S T A T E   O F   N E W   Y O R K
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    S. 2970                                                  A. 4420

                       2015-2016 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            January 30, 2015
                               ___________

IN  SENATE -- Introduced by Sen. GOLDEN -- read twice and ordered print-
  ed, and when printed to be committed  to  the  Committee  on  Consumer
  Protection

IN  ASSEMBLY  --  Introduced  by  M.  of A. MALLIOTAKIS -- read once and
  referred to the Committee on Economic Development

AN ACT to amend the general business law and the civil practice law  and
  rules, in relation to licensing of appearance enhancement businesses

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

  Section 1. Section 400 of the  general  business  law  is  amended  by
adding a new subdivision 11 to read as follows:
  11.  "RELATED  PERSON"  MEANS  A  "RELATED  PERSON"  AS  SUCH  TERM IS
DESCRIBED PURSUANT TO SUBPARAGRAPH (C) OF PARAGRAPH THREE OF  SUBSECTION
(B) OF SECTION FOUR HUNDRED SIXTY-FIVE OF THE INTERNAL REVENUE CODE.
  S  2.  Subdivision  1  of  section 410 of the general business law, as
added by chapter 509 of the laws of 1992, is amended to read as follows:
  1. Suspension and revocation of licenses; fines; reprimands. A license
issued pursuant to this article may be suspended or revoked, or  a  fine
not  exceeding  five  hundred  dollars  payable to the department may be
imposed for any one or more of the following causes:
  a. Fraud or bribery in securing a license or  permission  to  take  an
examination therefor.
  b.  The  making  of any false statement as to a material matter in any
application or other statement or certificate required by or pursuant to
this article.
  c. Incompetence or untrustworthiness.
  d. Failure to display the license as provided in this article.
  e. Violation of any provision of this article, or of any rule or regu-
lation adopted hereunder.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08189-01-5

              

S. 2970                             2                            A. 4420

  f. Conviction of any of the following crimes subsequent to  the  issu-
ance  of a license pursuant to this article:  fraud pursuant to sections
170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and  190.65;  falsifying
business  records  pursuant to section 175.10; grand larceny pursuant to
article  155;  bribery  pursuant  to  sections  180.03,  180.08, 180.15,
180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45,  200.50;
perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
sections  120.05,  120.10,  120.11,  120.12; robbery pursuant to article
160; homicide pursuant  to  sections  125.25  and  125.27;  manslaughter
pursuant  to  sections 125.15 and 125.20; kidnapping and unlawful impri-
sonment pursuant to sections 135.10,  135.20  and  135.25;  PROSTITUTION
OFFENSES PURSUANT TO ARTICLE TWO HUNDRED THIRTY OF THE PENAL LAW; unlaw-
ful  weapons  possession pursuant to sections 265.02, 265.03 and 265.04;
criminal use of a weapon pursuant to sections 265.08 and 265.09;  crimi-
nal  sale  of  a  weapon pursuant to sections 265.11 and 265.12; and sex
offenses pursuant to article 130 of the penal  law.  Provided,  however,
that  for  the  purposes of this article, none of the following shall be
considered criminal convictions or reported as such:  (i)  a  conviction
for  which an executive pardon has been issued pursuant to the executive
law; (ii) a conviction which has been vacated and replaced by a youthful
offender finding pursuant to article seven hundred twenty of the  crimi-
nal  procedure  law,  or  the  applicable provisions of law of any other
jurisdiction; or (iii) a conviction  the  records  of  which  have  been
expunged  or sealed pursuant to the applicable provisions of the laws of
this state or of any other jurisdiction; and (iv) a conviction for which
other evidence of successful rehabilitation to remove the disability has
been issued.
  [Provided, however, a fine shall not be imposed for the] EXCEPT IN THE
CASE OF causes specified in paragraph f of this subdivision[.   In],  IN
lieu  of  or  in  conjunction  with  the  suspension  or revocation of a
license, or the imposition of a  fine  pursuant  to  this  section,  the
secretary  may issue a reprimand. When a license issued pursuant to this
article is revoked, such license shall not  be  reinstated  or  reissued
until after the expiration of a period of one year from the date of such
revocation.  No  license  shall be issued after a second revocation.  IN
ADDITION TO THE FORGOING ONE YEAR REVOCATION,  WHEN  A  LICENSE  FOR  AN
APPEARANCE ENHANCEMENT BUSINESS IS REVOKED, A LICENSE SHALL NOT BE REIN-
STATED  OR  REISSUED TO THE ORIGINAL LICENSEE, OR TO ANY RELATED PERSON,
AS DEFINED IN THIS ARTICLE FOR A PERIOD OF FIVE YEARS FOR  OPERATION  AT
AN  ADDRESS  WITHIN  THE  SAME  COUNTY AS THE ORIGINAL PLACE OF BUSINESS
LISTED ON OR FOR THE LICENSE, AND NO LICENSE SHALL  BE  ISSUED  AFTER  A
SECOND REVOCATION.
  S 3. The general business law is amended by adding a new section 412-a
to read as follows:
  S  412-A. ADDITIONAL PROVISIONS WITH RESPECT TO AN APPEARANCE ENHANCE-
MENT BUSINESS. 1. ANY OTHER PROVISIONS OF THIS ARTICLE TO  THE  CONTRARY
NOTWITHSTANDING:
  A. ANY LICENSE OR RENEWAL THEREOF ISSUED FOR AN APPEARANCE ENHANCEMENT
BUSINESS  PURSUANT TO THIS ARTICLE MAY BE REVOKED, CANCELLED, SUSPENDED,
AND/OR SUBJECTED TO THE IMPOSITION OF  A  CIVIL  PENALTY  FOR  CAUSE  OR
VIOLATIONS  OCCURRING  DURING THE LICENSE PERIOD AND/OR THE PERIOD IMME-
DIATELY PRECEDING THE ISSUANCE OF SUCH LICENSE OR RENEWAL, AND  MUST  BE
REVOKED  UPON  CONVICTION OF THE LICENSEE UPON ANY FELONY OFFENSE LISTED
IN PARAGRAPH F OF SUBDIVISION ONE OF SECTION FOUR HUNDRED  TEN  OF  THIS
ARTICLE.  AS  USED  IN  THIS  SECTION,  THE  TERM  "FOR CAUSE" MEANS AND
INCLUDES THE EXISTENCE OF A SUSTAINED AND CONTINUING PATTERN  OF  NOISE,

S. 2970                             3                            A. 4420

DISTURBANCE,  MISCONDUCT, OR DISORDER ON OR ABOUT THE LICENSED PREMISES,
RELATED TO THE OPERATION OF THE PREMISES OR THE CONDUCT OF ITS  PATRONS,
WHICH  ADVERSELY  AFFECTS THE HEALTH, WELFARE, OR SAFETY OF THE INHABIT-
ANTS OF THE AREA IN WHICH SUCH LICENSED PREMISES ARE LOCATED. THE EXIST-
ENCE  OF  A  SUSTAINED  AND  CONTINUING  PATTERN  OF NOISE, DISTURBANCE,
MISCONDUCT, OR DISORDER ON OR ABOUT THE LICENSED  PREMISES,  RELATED  TO
THE  OPERATION  OF  THE  PREMISES OR THE CONDUCT OF ITS PATRONS, WILL BE
PRESUMED UPON THE FOURTH INCIDENT REPORTED TO A LAW  ENFORCEMENT  AGENCY
OF  NOISE  OR  DISTURBANCE  OR  MISCONDUCT  OR  DISORDER ON OR ABOUT THE
LICENSED PREMISES OR RELATED TO THE OPERATION OF  THE  PREMISES  OR  THE
CONDUCT  OF  ITS  PATRONS,  IN ANY ONE HUNDRED EIGHTY DAY PERIOD, ABSENT
CLEAR AND CONVINCING EVIDENCE OF EITHER FRAUDULENT INTENT ON THE PART OF
ANY COMPLAINANT OR A FACTUAL ERROR WITH RESPECT TO THE  CONTENT  OF  ANY
REPORT CONCERNING SUCH COMPLAINT RELIED UPON BY THE SECRETARY.
  B.  A  PERSON  WHO  OPERATES AN APPEARANCE ENHANCEMENT BUSINESS WITHIN
THIS STATE WITHOUT A VALID LICENSE BEING IN EFFECT SHALL HAVE UP TO  ONE
MONTH AFTER NOTIFICATION TO APPLY FOR SUCH LICENSE AND UP TO ONE YEAR TO
OBTAIN  SUCH  LICENSE.  OPERATION  OF AN APPEARANCE ENHANCEMENT BUSINESS
WITHIN THIS STATE WITHOUT A VALID LICENSE BEING  IN  EFFECT  OR  WITHOUT
PROOF  THAT  APPLICATION  HAS BEEN MADE FOR A VALID LICENSE WITHIN THREE
MONTHS OF NOTIFICATION, SHALL RESULT  IN  INELIGIBILITY  FOR  A  LICENSE
UNDER THIS ARTICLE FOR A PERIOD OF FIVE YEARS FOR THE PERSON OR PERSONS,
INCLUDING A PARTNERSHIP, A LIMITED LIABILITY COMPANY OR CORPORATION, AND
RELATED PERSON AS DEFINED IN THIS ARTICLE.
  C.  ANY OTHER PROVISION OF ANY OTHER LAW TO THE CONTRARY NOTWITHSTAND-
ING, TWO OR MORE CONVICTIONS OF ANY PERSON OR PERSONS, WITHIN  A  PERIOD
OF  ONE  YEAR,  FOR ANY OF THE OFFENSES DESCRIBED IN ARTICLE TWO HUNDRED
THIRTY OF THE PENAL LAW ARISING OUT OF CONDUCT ENGAGED IN AT  THE  BUSI-
NESS LOCATION OF AN APPEARANCE ENHANCEMENT BUSINESS SHALL BE PRESUMPTIVE
EVIDENCE  OF  CONDUCT  CONSTITUTING  USE OF THE PREMISES FOR PURPOSES OF
PROSTITUTION, AND SUCH BUSINESS LOCATION SHALL BE SUBJECT TO ANY AND ALL
OF THE ACTIONS, JURISDICTION, REMEDIES, AND  OTHER  PROVISIONS  PROVIDED
FOR IN TITLE TWO OF ARTICLE TWENTY-THREE OF THE PUBLIC HEALTH LAW.
  2.  AN APPEARANCE ENHANCEMENT BUSINESS MAY NOT BE OPERATED BETWEEN THE
HOURS OF MIDNIGHT AND FIVE  A.M.,  EXCEPT  THE  CASE  OF  AN  APPEARANCE
ENHANCEMENT  BUSINESS  LOCATED ON THE PREMISES OF A HEALTH CARE FACILITY
LICENSED OR PERMITTED BY THE STATE; A HOTEL, MOTEL, OR BED AND BREAKFAST
INN; A TIMESHARE PROPERTY; A PUBLIC AIRPORT; OR A PARI-MUTUEL  FACILITY;
OR  DURING  A  SPECIAL  EVENT IF THE COUNTY OR MUNICIPALITY IN WHICH THE
ESTABLISHMENT OPERATES HAS APPROVED SUCH OPERATION  DURING  THE  SPECIAL
EVENT;  PROVIDED  HOWEVER THAT ANY PROCEDURE PERFORMED BETWEEN THE HOURS
OF MIDNIGHT AND FIVE A.M. IN ANY OF THE PRECEDING  EXCEPTIONS  SHALL  BE
PERFORMED ONLY BY AN INDIVIDUAL LICENSED TO PERFORM SUCH PROCEDURE UNDER
THIS  ARTICLE.  A  PERSON  VIOLATING  THE PROVISIONS OF THIS SUBDIVISION
SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND  UPON  CONVICTION  SHALL  BE
PUNISHED  BY  IMPRISONMENT  FOR  SIX MONTHS OR BY A FINE OF FIVE HUNDRED
DOLLARS OR BOTH. A SECOND OR SUBSEQUENT VIOLATION  OF  THIS  SUBDIVISION
WITHIN A FIVE YEAR PERIOD SHALL BE DEEMED A CLASS E FELONY.
  3.  AN APPEARANCE ENHANCEMENT BUSINESS WHICH DOES NOT OFFER ALL OF THE
FOLLOWING SERVICES REQUIRED TO BE  LICENSED  PURSUANT  TO  THIS  ARTICLE
SHALL BE REQUIRED TO POST THE TOLL-FREE NUMBER, ADDRESS AND OTHER PERTI-
NENT  INFORMATION  AS  DETERMINED  AND  REQUIRED BY THE SECRETARY OF THE
NATIONAL HUMAN TRAFFICKING RESOURCE CENTER IN AN AREA EASILY  OBSERVABLE
TO  PATRONS,  EMPLOYEES,  AND  VISITORS: NAIL SPECIALTY, WAXING, NATURAL
HAIR STYLING, ESTHETICS OR  COSMETOLOGY,  AS  DEFINED  IN  SECTION  FOUR
HUNDRED OF THIS ARTICLE.

S. 2970                             4                            A. 4420

  4.  RESTRAINT  OF  UNLAWFUL ACTS BY APPEARANCE ENHANCEMENT BUSINESSES.
WHERE A VIOLATION OF THIS TITLE IS ALLEGED TO HAVE OCCURRED BY OR  AT  A
LICENSED  APPEARANCE  ENHANCEMENT  BUSINESS  OR  BY A PERSON OR PERSONS,
INCLUDING A PARTNERSHIP, A LIMITED LIABILITY COMPANY OR CORPORATION, WHO
HAVE  ENGAGED  IN  OR  FOLLOWED  THE  BUSINESS OR OCCUPATION OF, OR HELD
HIMSELF, HERSELF OR ITSELF OUT AS OR ACTED, TEMPORARILY OR OTHERWISE, AS
AN APPEARANCE ENHANCEMENT BUSINESS IN CITIES HAVING A POPULATION OF  ONE
MILLION  OR MORE, IN ADDITION TO THE ATTORNEY GENERAL OR THE DEPARTMENT,
THE CORPORATION COUNSEL MAY APPLY TO THE SUPREME COURT WITHIN THE  JUDI-
CIAL DISTRICT IN WHICH SUCH VIOLATION IS ALLEGED TO HAVE OCCURRED FOR AN
ORDER ENJOINING OR RESTRAINING COMMISSION OR CONTINUANCE OF THE UNLAWFUL
ACTS  COMPLAINED  OF.  THE  REMEDY  PROVIDED IN THIS SECTION SHALL BE IN
ADDITION TO ANY OTHER REMEDY PROVIDED  BY  LAW  OR  TO  THE  PROCEEDINGS
COMMENCED AGAINST A LICENSEE UNDER THIS TITLE.
  S  4. Subdivisions 4-b and 6 of section 1310 of the civil practice law
and rules, subdivision 4-b as added by chapter 655 of the laws  of  1990
and  subdivision  6  as  added  by  chapter 669 of the laws of 1984, are
amended to read as follows:
  4-b. "Specified felony offense" means:
  (a) a conviction of a  person  for  a  violation  of  section  220.18,
220.21, 220.41, [or] 220.43, 230.34 OR 135.35 of the penal law, or where
the  accusatory  instrument  charges  one  or  more  of  such  offenses,
conviction upon a plea of guilty to any of the felonies for  which  such
plea  is  otherwise  authorized  by  law or a conviction of a person for
conspiracy to commit a violation of section 220.18, 220.21,  220.41,  or
220.43  of  the penal law, where the controlled substances which are the
object of the conspiracy are located in the real property which  is  the
subject of the forfeiture action; or
  (b)  on  three  or  more occasions, engaging in conduct constituting a
violation of any of the felonies  defined  in  section  220.09,  220.16,
220.18,  220.21,  220.31,  220.34,  220.39, 220.41, 220.43 [or], 221.55,
230.34 OR 135.35 of the penal law, which violations do not constitute  a
single  criminal  offense as defined in subdivision one of section 40.10
of the criminal procedure law, or  a  single  criminal  transaction,  as
defined  in  paragraph  (a)  of  subdivision two of section 40.10 of the
criminal procedure law,  and  at  least  one  of  which  resulted  in  a
conviction  of  such offense, or where the accusatory instrument charges
one or more of such felonies, conviction upon a  plea  of  guilty  to  a
felony for which such plea is otherwise authorized by law; or
  (c)  a  conviction  of  a  person  for  a violation of section 220.09,
220.16, 220.34 [or], 220.39, 230.34 OR 135.35 of the  penal  law,  or  a
conviction  of a criminal defendant for a violation of section 221.30 of
the penal law, or where the accusatory instrument charges any such felo-
ny, conviction upon a plea of guilty to a felony for which the  plea  is
otherwise  authorized by law, together with evidence which: (i) provides
substantial indicia that the defendant used the real property to  engage
in a continual, ongoing course of conduct involving the unlawful mixing,
compounding,  manufacturing,  warehousing,  or  packaging  of controlled
substances or where the conviction is for a violation of section  221.30
of the penal law, marijuana, as part of an illegal trade or business for
gain;  and (ii) establishes, where the conviction is for possession of a
controlled substance or where the  conviction  is  for  a  violation  of
section  221.30  of  the  penal law, marijuana, that such possession was
with the intent to sell it.

S. 2970                             5                            A. 4420

  6. "Pre-conviction forfeiture crime" means only a  felony  defined  in
article  two  hundred  twenty  or section 221.30 [or], 221.55, 230.34 OR
135.35 of the penal law.
  S 5. This act shall take effect immediately.