S T A T E O F N E W Y O R K
________________________________________________________________________
3123
2011-2012 Regular Sessions
I N S E N A T E
February 9, 2011
___________
Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection
AN ACT to amend the general business law, in relation to the registra-
tion of home improvement contractors; and to amend the state finance
law, in relation to establishing the home improvement trust fund
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 770 of the general business law is amended by
adding six new subdivisions 8, 9, 10, 11, 12 and 13 to read as follows:
8. "CERTIFICATE" MEANS A CERTIFICATE OF REGISTRATION ISSUED UNDER THIS
ARTICLE.
9. "BOARD" MEANS THE NEW YORK STATE CONSUMER PROTECTION BOARD.
10. "DIRECTOR" MEANS THE EXECUTIVE DIRECTOR OF THE STATE CONSUMER
PROTECTION BOARD.
11. "FUND" MEANS THE HOME IMPROVEMENT TRUST FUND ESTABLISHED PURSUANT
TO SECTION NINETY-NINE-T OF THE STATE FINANCE LAW.
12. "PRIVATE RESIDENCE" MEANS A SINGLE FAMILY DWELLING, A CONDOMINIUM,
A COOPERATIVE APARTMENT OR A MULTIFAMILY DWELLING CONSISTING OF NOT MORE
THAN TWELVE RENTAL UNITS.
13. "FINAL JUDGMENT" MEANS ANY FINAL JUDGMENT OBTAINED IN A COURT OF
COMPETENT JURISDICTION, FINAL AWARD IN ARBITRATION OR FINAL DISPOSITION
OF A BANKRUPT'S ESTATE.
S 2. The general business law is amended by adding eleven new sections
770-a, 770-b, 770-c, 770-d, 770-e, 770-f, 770-g, 770-h, 770-i, 770-j and
770-k to read as follows:
S 770-A. REGISTRATION REQUIRED. 1. ON OR AFTER MARCH FIRST, TWO THOU-
SAND TWELVE, NO PERSON, FIRM OR CORPORATION SHALL HOLD HIMSELF, HERSELF,
OR ITSELF OUT TO BE A HOME IMPROVEMENT CONTRACTOR IN NEW YORK STATE
WITHOUT FIRST REGISTERING WITH THE BOARD AS PROVIDED IN THIS ARTICLE.
2. THE FOLLOWING PERSONS AND ORGANIZATIONS ARE NOT REQUIRED TO REGIS-
TER AS HOME IMPROVEMENT CONTRACTORS:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08539-01-1
S. 3123 2
(A) THE STATE, MUNICIPALITIES OF THE STATE, OR ANY DEPARTMENT OR AGEN-
CY OF THE STATE OR SUCH MUNICIPALITIES;
(B) THE UNITED STATES OR ANY OF ITS DEPARTMENTS OR AGENCIES; AND
(C) ANY SCHOOL, PUBLIC OR PRIVATE, OFFERING AS PART OF A VOCATIONAL
EDUCATION PROGRAM COURSES AND TRAINING IN ANY ASPECT OF HOME IMPROVE-
MENTS.
S 770-B. INITIAL APPLICATION FOR REGISTRATION. 1. ANY PERSON, FIRM OR
CORPORATION SEEKING A CERTIFICATE OF REGISTRATION AS A HOME IMPROVEMENT
CONTRACTOR SHALL FILE WITH THE BOARD AN APPLICATION FOR REGISTRATION IN
SUCH FORM AND DETAIL AS THE BOARD SHALL PRESCRIBE, INCLUDING THE FOLLOW-
ING:
(A) THE NAME AND RESIDENCE ADDRESS OF THE APPLICANT;
(B) THE BUSINESS NAME, IF OTHER THAN THAT OF THE APPLICANT;
(C) THE PLACE, INCLUDING THE CITY, TOWN OR VILLAGE, WITH THE STREET
AND NUMBER, WHERE THE BUSINESS IS TO BE LOCATED;
(D) THE BUSINESS TELEPHONE OF THE APPLICANT;
(E) THE LENGTH OF TIME THAT THE APPLICANT HAS BEEN A HOME IMPROVEMENT
CONTRACTOR; AND
(F) A SWORN STATEMENT BY THE APPLICANT THAT THE INFORMATION SET FORTH
IN THE APPLICATION IS CURRENT AND ACCURATE.
2. SUCH APPLICATION SHALL INCLUDE A STATEMENT INDICATING WHETHER OR
NOT THE APPLICANT HAS:
(A) BEEN CONVICTED OF ANY CRIME DEFINED IN ARTICLE ONE HUNDRED FIFTY-
FIVE OF THE PENAL LAW OR ARTICLE TWENTY-TWO-A OF THIS CHAPTER OR IS A
DEBTOR ON ANY UNPAID CIVIL JUDGMENT RELATING TO WORK AS A HOME IMPROVE-
MENT CONTRACTOR; AND
(B) AT ANY TIME IN THE PAST BEEN ISSUED A REGISTRATION PURSUANT TO
THIS ARTICLE, AND IF SO, WHETHER SUCH REGISTRATION WAS EVER REVOKED OR
SUSPENDED.
3. EXCEPT AS OTHERWISE PROVIDED IN OR INCONSISTENT WITH THE PROVISIONS
OF THIS ARTICLE, ALL OF THE PROVISIONS OF THE BUSINESS CORPORATION LAW
PERTAINING TO THE STATUTORY DESIGNATION OF THE SECRETARY OF STATE AS
AGENT FOR SERVICE OF PROCESS, THE DESIGNATION OF A REGISTERED AGENT FOR
SERVICE OF PROCESS, THE MANNER OF EFFECTUATION OF SERVICE OF PROCESS,
AND MATTERS INCIDENTAL OR RELATED THERETO SHALL APPLY TO THE REGISTRA-
TION REQUIRED BY THIS ARTICLE WITH SUCH MODIFICATIONS AS MAY BE NECES-
SARY TO ADAPT SUCH LANGUAGE TO THE REGISTRATION REQUIRED BY THIS ARTI-
CLE. SUCH PROVISIONS SHALL APPLY WITH THE SAME FORCE AND EFFECT AS IF
THOSE PROVISIONS HAD BEEN SET FORTH IN FULL IN THIS ARTICLE EXCEPT TO
THE EXTENT THAT ANY PROVISION IS EITHER INCONSISTENT WITH A PROVISION OF
THIS ARTICLE OR NOT RELEVANT TO THE REGISTRATION REQUIRED BY THIS ARTI-
CLE, UNLESS A DIFFERENT MEANING IS CLEARLY REQUIRED.
4. THE BOARD MAY REFUSE TO ISSUE A REGISTRATION TO ANY PERSON WHOM IT
FINDS HAS BEEN CONVICTED OF ANY CRIME DESCRIBED IN PARAGRAPH (A) OF
SUBDIVISION TWO OF THIS SECTION, OR FAILED TO PAY ANY FINAL CIVIL JUDG-
MENT, RELATING TO WORK AS A HOME IMPROVEMENT CONTRACTOR, IF SUCH REFUSAL
WILL, IN ITS JUDGMENT, BEST PROMOTE THE INTERESTS OF THE PEOPLE OF THIS
STATE.
S 770-C. TERMS. A REGISTRATION ISSUED OR RENEWED UNDER THE PROVISIONS
OF THIS ARTICLE SHALL ENTITLE A PERSON TO ACT AS A REGISTERED HOME
IMPROVEMENT CONTRACTOR IN THE STATE OF NEW YORK FOR A PERIOD OF TWO
YEARS FROM THE EFFECTIVE DATE OF THE REGISTRATION.
S 770-D. REGISTRATION RENEWAL. 1. ANY REGISTRATION GRANTED UNDER THIS
ARTICLE MAY BE RENEWED BY THE BOARD UPON APPLICATION AND PAYMENT OF THE
FEE FOR SUCH RENEWAL BY THE HOLDER THEREOF, IN SUCH FORM AS THE BOARD
MAY PRESCRIBE.
S. 3123 3
2. THE BOARD SHALL HAVE THE AUTHORITY TO ASSIGN STAGGERED EXPIRATION
DATES FOR REGISTRATIONS AT THE TIME OF RENEWAL. IF THE ASSIGNED DATE
RESULTS IN A TERM THAT EXCEEDS TWENTY-FOUR MONTHS, THE APPLICANT SHALL
PAY AN ADDITIONAL PRO-RATED ADJUSTMENT TOGETHER WITH THE REGULAR RENEWAL
FEE.
3. THE BOARD MAY REFUSE TO RENEW, OR MAY REVOKE OR SUSPEND, THE REGIS-
TRATION OF ANY HOME IMPROVEMENT CONTRACTOR IF SUCH REFUSAL, SUSPENSION
OR REVOCATION IS REASONABLY NECESSARY TO PROTECT THE INTERESTS OF THE
PEOPLE OF THIS STATE. THE BOARD MAY REINSTATE SUCH REGISTRATION WHERE
SUCH GROUNDS FOR REFUSAL, SUSPENSION, OR REVOCATION NO LONGER EXIST.
S 770-E. FEES. 1. EACH ORIGINAL APPLICATION OR APPLICATION FOR RENEWAL
FOR REGISTRATION AS A HOME IMPROVEMENT CONTRACTOR SHALL BE ACCOMPANIED
BY A FEE OF ONE HUNDRED FIFTY DOLLARS FOR EACH BIENNIAL REGISTRATION
PERIOD.
2. NOTICE IN WRITING IN THE MANNER AND FORM PRESCRIBED BY THE BOARD
SHALL BE GIVEN TO THE BOARD AT ITS OFFICES IN ALBANY WITHIN TEN DAYS OF
CHANGES OF NAME OR ADDRESS BY REGISTERED HOME IMPROVEMENT CONTRACTORS,
EXCEPT THOSE MADE ON A RENEWAL APPLICATION. THE FEE FOR FILING EACH
CHANGE OF NAME OR ADDRESS NOTICE SHALL BE TEN DOLLARS.
3. IN THE CASE OF LOSS, DESTRUCTION OR DAMAGE, THE BOARD MAY, UPON
SUBMISSION OF A REQUEST IN SUCH FORM AND MANNER AS THE BOARD MAY
PRESCRIBE, ISSUE A DUPLICATE REGISTRATION UPON PAYMENT OF A FEE OF TEN
DOLLARS.
4. THE FEES PROVIDED FOR BY THIS SECTION SHALL NOT BE REFUNDABLE.
S 770-F. PRACTICES OF REGISTRANTS. 1. EACH HOME IMPROVEMENT CONTRACTOR
ENGAGED IN MAKING HOME IMPROVEMENT CONTRACTS SHALL EXHIBIT HIS, HER, OR
ITS CERTIFICATE UPON THE REQUEST OF ANY INTERESTED PARTY.
2. NO PERSON, FIRM OR CORPORATION SHALL:
(A) PRESENT OR ATTEMPT TO PRESENT, AS HIS, HER, OR ITS OWN, THE REGIS-
TRATION OF ANOTHER;
(B) KNOWINGLY GIVE FALSE EVIDENCE OF A MATERIAL NATURE TO THE BOARD
FOR THE PURPOSE OF PROCURING A REGISTRATION;
(C) FALSELY REPRESENT HIMSELF, HERSELF, OR ITSELF AS A REGISTERED HOME
IMPROVEMENT CONTRACTOR;
(D) USE OR ATTEMPT TO USE A REGISTRATION WHICH HAS EXPIRED;
(E) OFFER TO MAKE OR MAKE ANY HOME IMPROVEMENT WITHOUT HAVING A
CURRENT REGISTRATION AS IS REQUIRED UNDER THIS ARTICLE;
(F) REPRESENT IN ANY MANNER THAT HIS, HER, OR ITS REGISTRATION CONSTI-
TUTES AN ENDORSEMENT OF THE QUALITY OF WORKMANSHIP OR COMPETENCY OF THE
CONTRACTOR.
3. REGISTRATIONS ISSUED TO HOME IMPROVEMENT CONTRACTORS SHALL NOT BE
TRANSFERABLE OR ASSIGNABLE.
S 770-G. SURETY BONDING REQUIREMENT. 1. AS A CONDITION TO OBTAINING A
REGISTRATION PURSUANT TO THIS ARTICLE, EVERY HOME IMPROVEMENT CONTRACTOR
APPLICANT WHO IS APPLYING FOR A REGISTRATION AND FOR WHOM THE TOTAL CASH
PRICE OF ALL OF HIS, HER, OR ITS HOME IMPROVEMENT CONTRACTS WITH ALL
HIS, HER, OR ITS CUSTOMERS IS LESS THAN FIVE HUNDRED THOUSAND DOLLARS
DURING THE PERIOD OF TWELVE CONSECUTIVE MONTHS PRIOR TO APPLYING FOR A
REGISTRATION SHALL OBTAIN AND CONTINUE IN EFFECT A SURETY BOND IN THE
AMOUNT OF TEN THOUSAND DOLLARS EXECUTED BY A SURETY COMPANY AUTHORIZED
TO TRANSACT BUSINESS IN THIS STATE.
2. AS A CONDITION OF OBTAINING A REGISTRATION PURSUANT TO THIS ARTI-
CLE, EVERY HOME IMPROVEMENT CONTRACTOR APPLICANT WHO IS APPLYING FOR A
REGISTRATION AND FOR WHOM THE TOTAL CASH PRICE OF ALL OF HIS, HER, OR
ITS HOME IMPROVEMENT CONTRACTS WITH ALL HIS, HER, OR ITS CUSTOMERS IS
BETWEEN FIVE HUNDRED THOUSAND DOLLARS BUT LESS THAN ONE MILLION DOLLARS
S. 3123 4
DURING THE PERIOD OF TWELVE CONSECUTIVE MONTHS PRIOR TO APPLYING FOR A
REGISTRATION SHALL OBTAIN AND CONTINUE IN EFFECT A SURETY BOND IN AN
AMOUNT OF TWENTY-FIVE THOUSAND DOLLARS EXECUTED BY A SURETY COMPANY
AUTHORIZED TO TRANSACT BUSINESS IN THIS STATE.
3. AS A CONDITION OF OBTAINING A REGISTRATION PURSUANT TO THIS ARTI-
CLE, EVERY HOME IMPROVEMENT CONTRACTOR APPLICANT WHO IS APPLYING FOR A
REGISTRATION AND FOR WHOM THE TOTAL CASH PRICE OF ALL OF HIS, HER, OR
ITS HOME IMPROVEMENT CONTRACTS WITH ALL HIS, HER, OR ITS CUSTOMERS IS
ONE MILLION DOLLARS OR GREATER DURING THE PERIOD OF TWELVE CONSECUTIVE
MONTHS PRIOR TO APPLYING FOR A REGISTRATION SHALL OBTAIN AND CONTINUE IN
EFFECT A SURETY BOND IN AN AMOUNT OF FIFTY THOUSAND DOLLARS EXECUTED BY
A SURETY COMPANY AUTHORIZED TO TRANSACT BUSINESS IN THIS STATE.
4. THE BOND SHALL BE CONDITIONED ON THE HOME IMPROVEMENT CONTRACTOR'S
PAYMENT OF ANY FINAL JUDGMENT ENTERED AGAINST SUCH HOME IMPROVEMENT
CONTRACTOR FOR LOSSES OR DAMAGES SUSTAINED BY THE OWNER AS A RESULT OF
THE BREACH OF THE HOME IMPROVEMENT CONTRACT WITHIN THIS STATE, AND ANY
CIVIL PENALTIES ASSESSED AGAINST A HOME IMPROVEMENT CONTRACTOR FOR
VIOLATIONS OF THIS ARTICLE.
5. RECOVERY AGAINST ANY BOND SHALL BE MADE BY THE BOARD ON BEHALF OF
AN OWNER OR OWNERS WHO OBTAIN A JUDGMENT AGAINST THE HOME IMPROVEMENT
CONTRACTOR FOR AN ACT OR OMISSION ON WHICH THE BOND IS CONDITIONED, IF
THE ACT OR OMISSION OCCURRED DURING THE TERM OF THE BOND. THE TOTAL
LIABILITY IMPOSED ON THE SURETY BOND UNDER THIS SECTION FOR ALL BREACHES
OF THE BOND CONDITION IS LIMITED TO THE FACE AMOUNT OF THE BOND. SUCH
LIABILITY IS LIMITED TO THE AMOUNT OF THE JUDGMENT. IN NO EVENT SHALL
THE SURETY ON A BOND BE LIABLE FOR TOTAL CLAIMS IN EXCESS OF THE BOND
AMOUNT, REGARDLESS OF THE NUMBER OR NATURE OF CLAIMS MADE AGAINST THE
BOND OR THE NUMBER OF YEARS THE BOND REMAINED IN FORCE.
6. ANY SURETY ISSUING A BOND PURSUANT TO THIS SECTION SHALL BE
REQUIRED TO PROVIDE THIRTY DAYS' NOTICE TO THE BOARD PRIOR TO THE EFFEC-
TIVE DATE OF CANCELLATION OF THE BOND.
7. THE FAILURE OF A HOME IMPROVEMENT CONTRACTOR TO MAINTAIN SUCH A
BOND AND SATISFY ALL CLAIMS AGAINST THE BOND, SHALL RESULT IN THE IMME-
DIATE REVOCATION OF THE REGISTRATION OF SUCH HOME IMPROVEMENT CONTRAC-
TOR.
S 770-H. HOME IMPROVEMENT TRUST FUND. 1. THERE IS HEREBY ESTABLISHED A
HOME IMPROVEMENT TRUST FUND PURSUANT TO SECTION NINETY-NINE-T OF THE
STATE FINANCE LAW WHICH SHALL PROVIDE FOR PAYMENT FOR LOSSES SUFFERED BY
AGGRIEVED CONSUMERS OR FINES OWED TO THE BOARD WHEN A BOND REQUIRED OF A
HOME IMPROVEMENT CONTRACTOR IS INSUFFICIENT TO COVER ALL LOSSES.
(A) ALL HOME IMPROVEMENT CONTRACTOR APPLICANTS COVERED UNDER THE
PROVISIONS OF THIS ARTICLE SHALL SUBMIT TO THE BOARD A CHECK IN THE
AMOUNT OF ONE HUNDRED DOLLARS, PAYABLE TO THE BOARD, BEFORE A REGISTRA-
TION SHALL BE ISSUED.
(B) DISBURSEMENTS FROM THE FUND WILL BE MADE AT THE DISCRETION OF THE
DIRECTOR OR HIS OR HER DESIGNEE, TO ANY CONSUMER OR TO THE BOARD FOR
WHOM RECOVERY UNDER THE CONTRACTOR'S REQUIRED BOND HAS PROVED TO BE
INSUFFICIENT TO COVER ALL DAMAGES OR FINES WHICH HAVE OCCURRED.
(C) PROOF OF PAYMENT BY THE SURETY COMPANY AND A JUDGMENT BY A COURT
OF COMPETENT JURISDICTION MUST BE PROVIDED TO THE DIRECTOR BEFORE
PAYMENT FROM THE FUND MAY BE MADE.
(D) THE DIRECTOR AND THE BOARD SHALL HAVE THE RIGHT OF SUBROGATION
AGAINST ANY CONTRACTOR FOR WHOM A PAYMENT FROM THE FUND HAS BEEN MADE IN
ORDER TO REPLENISH THE FUND.
S. 3123 5
(E) SHOULD THE FUND EVER FALL BELOW FIVE HUNDRED THOUSAND DOLLARS, THE
DIRECTOR AND THE BOARD MAY IMPOSE A SURCHARGE UPON HOME IMPROVEMENT
CONTRACTORS REGISTERED IN THE STATE OF NEW YORK TO REPLENISH IT.
2. THE DIRECTOR SHALL, BY JANUARY THIRTY-FIRST OF EACH YEAR, CAUSE AN
ACCOUNTING TO BE MADE OF ALL THE FUND'S ACTIVITIES DURING THE PRECEDING
CALENDAR YEAR.
S 770-I. POWERS OF THE BOARD. 1. THE BOARD SHALL PROMULGATE SUCH RULES
AND REGULATIONS AS ARE DEEMED NECESSARY TO EFFECTUATE THE PURPOSES OF
THIS ARTICLE, AND SHALL PROVIDE WRITTEN NOTIFICATION OF THE PROVISIONS
OF THIS ARTICLE TO ALL HOME IMPROVEMENT CONTRACTORS REGISTERED PURSUANT
TO THIS ARTICLE.
2. THE BOARD SHALL HAVE THE POWER TO ENFORCE THE PROVISIONS OF THIS
ARTICLE AND UPON COMPLAINT OF ANY PERSON, OR UPON THE DIRECTOR'S INITI-
ATIVE, TO INVESTIGATE ANY VIOLATION THEREOF OR TO INVESTIGATE THE BUSI-
NESS, BUSINESS PRACTICES AND BUSINESS METHODS OF ANY PERSON, FIRM,
LIMITED LIABILITY COMPANY, PARTNERSHIP OR CORPORATION APPLYING FOR OR
HOLDING A REGISTRATION AS A HOME IMPROVEMENT CONTRACTOR, IF IN THE OPIN-
ION OF THE DIRECTOR SUCH INVESTIGATION IS WARRANTED. EACH SUCH APPLICANT
OR REGISTRANT SHALL BE OBLIGED, ON REQUEST OF THE DIRECTOR, TO SUPPLY
SUCH INFORMATION, BOOKS, PAPERS OR RECORDS AS MAY BE REQUIRED CONCERNING
HIS, HER OR ITS BUSINESS, BUSINESS PRACTICES OR BUSINESS METHODS, OR
PROPOSED BUSINESS PRACTICES OR METHODS. FAILURE TO COMPLY WITH A LAWFUL
REQUEST OF THE DIRECTOR SHALL BE A GROUND FOR DENYING AN APPLICATION FOR
A REGISTRATION, OR FOR REVOKING, SUSPENDING, OR FAILING TO RENEW A
REGISTRATION ISSUED UNDER THIS ARTICLE.
3. THE BOARD SHALL HAVE THE POWER TO REVOKE OR SUSPEND ANY REGISTRA-
TION, OR IN LIEU THEREOF TO IMPOSE A FINE NOT EXCEEDING ONE THOUSAND
DOLLARS PAYABLE TO THE BOARD, OR REPRIMAND ANY REGISTRANT OR DENY AN
APPLICATION FOR A REGISTRATION OR RENEWAL THEREOF UPON PROOF THAT THE
APPLICANT OR REGISTRANT HAS:
(A) VIOLATED ANY OF THE PROVISIONS OF THIS ARTICLE OR THE RULES AND
REGULATIONS PROMULGATED PURSUANT TO THIS ARTICLE;
(B) PRACTICED FRAUD, DECEIT OR MISREPRESENTATION;
(C) MADE A MATERIAL MISSTATEMENT IN THE APPLICATION FOR OR RENEWAL OF
HIS OR HER REGISTRATION;
(D) DEMONSTRATED INCOMPETENCE OR UNTRUSTWORTHINESS IN HIS OR HER
ACTIONS.
4. THE BOARD SHALL, BEFORE DENYING AN APPLICATION FOR A REGISTRATION
OR BEFORE REVOKING OR SUSPENDING ANY REGISTRATION, OR IMPOSING ANY FINE
OR REPRIMAND, AND AT LEAST FIFTEEN DAYS PRIOR TO THE DATE SET FOR THE
HEARING, AND UPON DUE NOTICE TO THE COMPLAINANT OR OBJECTOR, NOTIFY IN
WRITING THE APPLICANT FOR, OR THE HOLDER OF SUCH REGISTRATION OF ANY
CHARGE MADE AND SHALL AFFORD SUCH APPLICANT OR REGISTRANT AN OPPORTUNITY
TO BE HEARD IN PERSON OR BY COUNSEL IN REFERENCE THERETO. SUCH WRITTEN
NOTICE MAY BE SERVED BY DELIVERY OF SAME PERSONALLY TO THE APPLICANT OR
REGISTRANT, OR BY MAILING SAME BY REGISTERED MAIL TO THE LAST KNOWN
BUSINESS ADDRESS OF SUCH APPLICANT OR REGISTRANT.
5. THE HEARING ON SUCH CHARGES SHALL BE AT SUCH TIME AND PLACE AS THE
BOARD SHALL PRESCRIBE AND SHALL BE CONDUCTED BY SUCH OFFICER OR PERSON
IN THE BOARD AS THE SECRETARY OF STATE MAY DESIGNATE, WHO SHALL HAVE THE
POWER TO SUBPOENA AND BRING BEFORE THE OFFICER OR PERSON SO DESIGNATED
ANY PERSON IN THIS STATE, AND ADMINISTER AN OATH TO AND TAKE TESTIMONY
OF ANY PERSON OR CAUSE HIS OR HER DEPOSITION TO BE TAKEN. A SUBPOENA
ISSUED UNDER THIS SECTION SHALL BE REGULATED BY THE CIVIL PRACTICE LAW
AND RULES. SUCH OFFICER OR PERSON IN THE BOARD DESIGNATED TO TAKE SUCH
S. 3123 6
TESTIMONY SHALL NOT BE BOUND BY COMMON LAW OR STATUTORY RULES OF
EVIDENCE OR BY TECHNICAL OR FORMAL RULES OF PROCEDURE.
6. IN THE EVENT THAT THE BOARD SHALL DENY THE APPLICATION FOR, OR
REVOKE OR SUSPEND ANY SUCH REGISTRATION, OR IMPOSE ANY FINE OR REPRI-
MAND, ITS DETERMINATION SHALL BE IN WRITING AND OFFICIALLY SIGNED. THE
ORIGINAL OF SUCH DETERMINATIONS, WHEN SO SIGNED, SHALL BE FILED IN THE
OFFICE OF THE BOARD AND COPIES THEREOF SHALL BE MAILED TO THE APPLICANT
OR REGISTRANT AND TO THE COMPLAINANT WITHIN TWO DAYS AFTER SUCH FILING.
7. THE BOARD, ACTING BY THE OFFICE OR PERSON DESIGNATED TO CONDUCT THE
HEARING PURSUANT TO SUBDIVISION FIVE OF THIS SECTION OR BY SUCH OTHER
OFFICER OR PERSON IN THE BOARD AS THE DIRECTOR MAY DESIGNATE, SHALL HAVE
THE POWER TO SUSPEND THE REGISTRATION OF ANY REGISTRANT WHO HAS BEEN
CONVICTED IN THIS STATE OR ANY OTHER STATE OR TERRITORY OF A FELONY OR
OF ANY MISDEMEANOR FOR A PERIOD NOT EXCEEDING THIRTY DAYS PENDING A
HEARING AND A DETERMINATION OF CHARGES MADE AGAINST HIM OR HER. IF SUCH
HEARING IS ADJOURNED AT THE REQUEST OF THE REGISTRANT, OR BY REASON OF
ANY ACT OR OMISSION BY HIM OR HER OR ON HIS OR HER BEHALF, SUCH SUSPEN-
SION MAY BE CONTINUED FOR THE ADDITIONAL PERIOD OF SUCH ADJOURNMENT.
8. THE ACTION OF THE BOARD IN GRANTING OR REFUSING TO GRANT OR TO
RENEW A REGISTRATION UNDER THIS ARTICLE OR IN REVOKING OR SUSPENDING OR
REFUSING TO REVOKE OR SUSPEND SUCH A REGISTRATION OR IMPOSING ANY FINE
OR REPRIMAND SHALL BE SUBJECT TO REVIEW BY A PROCEEDING INSTITUTED UNDER
ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES AT THE
INSTANCE OF THE APPLICANT FOR SUCH REGISTRATION, THE HOLDER OF A REGIS-
TRATION SO REVOKED, SUSPENDED, FINED OR REPRIMANDED OR THE PERSON
AGGRIEVED.
S 770-J. REGISTRY. THE BOARD SHALL MAINTAIN AND PUBLISH A REGISTRY OF
ALL REGISTERED HOME IMPROVEMENT CONTRACTORS, WHICH SHALL LIST AND IDEN-
TIFY, ON A COUNTY BY COUNTY BASIS, ALL REGISTERED HOME IMPROVEMENT
CONTRACTORS DOING BUSINESS IN THIS STATE. SUCH REGISTRY SHALL BE MADE
AVAILABLE ON THE BOARD'S INTERNET WEB SITE AND UPDATED AS FREQUENTLY AS
PRACTICABLE. THE BOARD SHALL ALSO MAINTAIN A TOLL-FREE STATEWIDE TELE-
PHONE NUMBER WHICH SHALL ALLOW THE PUBLIC TO ACCESS THE INFORMATION
CONTAINED ON SUCH REGISTRY. ANY INFORMATION REGARDING COMPLAINTS AND
CLAIMS FILED AGAINST A HOME IMPROVEMENT CONTRACTOR, INCLUDING THE RESOL-
UTION OF SUCH COMPLAINTS AND CLAIMS, SHALL BE MADE AVAILABLE TO THE
PUBLIC UPON REQUEST.
S 770-K. PENALTIES. 1. ANY PERSON WHO OPERATES AS A HOME IMPROVEMENT
CONTRACTOR WITHOUT BEING REGISTERED SHALL BE REQUIRED TO PAY A CIVIL
PENALTY IN THE SUM OF TWO THOUSAND DOLLARS PER HOME IMPROVEMENT CONTRACT
ENTERED INTO IN VIOLATION OF THE REGISTRATION REQUIREMENT. HOWEVER, ANY
SUCH PERSON AGAINST WHOM SUCH PENALTY HAS BEEN ASSESSED MAY AVOID ALL
BUT ONE THOUSAND DOLLARS OF SUCH PENALTY BY OBTAINING A REGISTRATION AS
REQUIRED BY THIS ARTICLE; PROVIDED THAT APPLICATION FOR SUCH REGISTRA-
TION IS MADE NOT MORE THAN TEN DAYS AFTER THE IMPOSITION OF SUCH PENAL-
TY. ALL CIVIL PENALTIES COLLECTED PURSUANT TO THIS SECTION SHALL BE
DEPOSITED TO THE CREDIT OF THE HOME IMPROVEMENT TRUST FUND ESTABLISHED
PURSUANT TO SECTION NINETY-NINE-T OF THE STATE FINANCE LAW.
2. A HOME IMPROVEMENT CONTRACTOR MAY NOT MAINTAIN A CIVIL ACTION TO
RECOVER PAYMENT FOR WORK UNDER A HOME IMPROVEMENT CONTRACT PERFORMED IF
SUCH CONTRACTOR IS NOT REGISTERED AS REQUIRED UNDER THIS ARTICLE.
S 3. Paragraph (a) of subdivision 1 of section 771 of the general
business law, as added by chapter 421 of the laws of 1987, is amended to
read as follows:
(a) The name, address, telephone number, STATE REGISTRATION NUMBER,
and license number, if applicable, of the contractor AND THE TOLL-FREE
S. 3123 7
TELEPHONE NUMBER AND INTERNET WEB SITE ADDRESS MAINTAINED BY THE BOARD
PURSUANT TO SECTION SEVEN HUNDRED SEVENTY-J OF THIS ARTICLE.
S 4. Section 773 of the general business law, as amended by chapter
587 of the laws of 1990, is amended to read as follows:
S 773. Violations. 1. Technical violations. Every home improvement
contractor who violates any of the provisions of this article shall be
subject to a civil penalty not to exceed [one] TWO hundred FIFTY dollars
FOR EACH VIOLATION.
2. Substantial violations. Every home improvement contractor who fails
to deposit funds in an escrow account or provide a bond or contract of
indemnity or irrevocable letter of credit in compliance with the
requirements of section seventy-one-a of the lien law, or who fails to
provide a written contract substantially in compliance with the require-
ments of this article, shall be subject to a civil penalty not to exceed
[the greater of two hundred fifty] FIFTEEN HUNDRED dollars for each
violation or five percent of the aggregate contract price specified in
the home improvement contract; provided, however, that in no event shall
the total penalty exceed twenty-five hundred dollars for each contract.
3. Mitigating factors; defenses. In an instance where the contractor
has been shown to have committed multiple violations of this article or
the provisions of section seventy-one-a of the lien law, the court shall
consider the following factors in assessing a civil penalty pursuant to
subdivision two of this section: the volume of business which the home
improvement contractor performs on an annual basis, the number of
contracts in violation, the actual financial loss or exposure to finan-
cial loss suffered by any owner as a result of the violations, and
whether the home improvement contractor acted in good faith or willfully
with respect to such violations. No home improvement contractor shall be
subject to the increased penalties provided by subdivision two of this
section if such contractor shows by a preponderance of the evidence that
the violation was not intentional and resulted from a bona fide error
made notwithstanding the maintenance of procedures reasonably adopted to
avoid such a violation.
4. ALL CIVIL PENALTIES COLLECTED PURSUANT TO THIS SECTION SHALL BE
DEPOSITED TO THE CREDIT OF THE HOME IMPROVEMENT TRUST FUND ESTABLISHED
PURSUANT TO SECTION NINETY-NINE-T OF THE STATE FINANCE LAW.
S 5. Section 775 of the general business law, as added by chapter 421
of the laws of 1987, is amended to read as follows:
S 775. Applicability. 1. This article shall not exempt any contractor
subject to its provisions from complying with any local law with respect
to the regulation of home improvement contractors, provided, however,
that after the effective date of this article, no political subdivision
may enact a local law inconsistent with the provisions of section seven
hundred seventy-one of this article.
2. SECTIONS SEVEN HUNDRED SEVENTY-A, SEVEN HUNDRED SEVENTY-B, SEVEN
HUNDRED SEVENTY-C, SEVEN HUNDRED SEVENTY-D, SEVEN HUNDRED SEVENTY-E,
SEVEN HUNDRED SEVENTY-F, SEVEN HUNDRED SEVENTY-G, SEVEN HUNDRED SEVEN-
TY-H, SEVEN HUNDRED SEVENTY-I, SEVEN HUNDRED SEVENTY-J AND SEVEN HUNDRED
SEVENTY-K OF THIS ARTICLE SHALL NOT APPLY TO HOME IMPROVEMENT CONTRAC-
TORS OPERATING WITHIN ANY CITY WITH A POPULATION OF ONE MILLION OR MORE.
3. ANY LOCAL LAW REGULATING HOME IMPROVEMENT CONTRACTORS THAT IS AT
LEAST AS STRICT AS THE PROVISIONS OF THIS ARTICLE SHALL NOT BE DEEMED TO
BE PREEMPTED BY THE PROVISIONS OF THIS ARTICLE.
S 6. The state finance law is amended by adding a new section 99-t to
read as follows:
S. 3123 8
S 99-T. HOME IMPROVEMENT TRUST FUND. 1. THERE IS HEREBY ESTABLISHED IN
THE JOINT CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF THE
DEPARTMENT OF TAXATION AND FINANCE A SPECIAL REVENUE FUND TO BE KNOWN AS
THE "HOME IMPROVEMENT TRUST FUND". SUCH FUND SHALL CONSIST OF ALL MONIES
COLLECTED PURSUANT TO PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION SEVEN
HUNDRED SEVENTY-H, SECTION SEVEN HUNDRED SEVENTY-K, AND SECTION SEVEN
HUNDRED SEVENTY-THREE OF THE GENERAL BUSINESS LAW.
2. MONIES OF THE FUND SHALL BE AVAILABLE FOR THE PAYMENT OF OUTSTAND-
ING AWARDS TO AGGRIEVED CONSUMERS PURSUANT TO SECTION SEVEN HUNDRED
SEVENTY-H OF THE GENERAL BUSINESS LAW.
3. THE STATE CONSUMER PROTECTION BOARD SHALL ADOPT SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY FOR THE ADMINISTRATION OF THE FUND.
S 7. This act shall take effect on the one hundred twentieth day after
it shall have become a law; provided that the state consumer protection
board and the department of state are authorized to promulgate any and
all rules and regulations and take any other measures necessary to
implement this act on its effective date on or before such date.