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

                                  5966

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              June 14, 2015
                               ___________

Introduced  by  Sen.  VENDITTO  --  (at request of the Governor) -- read
  twice and ordered printed, and when printed to  be  committed  to  the
  Committee on Rules

AN ACT to amend the general business law, in relation to authorizing the
  secretary  of  state  to  order the cessation of unlicensed appearance
  enhancement activity and to register trainees in the practice of  nail
  specialty

  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.  "TRAINEE" MEANS A PERSON PURSUING IN GOOD FAITH A COURSE OF STUDY
IN THE PRACTICE OF NAIL SPECIALTY UNDER THE  TUTELAGE,  SUPERVISION  AND
DIRECTION  OF  A  LICENSED  NAIL  PRACTITIONER.    SUCH TRAINEE SHALL BE
EMPLOYED BY A LICENSED APPEARANCE ENHANCEMENT BUSINESS.
  S 2. Subdivision 1 of section 401 of  the  general  business  law,  as
amended  by  chapter  341  of  the  laws  of 1998, is amended to read as
follows:
  1. No person shall engage in the practice of nail  specialty,  waxing,
natural  hair  styling,  esthetics or cosmetology, as defined in section
four hundred of this article,  without  having  received  a  license  to
engage  in  such  practice in the manner prescribed in this article.  NO
PERSON SHALL ACT AS A TRAINEE OR PERFORM ANY SERVICE AS SUCH  UNLESS  HE
OR SHE HAS OBTAINED A CERTIFICATE OF REGISTRATION PURSUANT TO THIS ARTI-
CLE.
  S  3.  Section  404 of the general business law, as amended by chapter
341 of the laws of 1998, is amended to read as follows:
  S 404. Rules and regulations. The secretary shall promulgate rules and
regulations which establish standards  for  practice  and  operation  by
licensees AND TRAINEES under this article in order to ensure the health,
safety  and  welfare of the public INCLUDING LICENSEES AND TRAINEES WHEN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12013-12-5
              

S. 5966                             2

THEY ARE WORKING WITHIN SUCH ESTABLISHMENTS.  Such rules and regulations
shall include, but not be limited to, the sanitary conditions and proce-
dures required to be maintained, a minimum standard of  training  appro-
priate to the duties of nail specialists, TRAINEES, waxers, natural hair
stylists,  estheticians, and cosmetologists and the provision of service
by nail specialists, TRAINEES, waxers, natural hair  stylists,  estheti-
cians  or  cosmetologists  at remote locations other than the licensee's
home provided that such practitioner  holds  an  appearance  enhancement
business  license  to  operate at a fixed location or is employed by the
holder  of  an  appearance  enhancement  business  license.  Regulations
setting  forth  the  educational  requirements  for nail specialists AND
TRAINEES shall include education in the area of causes of infection  and
bacteriology.  In  promulgating such rules and regulations the secretary
shall consult with the state education department, the advisory  commit-
tee  established  pursuant to this article, any other state agencies and
private industry representatives as may be  appropriate  in  determining
minimum training requirements.
  S  4.  Section  404-b of the general business law, as added by chapter
489 of the laws of 2010, is amended to read as follows:
  S 404-b. Nail specialty; owner responsibilities. In  addition  to  any
rules  and  regulations  establishing  standards for practices and oper-
ations by licensees under this article, in order to ensure  the  health,
safety  and welfare within appearance enhancement businesses, all owners
and operators of appearance enhancement businesses which  practice  nail
specialty shall make available[, upon request] FOR USE, gloves and face-
masks  for nail speciality licensees AND TRAINEES who work in such busi-
nesses. [No owner or operator of  any  appearance  enhancement  business
that  engages  in  the  practice  of  nail speciality shall prohibit any
licensee practicing nail specialty from wearing a mask or  gloves  while
engaged in the practice of nail specialty at such business.]
  S  5.  Subdivision  1  of  section  406 of the general business law is
amended by adding a new paragraph f to read as follows:
  F. NOTWITHSTANDING THE EDUCATIONAL REQUIREMENTS  OF  THIS  SECTION,  A
TRAINEE  MAY OBTAIN A LICENSE TO PRACTICE NAIL SPECIALTY IF SUCH TRAINEE
PROVIDES SATISFACTORY EVIDENCE TO THE SECRETARY THAT  SUCH  TRAINEE  HAS
BEEN  ACTIVELY ENGAGED IN A TRAINEESHIP FOR A PERIOD OF ONE YEAR AND HAS
COMPLETED A COURSE OF STUDY SET FORTH BY THE SECRETARY. SUCH  COURSE  OF
STUDY MAY BE DELIVERED BY ELECTRONIC MEANS.
  S 6. The general business law is amended by adding a new section 408-a
to read as follows:
  S  408-A. TRAINEE. 1. EACH APPLICANT FOR A CERTIFICATE OF REGISTRATION
AS A TRAINEE SHALL MAKE AN APPLICATION WHICH SHALL  INCLUDE  THE  PHYSI-
CIAN'S CERTIFICATE REQUIRED BY PARAGRAPH E OF SUBDIVISION ONE OF SECTION
FOUR HUNDRED SIX OF THIS ARTICLE, TWO RECENT PHOTOGRAPHS, AND SUCH OTHER
INFORMATION  REQUIRED  BY SUCH SECTION AND IN SUCH FORM AS THE SECRETARY
MAY PRESCRIBE.
  2. A CERTIFICATE OF REGISTRATION AS A TRAINEE SHALL BE FOR A PERIOD OF
ONE YEAR, RENEWABLE FOR A SECOND YEAR, AND MAY BE RENEWED FOR ADDITIONAL
TERMS WITHIN THE DISCRETION OF THE SECRETARY.
  3. EACH CERTIFICATE OF REGISTRATION ISSUED AS PROVIDED IN THIS SECTION
SHALL BE POSTED IN A CONSPICUOUS PLACE  IN  THE  APPEARANCE  ENHANCEMENT
BUSINESS  IN  WHICH  THE  TRAINEE IS ACTUALLY ENGAGED IN THE PRACTICE OF
NAIL SPECIALTY AS A TRAINEE.
  4. THE HOLDER OF A CERTIFICATE OF REGISTRATION AS A TRAINEE SHALL  NOT
BE ENTITLED TO AN APPEARANCE ENHANCEMENT BUSINESS LICENSE.

S. 5966                             3

  S 7. Subdivisions 3, 4, 5, 6 and 7 of section 409 of the general busi-
ness  law are renumbered subdivisions 4, 5, 6, 7 and 8, and a new subdi-
vision 3 is added to read as follows:
  3.  UPON  A DETERMINATION THAT IT IS IN THE BEST PUBLIC INTEREST TO DO
SO, THE SECRETARY MAY PROMULGATE RULES IMPOSING FEES NOT TO EXCEED TWEN-
TY DOLLARS FOR THE REGISTRATION AND RENEWAL OF  THE  REGISTRATION  OF  A
TRAINEE.
  S  8.  Subdivision  1  of  section 410 of the general business law, as
added by chapter 509 of the laws of the 1992,  is  amended  to  read  as
follows:
  1.  Suspension  and  revocation  of  licenses OR REGISTRATIONS; fines;
reprimands. A license OR REGISTRATION 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 REGISTRATION or permis-
sion 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 OR REGISTRATION as provided in this
article.
  e. Violation of any provision of this article, or of any rule or regu-
lation adopted hereunder.
  f. Conviction of any of the following crimes subsequent to  the  issu-
ance  of  a  license  OR  REGISTRATION 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  imprisonment  pursuant  to  sections  135.10,  135.20  and
135.25;  unlawful 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;  criminal  sale  of  a  weapon  pursuant  to sections 265.11 and
265.12; COMPELLING PROSTITUTION PURSUANT TO SECTION  230.33;  SEX  TRAF-
FICKING PURSUANT TO SECTION 230.34; 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  criminal  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 success-
ful rehabilitation to remove the disability has been issued.
  Provided,  however,  a fine shall not be imposed for the causes speci-
fied in paragraph f of this subdivision.
  In lieu of or in conjunction with the suspension or  revocation  of  a
license  OR  REGISTRATION,  or the imposition of a fine pursuant to this

S. 5966                             4

section, the secretary may issue a reprimand. When a license  OR  REGIS-
TRATION  issued  pursuant  to  this  article is revoked, such license OR
REGISTRATION shall not be reinstated or reissued until after the expira-
tion  of  a  period  of  one  year  from the date of such revocation. No
license OR REGISTRATION shall be issued after a second revocation.
  S 9. Subdivision 2 of section 410 of  the  general  business  law,  as
amended  by  chapter  324 of the laws of the 1998, is amended to read as
follows:
  2. Unlicensed activities. a. The secretary may issue an order  direct-
ing  the  cessation  of  any activity RELATED TO NAIL SPECIALTY, WAXING,
NATURAL HAIR STYLING, ESTHETICS OR COSMETOLOGY for which  a  license  is
required  by this article upon a determination that a person, [including
a] partnership, [a] limited liability company or  BUSINESS  corporation,
[has  engaged]  ENGAGING in [or followed] the business or occupation of,
or [held] HOLDING himself, HERSELF or itself out as or acted,  temporar-
ily  or  otherwise, as a nail specialist, natural hair stylist, estheti-
cian[,] OR cosmetologist [or  appearance  enhancement  business]  within
this  state  without  a  valid license being in effect. The [department]
SECRETARY shall, before making such determination and order, afford such
person, partnership, limited liability company or  BUSINESS  corporation
an  opportunity to be heard in person or by counsel in reference thereto
in an adjudicatory proceeding held pursuant to  [this  article]  SECTION
FOUR HUNDRED ELEVEN OF THIS ARTICLE AS APPLICABLE.
  b.    NOTWITHSTANDING  ANY PROVISION TO THE CONTRARY, IF THE SECRETARY
FINDS THAT A PERSON, PARTNERSHIP, LIMITED LIABILITY COMPANY OR  BUSINESS
CORPORATION,  IS  HOLDING HIMSELF, HERSELF OR ITSELF OUT AS OR IS ACTING
AS, TEMPORARILY OR OTHERWISE, AN APPEARANCE ENHANCEMENT BUSINESS  WITHIN
THIS  STATE  WITHOUT  A  VALID  LICENSE, THE SECRETARY SHALL PROVIDE THE
PERSON, PARTNERSHIP, LIMITED LIABILITY COMPANY OR  BUSINESS  CORPORATION
WITH  A  WRITTEN  NOTICE OF VIOLATION AND COMPLAINT, AND SHALL AFFORD AN
OPPORTUNITY TO BE HEARD, EITHER IN  PERSON  OR  BY  COUNSEL,  BEFORE  AN
ADMINISTRATIVE LAW JUDGE NO SOONER THAN THREE DAYS FROM DELIVERY OF SUCH
NOTICE  OF  VIOLATION. IF DOCUMENTARY PROOF THAT THE DEFICIENCY HAS BEEN
CURED IS NOT PROVIDED TO  THE  SECRETARY  AT  OR  BEFORE  SUCH  HEARING,
FOLLOWING  A  HEARING  DETERMINATION  THAT  UNLICENSED  ACTIVITIES  HAVE
OCCURRED, THE SECRETARY MAY  ISSUE  AN  IMMEDIATE  ORDER  DIRECTING  THE
CESSATION OF ANY ACTIVITY FOR WHICH AN APPEARANCE ENHANCEMENT LICENSE IS
REQUIRED.
  C.  THE  SECRETARY  MAY  ISSUE AN ORDER DIRECTING THE CESSATION OF ANY
ACTIVITY IF THE SECRETARY FINDS THAT A PERSON, INCLUDING A  PARTNERSHIP,
A LIMITED LIABILITY COMPANY OR BUSINESS CORPORATION, IS HOLDING HIMSELF,
HERSELF  OR  ITSELF OUT AS OR IS ACTING AS, TEMPORARILY OR OTHERWISE, AN
APPEARANCE ENHANCEMENT BUSINESS WITHIN THE STATE WITHOUT A (I)  BOND  OR
(II)  LIABILITY INSURANCE OR LIABILITY COVERAGE WHICH IS COVERED THROUGH
A BOND. THE SECRETARY SHALL, BEFORE MAKING SUCH DETERMINATION AND ORDER,
AFFORD SUCH PERSON, PARTNERSHIP, LIMITED LIABILITY COMPANY  OR  BUSINESS
CORPORATION AN OPPORTUNITY TO BE HEARD IN PERSON OR BY COUNSEL IN REFER-
ENCE THERETO IN AN ADJUDICATORY PROCEEDING HELD PURSUANT TO SECTION FOUR
HUNDRED ELEVEN OF THIS ARTICLE.  THE ENFORCEMENT OF THIS PROVISION SHALL
REQUIRE  THE  DEPARTMENT  OF FINANCIAL SERVICES TO CERTIFY IN WRITING TO
THE SECRETARY THAT ANY BONDS OR LIABILITY INSURANCE THAT IS REQUIRED  BY
THE DEPARTMENT IS READILY AVAILABLE TO APPEARANCE ENHANCEMENT BUSINESSES
FROM THE MARKET PLACE.
  D.  The  attorney  general,  acting  on  behalf  of the secretary, may
commence an action or proceeding in a court of competent jurisdiction to
obtain a judgment against such person,  partnership,  limited  liability

S. 5966                             5

company or BUSINESS corporation in an amount equal to that assessed as a
civil  penalty.  Said  judgment  shall  thereafter be enforceable by any
means authorized by the civil practice law and rules.
  E.  WHERE  AN  APPEARANCE  ENHANCEMENT  BUSINESS OPERATOR CONTINUES TO
OPERATE WITHOUT A LICENSE FOLLOWING THE ISSUANCE  OF  AN  ORDER  BY  THE
SECRETARY DIRECTING CESSATION, THE ATTORNEY GENERAL, ACTING ON BEHALF OF
THE SECRETARY, MAY COMMENCE AN ACTION OR PROCEEDING IN A COURT OF COMPE-
TENT  JURISDICTION  AGAINST  SUCH  OPERATOR TO OBTAIN AN ORDER ENJOINING
FURTHER OPERATION OF SUCH BUSINESS. AN APPEARANCE  ENHANCEMENT  BUSINESS
THAT HAS BEEN ORDERED TO CEASE OPERATION SHALL NOT RE-OPEN WITHOUT FIRST
OBTAINING  A LICENSE AS REQUIRED BY THIS ARTICLE AND PAYING ANY ASSESSED
FINES.
  S 10. Subdivisions 1 and 2 of section 411 of the general business law,
subdivision 1 as added by chapter 509 of the laws of 1992, and  subdivi-
sion 2 as amended by chapter 134 of the laws of the 2000, are amended to
read as follows:
  1.  Denial  of  license  OR REGISTRATION. The department shall, before
making a final determination to deny an application  for  a  license  OR
REGISTRATION,  notify  the  applicant in writing of the reasons for such
proposed denial and shall afford the  applicant  an  opportunity  to  be
heard  in  person or by counsel prior to denial of the application. Such
notification shall be served personally or by certified mail or  in  any
manner  authorized  by the civil practice law and rules for service of a
summons. If a hearing is requested, such hearing shall be held  at  such
time  and  place  as  the department shall prescribe.   If the applicant
fails to make a written request for a hearing within thirty  days  after
receipt  of  such  notification,  then  the notification of denial shall
become the final determination of the department. The department, acting
by such officer or person in the department as the secretary may  desig-
nate,  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 deposition to be taken.  A
subpoena issued under this section shall be regulated by the civil prac-
tice  law  and rules. If, after such hearing, the application is denied,
written notice of  such  denial  shall  be  served  upon  the  applicant
personally or by certified mail or in any manner authorized by the civil
practice law and rules for the service of a summons.
  2.  Revocation,  suspension, reprimands, fines; unlicensed activities.
The department shall, before  revoking  or  suspending  any  license  OR
REGISTRATION or imposing any fine or reprimand on the holder thereof, or
before  issuing  any  order directing the cessation of unlicensed activ-
ities, and at least ten days prior to the  date  set  for  the  hearing,
notify  in  writing  the  holder of such license OR REGISTRATION, or the
person alleged to have engaged in unlicensed OR UNREGISTERED activities,
of any charges made and shall afford such person 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 licensee OR REGIS-
TRANT or person charged, or by mailing same by  certified  mail  to  the
last  known  business  or  other  address provided by such person to the
secretary of state, or by any method authorized by  the  civil  practice
law  and rules for the service of a summons. The hearing on such charges
shall be at such time and place as the department shall prescribe.
  S 11. Section 412 of the general business law, as amended  by  chapter
341 of the laws of 1998, is amended to read as follows:
  S  412. [Civil penalties] PENALTIES.  1. The practice of nail special-
ty, waxing, natural hair styling,  esthetics  or  cosmetology[,  or  the

S. 5966                             6

operation  of  an  appearance enhancement business] without a license or
while under suspension or  revocation,  or  in  violation  of  an  order
directing  the  cessation of unlicensed activity issued by the secretary
pursuant  to  section  FOUR  HUNDRED  TEN OR four hundred eleven of this
article, is a violation and is subject to a civil penalty of up to  five
hundred  dollars  for  the  first  violation; one thousand dollars for a
second such violation; and two thousand five hundred dollars for a third
violation and any subsequent violation.
  2. THE FOLLOWING VIOLATIONS SHALL BE DEEMED SEPARATE OFFENSES  AND  BE
DEEMED A MISDEMEANOR, AND UPON CONVICTION, SHALL BE PUNISHABLE BY IMPRI-
SONMENT FOR NOT MORE THAN SIX MONTHS, OR BY A FINE OF UP TO TWO THOUSAND
FIVE HUNDRED DOLLARS OR BY BOTH SUCH FINE AND IMPRISONMENT:
  (A)  THE  OPERATION  OF  AN  APPEARANCE ENHANCEMENT BUSINESS WITHOUT A
LICENSE OR WHEN SUCH LICENSE HAS BEEN SUSPENDED OR REVOKED; OR
  (B) THE OPERATION OF AN APPEARANCE ENHANCEMENT BUSINESS  IN  VIOLATION
OF AN ORDER DIRECTING THE CESSATION OF UNLICENSED ACTIVITY ISSUED BY THE
SECRETARY PURSUANT TO SECTION FOUR HUNDRED TEN OF THIS ARTICLE.
  3.  THE  OPERATION OF AN APPEARANCE ENHANCEMENT BUSINESS WITHOUT A (A)
BOND OR (B) LIABILITY INSURANCE OR LIABILITY COVERAGE WHICH  IS  COVERED
THROUGH A BOND SHALL BE PUNISHABLE BY A CIVIL PENALTY OF UP TO TWO THOU-
SAND  FIVE  HUNDRED  DOLLARS.  THE  ENFORCEMENT  OF THIS PROVISION SHALL
REQUIRE THE DEPARTMENT OF FINANCIAL SERVICES TO CERTIFY  IN  WRITING  TO
THE  SECRETARY THAT ANY BONDS OR LIABILITY INSURANCE THAT IS REQUIRED BY
THE DEPARTMENT IS READILY AVAILABLE TO APPEARANCE ENHANCEMENT BUSINESSES
FROM THE MARKET PLACE.
  S 12. This act shall take effect immediately; provided,  however  that
the  provisions  set  forth in paragraph (c) of subdivision 2 of section
410 of the general business law as added by section nine of this act and
subdivision 3 of section 412 of the general business  law  as  added  by
section  eleven  of this act shall take effect on the sixtieth day after
the department of financial services has certified  in  writing  to  the
secretary  of  state  that  any  bonds  or  liability  insurance that is
required by the department of state is readily available  to  the  busi-
nesses from the market place.