NY State Assembly Bill 2009-A11158

Assembly Bill A11158

2009-2010 Legislative Session

Relates to the temporary suspension of a repair shop registration or license and the jurisdiction of repair shop appeals; repealer

download bill text pdf

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 20, 2010	referred to transportation

2009-A11158 (ACTIVE) - Details

See Senate Version of this Bill:: S7438
Current Committee:: Assembly Transportation
Law Section:: Vehicle and Traffic Law
Laws Affected:: Amd §§261, 398-f & 398-i, rpld §398-f subs 2 & 4, V & T L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A2739
2013-2014: A3587
2015-2016: A513
2017-2018: A988
2019-2020: A2155

2009-A11158 (ACTIVE) - Summary

Relates to the temporary suspension of a repair shop registration or license and the jurisdiction of repair shop appeals.

2009-A11158 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A11158

TITLE OF BILL:  An act to amend the vehicle and traffic law, in relation
to  the  temporary  suspension of a repair shop registration or license,
jurisdiction of repair shop appeals, and to repeal subdivisions 2 and  4
of section 398-f of such law relating thereto

PURPOSE:

This  bill  would:  1)  enhance  consumer  protection by authorizing the
Department of Motor Vehicles (DMV) to temporarily suspend a repair  shop
registration; and 2) streamline the repair shop appeals process by elim-
inating  the  specialized  Repair  Shop  Review Board and allowing DMV's
Administrative Appeals Board to hear these cases.

SUMMARY OF PROVISIONS:

Section 1 of this bill would amend  Vehicle  and  Traffic  Law  (VTL)
261(1) by removing the reference to the Repair Shop Review Board.

Section  2 of this bill would amend VTL § 398-f(1)(b) to provide for the
temporary suspension of the registration of a  repair  shop  pending  an
administrative hearing, investigation or prosecution.

Section  3  of  this bill would repeal VTL § 398-f(2), which establishes
the Repair Shop Review Board.

Section 4 of this bill would  amend  VTL  §  398-f(3)  to  provide  that
appeals of decisions related to repair shop registrations would be heard
by the Administrative Appeals Board pursuant to Article 3-A of the Vehi-
cle  and  Traffic Law; conforming amendments would be made to paragraphs
(b) and (c) of such subdivision.

Section 5 of this bill would repeal VTL § 398-f(4), as it  duplicates  a
similar provision in Article 3-A.

Section  6 of this bill makes conforming amendments to VTL § 398-i(4) in
relation to the Repair Shop Review Board.

Section 7 of this bill provides for an immediate effective date,  except
that sections 1, 3, 4, 5 and 6 would take effect 30 days after enactment
and would apply to appeals pending before the Repair Shop Review Board.

EXISTING LAW

Currently,  DMV  does  not  have  the authority to suspend a repair shop
registration pending a hearing, investigation or prosecution. The Repair
Shop Review Board, established in VTL §  398-f(2),  reviews  all  repair
shop  related appeals, while all other appeals are handled by the Admin-
istrative Appeals Board.

PRIOR LEGISLATIVE HISTORY:

Bill sections 1, 3, 4, 5 and 6 are new proposals.  Bill  section  2  was
introduced in 2008 as S.7383-A but did not pass.

STATEMENT IN SUPPORT

This  bill  would implement two measures to enhance consumer protection.
First, this bill would address an anomaly in the law whereby  all  busi-
nesses  regulated by DMV's Vehicle Safety Unit, except for repair shops,
may have their registration or  license  suspended  pending  a  hearing,
investigation  or  prosecution.  As a result of this loophole, DMV lacks
the authority to temporarily suspend a repair shop's license, even  when
the shop is engaged in activity that may defraud or endanger the public.
This  bill  would fix this loophole and allow DMV to temporarily suspend
repair shop licenses.

Second, this bill would streamline the appeals  process.  Under  current
law,  the Administrative Appeals Board determines all appeals except for
repair shop cases. Those cases are heard by a separate body: the  Repair
Shop  Review Board. This bifurcation makes little sense because compared
to the number of appeals handled by  the  Administrative  Appeals  Board
(628  in 2008); the number of repair shop appeals is minimal (13 in 2008
and 25 in 2007). This small number of cases could be easily absorbed  by
the  Administrative  Appeals Board. In addition, whereas the Administra-
tive Appeals Board meets monthly, the Repair Shop Review Board has  only
one  meeting  a  year  and  it has become increasingly difficult to find
qualified people who are willing to serve on the Board.

Not only would eliminating the Repair Shop Review Board make the appeals
process more efficient, but it would also reduce the time it  takes  for
appeals to be decided and provide better response to consumers. Current-
ly, consumers who file complaints against a repair shop may have to wait
months  for a decision, which unnecessarily delays possible restitution.
This proposal should ensure that cases are decided more  quickly,  which
would benefit both repair shop owners and consumers.

BUDGET IMPLICATIONS:

This bill would not have any impact upon the State budget.

EFFECTIVE DATE:

The  bill  would take effect immediately, except that sections 1, 3,4, 5
and 6 would take effect 30 days  after  enactment  and  would  apply  to
appeals pending before the Repair Shop Review Board.

2009-A11158 (ACTIVE) - Bill Text download pdf

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

                                  11158

                          I N  A S S E M B L Y

                              May 20, 2010
                               ___________

Introduced  by  M. of A. GANTT -- (at request of the Department of Motor
  Vehicles) -- read once and referred to the Committee on Transportation

AN ACT to amend the vehicle and traffic law, in relation to  the  tempo-
  rary suspension of a repair shop registration or license, jurisdiction
  of  repair shop appeals, and to repeal subdivisions 2 and 4 of section
  398-f of such law relating thereto

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

  Section  1.  Subdivision  1  of section 261 of the vehicle and traffic
law, as amended by chapter 517 of the laws of 2007, is amended  to  read
as follows:
  1.  Right  of  appeal.  Whenever a license, certificate, permit or any
privilege is denied, suspended or revoked by the  commissioner  pursuant
to  this chapter, except where such action is based upon a conviction as
a result of which such action is required by statute or is based upon  a
determination  rendered  under  the  provisions of article two-A of [the
vehicle and traffic law] THIS CHAPTER, the  holder  thereof  may  appeal
such  determination  pursuant to the provisions of this article and such
regulations as may be promulgated  by  the  commissioner.  In  addition,
following  an adjudicatory proceeding conducted pursuant to section four
hundred seventy-one-a of this chapter, an aggrieved party may appeal the
commissioner's decision pursuant to the provisions of this  article  and
such  regulations  as may be promulgated by the commissioner.  [Notwith-
standing the provisions of this subdivision, appeals from determinations
made pursuant to article twelve-A of this chapter shall be  governed  in
accordance with the provisions of that article.]
  S  2.  Paragraph  (b) of subdivision 1 of section 398-f of the vehicle
and traffic law, as added by chapter 641 of the laws of 1975, is amended
to read as follows:
  (b)  No certificate of registration shall  be  suspended  or  revoked,
penalty imposed or determination of gross negligence or gross overcharg-
ing made as provided for pursuant to paragraph (h) of subdivision one of
section  three hundred ninety-eight-e of this article, until such regis-
trant shall have been given the opportunity to be  heard,  upon  written

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

                                                           LBD15768-01-0

A. 11158                            2

notice  to  the registrant, before an officer or employee of the depart-
ment designated for such purpose by the commissioner, provided, however,
that where a notice of hearing is mailed to a registrant at the  address
shown  in  the  records  of  the department and such registrant fails to
attend such hearing, the  commissioner  may  suspend  such  registration
pending  the  [registrants]  REGISTRANT'S  attendance  at  such hearing.
Requests for adjournment of such hearings shall be granted in accordance
with regulations promulgated by the commissioner.  A suspension  pending
attendance  at  a  hearing  shall not be appealable.  PROVIDED, HOWEVER,
THAT A CERTIFICATE OF REGISTRATION MAY  BE  TEMPORARILY  SUSPENDED  UPON
WRITTEN  NOTICE  OF  TEMPORARY SUSPENSION DELIVERED BY CERTIFIED MAIL TO
THE REGISTRANT PENDING ANY PROSECUTION, INVESTIGATION OR HEARING INVOLV-
ING AN ALLEGATION OF ANY CONDUCT  ON  THE  PART  OF  THE  REGISTRANT  IN
VIOLATION OF THE PROVISIONS OF PARAGRAPH (G), (H), (J), OR (K) OF SUBDI-
VISION  ONE OF SECTION THREE HUNDRED NINETY-EIGHT-E OF THIS ARTICLE. THE
WRITTEN NOTICE OF TEMPORARY SUSPENSION SHALL PROVIDE THAT THE  TEMPORARY
SUSPENSION  IS  EFFECTIVE SEVENTY-TWO HOURS AFTER MAILING OF SUCH NOTICE
AND THAT A HEARING BE SCHEDULED WITHIN TEN DAYS AFTER THE EFFECTIVE DATE
OF THE TEMPORARY SUSPENSION.
  S 3. Subdivision 2 of section 398-f of the vehicle and traffic law  is
REPEALED.
  S 4. Subdivision 3 of section 398-f of the vehicle and traffic law, as
added by chapter 641 of the laws of 1975, paragraph (a) and subparagraph
2  of  paragraph  (b) as amended by chapter 448 of the laws of 1995, and
subparagraphs 1 and 5 of paragraph (b) as amended by chapter 450 of  the
laws of 1996, is amended to read as follows:
  3.    Appeals.  (a) The [review] APPEALS board ESTABLISHED PURSUANT TO
ARTICLE THREE-A OF THIS CHAPTER will review and  determine  all  appeals
filed  pursuant  to this article.   Such determination may be to affirm,
reverse or modify the initial determination of the hearing  officer,  or
to  remand the case for a further hearing to determine additional facts.
Any review by such board shall be based solely on the record upon  which
the  initial  determination is made and upon any written brief which may
be submitted by or on behalf of the applicant or registrant.
  (b) (1)   Whenever a  certificate  of  registration  is  suspended  or
revoked,  an  application for such registration denied, determination of
gross negligence or gross overcharging made, the sealing of  a  premises
ordered or penalty imposed by the commissioner pursuant to this article,
except where such action is required by statute based upon a conviction,
the  registrant,  applicant,  or  owner  of the premises as such term is
defined in paragraph (a) of subdivision five-a of section three  hundred
ninety-eight-i of this article may appeal such determination pursuant to
the  provisions of [this] article THREE-A OF THIS CHAPTER and such regu-
lations as may be promulgated by the commissioner.
  (2) [No appeal shall be reviewed unless it is submitted  within  sixty
days  after  written notice of the determination appealed from is mailed
to the registrant or applicant.
  (3)  Any person desiring to appeal pursuant to this article  shall  do
so  in  a  form and manner as provided by regulations promulgated by the
commissioner. The transcript of any hearing will only be reviewed if  it
is  submitted  by the appellant who shall bear the expense of furnishing
such transcript.
  (4)  The fee for filing an appeal shall be ten  dollars.    No  appeal
shall  be  deemed  filed  or  submitted unless any required fee has been
paid.

A. 11158                            3

  (5)] The submission of a written request to file such an appeal  shall
stay  the operation of the initial determination until after a review is
had and a determination has been made; provided, however,  that  failure
to  timely  submit  such  appeal  and comply with the provisions of this
subdivision  shall  remove  the  stay  imposed by this paragraph.   Such
review shall be made and decided as expeditiously as possible;  provided
that  an appeal of an order directing the sealing of the premises pursu-
ant to subdivision five-a of section  three  hundred  ninety-eight-i  of
this  article  shall, to the extent possible, be given priority over all
other appeals filed pursuant to this article.
  (c)  Whenever the same facts give rise  to  a  hearing  involving  any
other  license  or  registration  issued by the commissioner, a combined
hearing may be held.  [If the registrant appeals only  from  a  determi-
nation  made  with  respect to his repair shop registration, he shall be
entitled to a review as provided in subdivision  one  of  this  section;
however,  if  he  appeals  from any determination or determinations made
with respect to any other license or registration, as well as a determi-
nation with respect to his repair shop registration, the appeals  proce-
dure established in article three-A of this chapter shall be followed in
lieu of the procedure established in subdivision three of this section.]
  S  5. Subdivision 4 of section 398-f of the vehicle and traffic law is
REPEALED.
  S 6. Paragraph (a) of subdivision 4 of section 398-i  of  the  vehicle
and traffic law, as added by chapter 891 of the laws of 1977, is amended
to read as follows:
  (a) If it is determined that a person has operated a repair shop with-
out being registered as required by this article, such determination may
be  appealed  to  the  [review]  APPEALS  board  established pursuant to
[section three hundred ninety-eight-f of  this  chapter.  The  procedure
established in such section shall apply to such appeals] ARTICLE THREE-A
OF  THIS CHAPTER provided that no appeal shall be accepted or determined
by the [review] APPEALS board unless the civil penalty assessed  against
such  person  has  been  paid  as  prescribed in subdivision two of this
section.
  S 7. This act shall take effect immediately, except that sections one,
three, four, five, and six shall take effect on the thirtieth day  after
it shall have become a law and shall apply to appeals pending before the
repair shop review board.

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