DIVISION OF CRIMINAL JUSTICE
SERVICES SHALL ALSO INCLUDE A CRIMINAL HISTORY REPORT, IF ANY, FROM  THE
FEDERAL  BUREAU OF INVESTIGATION REGARDING ANY CRIMINAL HISTORY INFORMA-
TION THAT OCCURRED  IN  OTHER  JURISDICTIONS.  THE  DIVISION  IS  HEREBY
AUTHORIZED TO RECEIVE SUCH INFORMATION FROM THE FEDERAL BUREAU OF INVES-
TIGATION  FOR  THIS  PURPOSE.  THE PARTIES SHALL BE PERMITTED TO EXAMINE
THESE RECORDS;
  (B) THE DEFENDANT OR COURT HAS IDENTIFIED THE  MISDEMEANOR  CONVICTION
OR CONVICTIONS FOR WHICH RELIEF MAY BE GRANTED;
  (C) THE COURT HAS RECEIVED DOCUMENTATION THAT THE SENTENCES IMPOSED ON
THE  ELIGIBLE MISDEMEANOR CONVICTIONS HAVE BEEN COMPLETED, OR IF NO SUCH
DOCUMENTATION IS  REASONABLY  AVAILABLE,  A  SWORN  AFFIDAVIT  THAT  THE
SENTENCES IMPOSED ON THE PRIOR MISDEMEANORS HAVE BEEN COMPLETED; AND
  (D)  THE COURT HAS NOTIFIED THE DISTRICT ATTORNEY OF EACH JURISDICTION
IN WHICH THE DEFENDANT HAS BEEN CONVICTED OF AN OFFENSE WITH RESPECT  TO
WHICH  SEALING  IS  SOUGHT,  AND  THE COURT OR COURTS OF RECORD FOR SUCH
OFFENSES, THAT THE COURT IS  CONSIDERING  SEALING  THE  RECORDS  OF  THE
DEFENDANT'S ELIGIBLE MISDEMEANOR CONVICTIONS. BOTH THE DISTRICT ATTORNEY
AND  THE  COURT SHALL BE GIVEN A REASONABLE OPPORTUNITY, WHICH SHALL NOT
BE LESS THAN THIRTY DAYS, IN WHICH TO COMMENT AND  SUBMIT  MATERIALS  TO
AID  THE COURT IN MAKING SUCH A DETERMINATION. WHEN THE COURT NOTIFIES A
DISTRICT ATTORNEY OF A SEALING APPLICATION, THE DISTRICT ATTORNEY  SHALL
PROVIDE  NOTICE  TO  THE  VICTIM,  IF ANY, OF THE SEALING APPLICATION BY
MAILING WRITTEN NOTICE TO THE VICTIM'S LAST-KNOWN ADDRESS. FOR  PURPOSES
OF  THIS SECTION "VICTIM" MEANS ANY PERSON WHO HAS SUSTAINED PHYSICAL OR
FINANCIAL INJURY TO PERSON OR TO PROPERTY AS  A  DIRECT  RESULT  OF  THE
MISDEMEANOR CRIME OR MISDEMEANOR CRIMES FOR WHICH SEALING IS APPLIED.

S. 682                              3

  4. AT THE REQUEST OF THE DEFENDANT OR THE DISTRICT ATTORNEY OF A COUN-
TY  IN  WHICH THE DEFENDANT COMMITTED A CRIME THAT IS THE SUBJECT OF THE
SEALING APPLICATION, THE COURT MAY CONDUCT A  HEARING  TO  CONSIDER  AND
REVIEW  ANY RELEVANT EVIDENCE OFFERED BY EITHER PARTY THAT WOULD AID THE
COURT  IN  ITS  DECISION  WHETHER TO SEAL THE RECORDS OF THE DEFENDANT'S
ARRESTS, PROSECUTIONS AND CONVICTIONS.  IN MAKING SUCH A  DETERMINATION,
THE COURT SHALL CONSIDER ANY RELEVANT FACTORS, INCLUDING BUT NOT LIMITED
TO:
  (A)  THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE OR OFFENSES THAT
RESULTED IN THE CONVICTION OR CONVICTIONS;
  (B) THE CHARACTER OF THE DEFENDANT, INCLUDING WHAT STEPS THE PETITION-
ER HAS TAKEN SINCE THE TIME OF THE  OFFENSE  TOWARD  PERSONAL  REHABILI-
TATION,  INCLUDING  TREATMENT,  WORK,  SCHOOL, OR OTHER PERSONAL HISTORY
THAT DEMONSTRATES REHABILITATION;
  (C) THE DEFENDANT'S CRIMINAL HISTORY;
  (D) THE IMPACT OF SEALING THE DEFENDANT'S  RECORDS  UPON  HIS  OR  HER
REHABILITATION  AND  HIS  OR  HER  SUCCESSFUL AND PRODUCTIVE REENTRY AND
REINTEGRATION INTO SOCIETY, AND ON PUBLIC SAFETY; AND
  (E) ANY STATEMENTS MADE BY THE VICTIM OF THE OFFENSE WHERE THERE IS IN
FACT A VICTIM OF THE CRIME.
  5. AFTER A COURT DECLARES ITS WILLINGNESS  TO  GRANT  THE  DEFENDANT'S
REQUEST FOR CONDITIONAL SEALING PURSUANT TO THIS SECTION, BUT BEFORE THE
COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE DEFENDANT SHALL PAY A
MANDATORY CONDITIONAL SEALING FEE. THE MANDATORY CONDITIONAL SEALING FEE
WILL  BE  A  FEE  OF  EIGHTY  DOLLARS, HOWEVER, SUCH FILING FEE SHALL BE
WAIVED IN CASES OF INDIGENCE. THE MANDATORY FILING FEE SHALL BE PAID  TO
THE  CLERK  OF  THE  COURT  OR ADMINISTRATIVE TRIBUNAL THAT RENDERED THE
CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING  COLLECTION
OF THE MANDATORY FILING FEE, THE COLLECTING AUTHORITY IF IT IS AN ADMIN-
ISTRATIVE  TRIBUNAL,  OR A TOWN OR VILLAGE JUSTICE COURT, SHALL THEN PAY
SUCH MONEY TO THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN  THE
STATE  TREASURY  PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE
FINANCE LAW TO THE CREDIT OF THE INDIGENT LEGAL SERVICES FUND.  IF  SUCH
COLLECTING  AUTHORITY IS ANY OTHER COURT OF THE UNIFIED COURT SYSTEM, IT
SHALL, WITHIN SUCH PERIOD, PAY SUCH MONEY ATTRIBUTABLE TO THE  MANDATORY
FILING  FEE  TO  THE  STATE  COMMISSIONER OF TAXATION AND FINANCE TO THE
CREDIT OF THE INDIGENT LEGAL SERVICES FUND ESTABLISHED BY SECTION  NINE-
TY-EIGHT-B OF THE STATE FINANCE LAW.
  6.  WHEN A COURT ORDERS SEALING PURSUANT TO THIS SECTION, ALL OFFICIAL
RECORDS  AND  PAPERS  RELATING  TO  THE   ARRESTS,   PROSECUTIONS,   AND
CONVICTIONS,  INCLUDING  ALL DUPLICATES AND COPIES THEREOF, ON FILE WITH
THE DIVISION OF CRIMINAL JUSTICE SERVICES OR ANY COURT SHALL  BE  SEALED
AND  NOT  MADE  AVAILABLE  TO  ANY  PERSON  OR PUBLIC OR PRIVATE AGENCY;
PROVIDED, HOWEVER, THE DIVISION SHALL  RETAIN  ANY  FINGERPRINTS,  PALM-
PRINTS, PHOTOGRAPHS, OR DIGITAL IMAGES OF THE SAME.
  7.  WHEN  THE COURT ORDERS SEALING PURSUANT TO THIS SECTION, THE CLERK
OF SUCH COURT SHALL IMMEDIATELY NOTIFY THE COMMISSIONER OF THE  DIVISION
OF CRIMINAL JUSTICE SERVICES, AND ANY COURT THAT SENTENCED THE DEFENDANT
FOR  AN  OFFENSE  WHICH  HAS  BEEN  CONDITIONALLY  SEALED, REGARDING THE
RECORDS THAT SHALL BE SEALED PURSUANT TO THIS SECTION.
  8. RECORDS SEALED PURSUANT TO THIS SUBDIVISION SHALL BE MADE AVAILABLE
TO:
  (A) THE DEFENDANT OR THE DEFENDANT'S DESIGNATED AGENT;
  (B) QUALIFIED AGENCIES, AS DEFINED  IN  SUBDIVISION  NINE  OF  SECTION
EIGHT  HUNDRED  THIRTY-FIVE  OF THE EXECUTIVE LAW, AND FEDERAL AND STATE

S. 682                              4

LAW ENFORCEMENT AGENCIES, WHEN ACTING WITHIN  THE  SCOPE  OF  THEIR  LAW
ENFORCEMENT DUTIES;
  (C)  ANY  STATE OR LOCAL OFFICER OR AGENCY WITH RESPONSIBILITY FOR THE
ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE PERSON HAS MADE  APPLICA-
TION FOR SUCH A LICENSE; OR
  (D)  ANY  PROSPECTIVE EMPLOYER OF A POLICE OFFICER OR PEACE OFFICER AS
THOSE TERMS ARE DEFINED IN SUBDIVISIONS THIRTY-THREE AND THIRTY-FOUR  OF
SECTION  1.20 OF THIS CHAPTER, IN RELATION TO AN APPLICATION FOR EMPLOY-
MENT AS A POLICE OFFICER OR PEACE OFFICER; PROVIDED, HOWEVER, THAT EVERY
PERSON WHO IS AN APPLICANT FOR THE POSITION OF POLICE OFFICER  OR  PEACE
OFFICER  SHALL  BE  FURNISHED  WITH A COPY OF ALL RECORDS OBTAINED UNDER
THIS PARAGRAPH AND AFFORDED AN OPPORTUNITY TO MAKE AN EXPLANATION THERE-
TO.
  9. THE COURT SHALL NOT SEAL THE DEFENDANT'S RECORD  PURSUANT  TO  THIS
SECTION WHILE ANY CHARGED OFFENSE IS PENDING.
  10. IF, SUBSEQUENT TO THE SEALING OF RECORDS PURSUANT TO THIS SUBDIVI-
SION,  THE  PERSON WHO IS THE SUBJECT OF SUCH RECORDS IS ARRESTED FOR OR
FORMALLY CHARGED WITH ANY MISDEMEANOR OR FELONY  OFFENSE,  SUCH  RECORDS
SHALL  BE  UNSEALED  IMMEDIATELY AND REMAIN UNSEALED; PROVIDED, HOWEVER,
THAT IF SUCH NEW MISDEMEANOR OR FELONY ARREST RESULTS IN  A  TERMINATION
IN  FAVOR  OF  THE  ACCUSED  AS  DEFINED IN SUBDIVISION THREE OF SECTION
160.50 OF THIS ARTICLE OR BY CONVICTION FOR A  NON-CRIMINAL  OFFENSE  AS
DESCRIBED IN SECTION 160.55 OF THIS ARTICLE, SUCH UNSEALED RECORDS SHALL
BE CONDITIONALLY SEALED PURSUANT TO THIS SECTION.
  S 3. Subdivision 16 of section 296 of the executive law, as separately
amended  by section 3 of part N and section 14 of part AAA of chapter 56
of the laws of 2009, is amended to read as follows:
  16. It shall be an unlawful discriminatory  practice,  unless  specif-
ically required or permitted by statute, for any person, agency, bureau,
corporation or association, including the state and any political subdi-
vision thereof, to make any inquiry about, whether in any form of appli-
cation  or  otherwise,  or  to  act  upon  adversely  to  the individual
involved, any arrest or criminal accusation of such individual not  then
pending  against  that individual which was followed by a termination of
that criminal action or proceeding  in  favor  of  such  individual,  as
defined  in  subdivision two of section 160.50 of the criminal procedure
law, or by a youthful offender adjudication, as defined  in  subdivision
one  of section 720.35 of the criminal procedure law, or by a conviction
for a violation sealed pursuant to section 160.55 of the criminal proce-
dure law or by a conviction which is sealed pursuant to  section  160.58
of the criminal procedure law, OR BY A CONVICTION WHICH IS SEALED PURSU-
ANT  TO SECTION 160.65 OF THE CRIMINAL PROCEDURE LAW, in connection with
the licensing, employment or providing of credit or  insurance  to  such
individual;  provided,  further,  that  no  person  shall be required to
divulge information pertaining to any arrest or criminal  accusation  of
such  individual  not  then  pending  against  that individual which was
followed by a termination of that criminal action or proceeding in favor
of such individual, as defined in subdivision two of section  160.50  of
the  criminal  procedure law, or by a youthful offender adjudication, as
defined in subdivision one of section 720.35 of the  criminal  procedure
law,  or  by  a  conviction  for  a violation sealed pursuant to section
160.55 of the criminal procedure law, or by a conviction which is sealed
pursuant to section 160.58 of  the  criminal  procedure  law,  OR  BY  A
CONVICTION  WHICH  IS  SEALED PURSUANT TO SECTION 160.65 OF THE CRIMINAL
PROCEDURE LAW. The provisions of this subdivision shall not apply to the
licensing activities of governmental bodies in  relation  to  the  regu-

S. 682                              5

lation  of  guns, firearms and other deadly weapons or in relation to an
application for employment as a police officer or peace officer as those
terms are  defined  in  subdivisions  thirty-three  and  thirty-four  of
section  1.20  of  the criminal procedure law; provided further that the
provisions of this subdivision shall not apply  to  an  application  for
employment  or  membership in any law enforcement agency with respect to
any arrest or criminal accusation  which  was  followed  by  a  youthful
offender  adjudication,  as defined in subdivision one of section 720.35
of the criminal procedure law, or by a conviction for a violation sealed
pursuant to section 160.55 of  the  criminal  procedure  law,  or  by  a
conviction  which  is  sealed pursuant to section 160.58 of the criminal
procedure law, OR BY A CONVICTION WHICH IS SEALED  PURSUANT  TO  SECTION
160.65 OF THE CRIMINAL PROCEDURE LAW.
  S 4. This act shall take effect on the one hundred eightieth day after
it  shall have become a law and shall apply to all convictions occurring
prior to, on, and after such date.

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