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

                                  2648

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 17, 2013
                               ___________

Introduced by M. of A. SIMOTAS, BENEDETTO, STEVENSON, ROSENTHAL, MAISEL,
  ROBERTS  --  Multi-Sponsored by -- M. of A. BRENNAN, COOK, CYMBROWITZ,
  GIBSON, GOTTFRIED, HOOPER, MARKEY, ROBINSON -- read once and  referred
  to the Committee on Consumer Affairs and Protection

AN  ACT  to  amend  the  general business law, the executive law and the
  social services law, in relation to prohibiting every child day  care,
  child  day care provider, child day care center, group family day care
  home, school age child care or family day  care  home  from  using  or
  having  for use unsafe children's products, defining unsafe children's
  products and authorizing civil penalties

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

  Section 1. The general business law is amended by adding a new article
28-F to read as follows:
                              ARTICLE 28-F
                      NEW YORK SAFE CHILD CARE ACT
SECTION 491.   SHORT TITLE.
        491-A. DEFINITIONS.
        491-B.  LIST  OF UNSAFE CHILDREN'S PRODUCTS AND DURABLE JUVENILE
                 PRODUCTS.
        491-C. UNSAFE CHILDREN'S PRODUCTS; CHILD CARE.
        491-D. ENFORCEMENT.
  S 491. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY  BE  CITED  AS
THE "NEW YORK SAFE CHILD CARE ACT".
  S  491-A.  DEFINITIONS.  FOR  THE PURPOSES OF THIS ARTICLE: 1.  "CHIL-
DREN'S PRODUCT" MEANS A TOY  OR  OTHER  ARTICLE,  OTHER  THAN  CLOTHING,
PRIMARILY  INTENDED  FOR  USE  BY A CHILD UNDER TWELVE YEARS OF AGE. THE
FOLLOWING SHALL BE CONSIDERED IN DETERMINING IF THE TOY  OR  ARTICLE  IS
INTENDED FOR A CHILD UNDER TWELVE YEARS OF AGE:
  A. A STATEMENT BY A MANUFACTURER ABOUT THE INTENDED USE OF SUCH TOY OR
ARTICLE, INCLUDING A LABEL ON SUCH TOY OR ARTICLE;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02688-01-3
              

A. 2648                             2

  B. THE CONTEXT AND MANNER OF THE ADVERTISING, PROMOTION, AND MARKETING
ASSOCIATED WITH THE TOY OR ARTICLE; AND
  C.  WHETHER  THE TOY OR ARTICLE IS COMMONLY RECOGNIZED BY CONSUMERS AS
BEING INTENDED FOR USE BY A CHILD UNDER TWELVE YEARS OF AGE.
  2. "CHILD CARE PROGRAM" MEANS  ANY  PLACE  SUBJECT  TO  SECTION  THREE
HUNDRED  NINETY OF THE SOCIAL SERVICES LAW OR ARTICLE FORTY-SEVEN OF THE
NEW YORK  CITY  HEALTH  CODE  AS  AUTHORIZED  BY  SECTION  FIVE  HUNDRED
FIFTY-EIGHT OF THE NEW YORK CITY CHARTER.
  3. "DEPARTMENT" MEANS THE DEPARTMENT OF STATE.
  4. "DURABLE JUVENILE PRODUCT" MEANS PRODUCTS INTENDED FOR USE, OR THAT
MAY BE REASONABLY EXPECTED TO BE USED, BY CHILDREN UNDER THE AGE OF FIVE
YEARS  AS  DEFINED IN SUBSECTION (F) OF SECTION 104 OF THE UNITED STATES
CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008, PUB. L. NO. 110-314  OR
OTHER  SIMILAR DURABLE JUVENILE PRODUCTS DESIGNED FOR CHILDREN UNDER AGE
FIVE AS SHALL BE SPECIFIED IN  REGULATIONS  PROMULGATED  BY  THE  UNITED
STATES CONSUMER PRODUCT SAFETY COMMISSION.
  5. "PERSON" MEANS A NATURAL PERSON, FIRM, CORPORATION, LIMITED LIABIL-
ITY COMPANY, OR ASSOCIATION, AND ANY EMPLOYEE OR AGENT THEREOF.
  6. "OFFICE" MEANS THE OFFICE OF CHILDREN AND FAMILY SERVICES.
  7.  "RECALL"  MEANS  A REQUEST TO RETURN A PRODUCT TO THE MANUFACTURER
DUE TO A DEFECT IN THE PRODUCT.
  S 491-B. LIST OF  UNSAFE  CHILDREN'S  PRODUCTS  AND  DURABLE  JUVENILE
PRODUCTS.  1.  THE  DEPARTMENT,  IN  CONSULTATION WITH THE OFFICE, SHALL
CREATE, MAINTAIN, AND UPDATE A COMPREHENSIVE LIST OF  UNSAFE  CHILDREN'S
PRODUCTS AND DURABLE JUVENILE PRODUCTS.
  2.  A  CHILDREN'S  PRODUCT OR DURABLE JUVENILE PRODUCT IS DEEMED TO BE
UNSAFE FOR PURPOSES OF THIS ARTICLE IF IT MEETS  ANY  OF  THE  FOLLOWING
CRITERIA:
  A.  THE  DEPARTMENT  HAS  RECEIVED  NOTIFICATION FROM AN AGENCY OF THE
FEDERAL GOVERNMENT THAT THE PRODUCT DOES NOT CONFORM TO  ALL  APPLICABLE
FEDERAL  LAWS AND REGULATIONS SETTING FORTH STANDARDS FOR THE CHILDREN'S
PRODUCT OR DURABLE JUVENILE PRODUCT;
  B. THE PRODUCT HAS BEEN RECALLED FOR SAFETY REASONS BY  AN  AGENCY  OF
THE  FEDERAL  GOVERNMENT  OR THE PRODUCT'S MANUFACTURER, DISTRIBUTOR, OR
IMPORTER, AND THE RECALL HAS NOT BEEN RESCINDED; OR
  C. AN AGENCY OF THE FEDERAL GOVERNMENT HAS ISSUED  A  WARNING  THAT  A
SPECIFIC  PRODUCT'S  INTENDED  USE  CONSTITUTES A SAFETY HAZARD, AND THE
WARNING HAS NOT BEEN RESCINDED.
  3. THE DEPARTMENT AND THE OFFICE SHALL  MAKE  THE  COMPREHENSIVE  LIST
AVAILABLE  TO  THE  PUBLIC AT NO COST, SHALL POST IT ON ITS WEBSITE, AND
SHALL ENCOURAGE LINKS.
  S 491-C. UNSAFE CHILDREN'S PRODUCTS;  CHILD  CARE.  1.  A  CHILD  CARE
PROGRAM MAY NOT USE OR HAVE ON THE PREMISES AN UNSAFE CHILDREN'S PRODUCT
OR  DURABLE  JUVENILE PRODUCT AS DESCRIBED IN SECTION FOUR HUNDRED NINE-
TY-ONE-B OF THIS ARTICLE. THIS SUBDIVISION SHALL NOT APPLY  TO  A  CHIL-
DREN'S  PRODUCT  OR  DURABLE JUVENILE PRODUCT THAT CHILDREN BRING TO THE
PREMISES FROM THEIR HOME OR AN ANTIQUE OR COLLECTIBLE CHILDREN'S PRODUCT
OR DURABLE JUVENILE PRODUCT IF IT IS NOT USED BY, OR ACCESSIBLE TO,  ANY
CHILD IN THE CHILD CARE PROGRAM.
  2.  THE  DEPARTMENT,  IN CONSULTATION WITH THE OFFICE AND THE NEW YORK
CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE  SHALL  NOTIFY  CHILD  CARE
FACILITIES  OF  THE  PROVISIONS  OF THIS SECTION AND THIS ARTICLE AND OF
UNSAFE CHILDREN'S PRODUCTS AND DURABLE JUVENILE PRODUCTS, AS  DETERMINED
IN  ACCORDANCE  WITH THIS ARTICLE, IN PLAIN, NON-TECHNICAL LANGUAGE THAT
WILL ENABLE EACH CHILD CARE PROGRAM TO  EFFECTIVELY  INSPECT  CHILDREN'S
PRODUCTS  OR  DURABLE  JUVENILE  PRODUCTS AND IDENTIFY UNSAFE CHILDREN'S

A. 2648                             3

PRODUCTS OR DURABLE JUVENILE PRODUCTS. SUCH NOTICE SHALL BE PROVIDED  TO
EVERY  CHILD  CARE PROGRAM UPON THE EFFECTIVE DATE OF THIS ARTICLE OR AS
SOON AS PRACTICABLE THEREAFTER AND AT EVERY SIX  MONTH  INTERVAL  THERE-
FROM,  AND  SUCH  NOTICE  SHALL  ALSO  BE PROVIDED TO EACH APPLICANT FOR
LICENSE OR REGISTRATION PURSUANT TO SECTION THREE HUNDRED NINETY OF  THE
SOCIAL SERVICES LAW.
  3.  THE  DEPARTMENT  AND  THE  OFFICE SHALL PROMULGATE RULES AND REGU-
LATIONS TO CARRY OUT THE PROVISIONS OF THIS SECTION.
  D. EACH CHILD CARE PROGRAM SHALL MAINTAIN A FILE CONTAINING ALL BULLE-
TINS, NOTICES, OR BOTH ISSUED BY THE DEPARTMENT AND THE OFFICE REGARDING
UNSAFE CHILDREN'S PRODUCTS OR DURABLE JUVENILE PRODUCTS, AND SHALL  MAKE
THE  FILE  ACCESSIBLE TO THE PROGRAM STAFF MEMBERS AND TO PARENTS OF THE
CHILDREN WHO ATTEND THE PROGRAM.
  S 491-D. ENFORCEMENT. WHENEVER THE OFFICE DETERMINES  THAT  ANY  CHILD
CARE  PROGRAM HAS VIOLATED ANY PROVISION OF THIS ARTICLE, THE OFFICE MAY
BRING AN ENFORCEMENT ACTION PURSUANT TO SUBDIVISION  ELEVEN  OF  SECTION
THREE HUNDRED NINETY OF THE SOCIAL SERVICES LAW.
  S  2. Subdivision 3 of section 94-a of the executive law is amended by
adding a new paragraph 16 to read as follows:
  (16) CREATE A LIST OF UNSAFE CHILDREN'S PRODUCTS AND DURABLE  JUVENILE
PRODUCTS  AND  PROVIDE  SUCH  LIST  TO CHILD CARE FACILITIES PURSUANT TO
ARTICLE TWENTY-EIGHT-F OF THE GENERAL BUSINESS LAW.
  S 3. Subdivision 11 of section 390 of  the  social  services  law,  as
added  by  chapter  750  of  the laws of 1990, paragraphs (a) and (b) as
amended and paragraph (d) as added by chapter 416 of the  laws  of  2000
and  paragraph  (c) as amended and paragraph (e) as added by chapter 117
of the laws of 2010, is amended to read as follows:
  11. (a) (i) The office of children and  family  services  shall  adopt
regulations  establishing  civil  penalties of no more than five hundred
dollars per day to be assessed against child day  care  centers,  school
age  child care programs, group family day care homes or family day care
homes for violations of this section, sections  three  hundred  ninety-a
and  three hundred ninety-b of this title, ARTICLE TWENTY-EIGHT-F OF THE
GENERAL BUSINESS LAW and any  regulations  promulgated  thereunder.  The
regulations  establishing  civil  penalties shall specify the violations
subject to penalty.
  (ii) The office of children and  family  services  shall  adopt  regu-
lations  establishing  civil  penalties  of  no  more  than five hundred
dollars per day to be assessed against  child  day  care  providers  who
operate  child day care centers or group family day care homes without a
license or who operate family day  care  homes,  school-age  child  care
programs,  or  child  day care centers required to be registered without
obtaining such registration.
  (iii) In addition to any other civil or criminal penalty  provided  by
law,  the office of children and family services shall have the power to
assess civil penalties in accordance with its regulations adopted pursu-
ant to this subdivision after a hearing  conducted  in  accordance  with
procedures  established  by  regulations  of  the office of children and
family services. Such procedures shall require that notice of  the  time
and  place  of  the  hearing,  together  with  a statement of charges of
violations, shall be served in person or by certified mail addressed  to
the  school  age  child care program, group family day care home, family
day care home, or child day care center at least thirty  days  prior  to
the  date  of  the hearing. The statement of charges shall set forth the
existence of the violation or violations,  the  amount  of  penalty  for
which  the  program  may become liable, the steps which must be taken to

A. 2648                             4

rectify the violation, and where applicable, a statement that a  penalty
may  be  imposed  regardless  of  rectification. A written answer to the
charges of violations shall be filed with the  office  of  children  and
family services not less than ten days prior to the date of hearing with
respect  to each of the charges and shall include all material and rele-
vant matters which, if not disclosed in the answer, would not likely  be
known to the office of children and family services.
  (iv)  The  hearing  shall be held by the commissioner of the office of
children and family services or the commissioner's designee. The  burden
of  proof  at such hearing shall be on the office of children and family
services to show that the charges are supported by  a  preponderance  of
the  evidence.  The  commissioner  of  the office of children and family
services or the commissioner's designee, in his or her  discretion,  may
allow the child day care center operator or provider to attempt to prove
by  a  preponderance  of  the  evidence  any  matter not included in the
answer. Where the child day care  provider  satisfactorily  demonstrates
that it has rectified the violations in accordance with the requirements
of paragraph (c) of this subdivision, no penalty shall be imposed except
as provided in paragraph (c) of this subdivision.
  (b)(i) In assessing penalties pursuant to this subdivision, the office
of  children  and  family  services may consider the completeness of any
rectification made and the specific circumstances of such violations  as
mitigating factors.
  (ii)  Upon  the request of the office of children and family services,
the attorney general shall commence an action in any court of  competent
jurisdiction   against  any  child  day  care  program  subject  to  the
provisions of this subdivision and against any person, entity or  corpo-
ration  operating  such  center  or school age child care program, group
family day care home or family day care home for  the  recovery  of  any
penalty  assessed  by  the  office  of  children  and family services in
accordance with the provisions of this subdivision.
  (iii) Any such penalty assessed by the office of children  and  family
services  may  be  released or compromised by the office of children and
family services before the matter has  been  referred  to  the  attorney
general;  when  such  matter  has been referred to the attorney general,
such penalty may be released or compromised and any action commenced  to
recover the same may be settled and discontinued by the attorney general
with the consent of the office of children and family services.
  (c)(i)  Except  as  provided  for  in this paragraph, a child day care
provider shall avoid payment of  a  penalty  imposed  pursuant  to  this
subdivision  where  the  provider  has  rectified  the  condition  which
resulted in the imposition of the penalty within thirty days of  notifi-
cation of the existence of the violation of statute or regulation.
  (ii)  [Clause]  SUBPARAGRAPH  (i)  of  this paragraph notwithstanding,
rectification shall not preclude the imposition of a penalty pursuant to
this subdivision where:
  (A) the child day care provider has operated a child day  care  center
or  group  family day care home without a license, has refused to seek a
license for the operation of such a center or home, or has continued  to
operate  such  a  center  or home after denial of a license application,
revocation of an existing license or suspension of an existing license;
  (B) the child day care provider has operated a family day  care  home,
school-age  child  care  program or child day care center required to be
registered without being registered, has refused  to  seek  registration
for  the  operation  of such home, program or center or has continued to
operate such a home, program or center after denial  of  a  registration

A. 2648                             5

application,  revocation of an existing registration or suspension of an
existing registration;
  (C)  there  has  been a total or substantial failure of the facility's
fire detection or prevention systems or emergency evacuation procedures;
  (D) the child day care provider or an assistant, employee or volunteer
has failed to provide adequate and competent supervision;
  (E) the child day care provider or an assistant, employee or volunteer
has failed to provide adequate sanitation;
  (F) the child day care provider or an assistant,  employee,  volunteer
or,  for  a family day care home or group family day care home, a member
of the provider's household, has injured a child in  care,  unreasonably
failed  to  obtain  medical attention for a child in care requiring such
attention, used corporal punishment against a child in care or abused or
maltreated a child in care;
  (G) the child day care provider has violated  the  same  statutory  or
regulatory standard more than once within a six month period;
  (H) the child day care provider or an assistant, employee or volunteer
has  failed  to  make  a report of suspected child abuse or maltreatment
when required to do so pursuant to section four hundred thirteen of this
article; [or]
  (I) the child day care provider or an assistant, employee or volunteer
has submitted to the office of children and  family  services  a  forged
document as defined in section 170.00 of the penal law; OR
  (J) THE CHILD DAY CARE PROVIDER HAS VIOLATED THE PROVISIONS OF ARTICLE
TWENTY-EIGHT-F OF THE GENERAL BUSINESS LAW ON MORE THAN ONE OCCASION.
  (d)  Any  civil  penalty received by the office of children and family
services pursuant to this subdivision shall be deposited to  the  credit
of  the "quality child care and protection fund" established pursuant to
section ninety-seven-www of the state finance law.
  (e)(i) The office of children and family services  shall  deny  a  new
application  for  licensure  or registration made by a day care provider
whose license or registration was previously revoked or terminated based
on a violation of statute or regulation for a period of two  years  from
the  date that the revocation or termination of the license or registra-
tion became finally effective, unless such  office  determines,  in  its
discretion,  that  approval of the application will not in any way jeop-
ardize the health, safety or welfare of children in the center,  program
or  home.  For the purposes of this paragraph, the date that the revoca-
tion or termination became finally effective shall be, as applicable:
  (A) the date that the revocation or termination became effective based
on the notice of revocation or termination;
  (B) the date that the hearing decision was issued upholding the  revo-
cation or termination;
  (C)  the date of issuance of a final court order affirming the revoca-
tion or termination or affirming a  hearing  decision  that  upheld  the
revocation or termination; or
  (D)  another  date  mutually agreed upon by the office of children and
family services and the provider.
  (ii)(A) Such office shall deny a  new  application  for  licensure  or
registration  made  by  a day care provider who is enjoined or otherwise
prohibited by a court order from operation of a day care  center,  group
family  day  care  home,  family  day care home or school-age child care
program without a license or registration for a period of two years from
the date of the court order unless the court order specifically  enjoins
the provider from providing day care for a period longer than two years,

A. 2648                             6

in  which  case  the  office  shall deny any new application made by the
provider while the provider is so enjoined.
  (B)  Such  office shall deny a new application for licensure or regis-
tration made by a day care provider  who  is  assessed  a  second  civil
penalty  by  such  office  for  having operated a day care center, group
family day care home, family day care  home  or  school-age  child  care
program without a license or registration for a period of two years from
the  date  of  the  second fine. For the purposes of this paragraph, the
date of the second fine shall be either the date upon which the day care
provider signs a stipulation agreement to pay the  second  fine  or  the
date upon which a hearing decision is issued affirming the determination
of such office to impose the second fine, as applicable.
  (iii)  A  day  care  provider who surrenders the provider's license or
registration while such office is engaged in enforcement seeking suspen-
sion, revocation or termination of such provider's license or  registra-
tion pursuant to the regulations of such office, shall be deemed to have
had  their  license  or  registration revoked or terminated and shall be
subject to the prohibitions against licensing or  registration  pursuant
to subparagraph (i) of this paragraph for a period of two years from the
date of surrender of the license or registration.
  S  4. This act shall take effect one year after it shall have become a
law; provided that the department of state and the  office  of  children
and  family  services 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.