Senate Bill S390

2017-2018 Legislative Session

Enhances the regulation of the provision of services of guides and the outfitters who procure guides

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Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

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

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to environmental conservation
Jan 04, 2017	referred to environmental conservation

2017-S390 (ACTIVE) - Details

Current Committee:: Senate Environmental Conservation
Law Section:: Environmental Conservation Law
Laws Affected:: Amd §§11-0533, 71-0921 &71-0925, En Con L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S6663
2015-2016: S516

2017-S390 (ACTIVE) - Summary

Enhances the regulation of the provision of services of guides and the outfitters who procure guides.

2017-S390 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S390

 TITLE OF BILL :

An act to amend the environmental conservation law, in relation to
guides and outfitters

 PURPOSE :

The purpose of this bill is to amend the Environmental Conservation
Law (ECL) to amend the definition of a guide, prohibit the act of
guiding while under the influence of drugs or alcohol, and increase
penalty provisions related thereto.

 SUMMARY OF PROVISIONS :

Section 1 of this bill would rename the title of ECL § 11-0533 as
"Guides and Outfitters." It would amend ECL § 11-0533 (1) to clarify
the definition of a guide as an individual who offers services for
hire for recreational activities and to add kayaking to the list of
services and activities. It would also add a definition of "outfitter"
to mean any person soliciting to provide or providing guide services
for compensation. The section would also amend ECL § 11-0533 (5) to
provide that the fee for guide licenses shall not exceed two hundred
dollars for residents and establishes a new five hundred dollar fee
for non-residents. New ECL § 11-0533 (7) would prohibit outfitters

from providing unlicensed guides for guiding services, and add a new
requirement that guides and outfitters provide written disclosures
stating the terms of service to be provided.

Section 1 would prohibit any person from guiding while in an
intoxicated or impaired condition as defined in ECL § 11-1201,
prohibit outfitters from knowingly providing guides for service who
are or appear to be intoxicated or impaired, and make violations of
these provisions subject to the standards, procedures and penalties
established by ECL § 11-1205 and 11-1209.

This section would add submitting false documentation, or violating
the penal law while guiding to the list of reasons a guide's license
may be revoked and allows the Department to suspend a license for up
to two years or revoke a license following a hearing or opportunity to
be heard and establish certain circumstances when licenses could be
immediately suspended. This section would require the Department to
maintain a current list of licensed guides on the department's
website, instead of publishing it annually.

Section 2 of this bill would add a new subdivision 14 to ECL § 71-0921
to provide that a first violation of ECL § 11-0533 (2) (guiding
without a license), (7) (an outfitter providing an unlicensed guide)
or (10)(an outfitter knowingly providing guides who are intoxicated or
impaired) is a class 13 misdemeanor, punishable by a fine of no more
than $5,000 or imprisonment of no more than 90 days or both. Section 2
would also provide that a second violation or subsequent violations is
a class A misdemeanor, punishable by a fine of no more than $10,000 or
imprisonment of no more than one year or both. Lastly, for two or more
convictions or manslaughter or reckless endangerment, it would
authorize the Department or a court to revoke for a minimum of five
years a guide's license or the privilege of an outfitter to provide
guides.

Additionally, Section 2 would add a new subdivision 15 to ECL§ 71-0921
to provide that, in the case of two or more violations of ECL §
11-0533(7) or (10), or in the case of a conviction of reckless
endangerment or manslaughter by a person engaged in guiding activities
for an outfitter, the Department or a court may suspend that
outfitter's ability to provide guides. It would also provide that the
Department or a court may take the gravity of the offense into
consideration in deter- mining the length of the suspension.

Section 2 of this bill would add a new subdivision 16 to ECL § 71-0925
to provide that a violation of ECL § 11-0533(6) guiding while not
wearing your guide license in plain sight,) (7) or (8) f(failure to
provide a written disclosure of services) is a violation punishable by
a fine of no less than $500.

Section 3 Section 71-0921 of the environmental conservation law is
amended by adding three new subdivisions 14, 15 and 16

Section 4 provides that this bill would take effect immediately.

 EXISTING LAW :

ECL § 11-0533 was promulgated in 1985, and has not been amended since
that time. This statute defines the term "guide," establishes the
license fee, provides for certain requirements and punishments, and
requires the Department annually publish a list of guides.

 JUSTIFICATION :

In New York State, there are currently more than 2,100 licensed guides
who offer instructional services in recreational areas such as
fishing, hunting, whitewater rafting and camping. In many instances,
the individuals who contract with guides are inexperienced in a
particular recreational activity, some of which may be extremely
dangerous. For the safety and well being of all parties involved, it
is important to ensure that experienced and responsible guides are at
the helm.

It is essential that individuals engaged in guiding activities be
properly trained, fully licensed and not under the influence of drugs
and/or alcohol at the time they are providing these services. It is
equally critical that businesses which offer guides for service are
required to ensure that they offer only sober licensed guides.

In the fall of 2012, a licensed guide provided by a New York State
rafting company was charged with criminally negligent homicide after
being accused of rafting while intoxicated, resulting in the death of
a client. Earlier that spring the owner of the same rafting company
was charged with reckless endangerment after abandoning a raft full of
clients, leaving them to fend for themselves. The owner was able to
maintain his guiding license amid the charges. The ECL does not
currently prohibit acting as a guide while under the influence of
drugs or alcohol, and limits the reasons for revoking a guide's
license to violations of the ECL or providing false information to the
Department. These violations are only punishable by the revocation of
a guide's license for one year.

Multiple guiding associations have requested additional statutory
requirements that would address the issue of individuals guiding
without a license and to punish guides who partake in unethical
behavior such as failing to provide adequate guiding services, and
sometimes reckless behavior such as guiding while under the influence
of alcohol and drugs. Unlicensed and reckless guides endanger citizens
and create an unreasonable risk of injury and death.

Such behavior damages the reputation and livelihoods of highly
regarded guides and guiding associations who enforce strict member
guidelines, provide training programs, and work in conjunction with
the Department's Guide Licensing Program.

This proposal will add oversight of outfitters to ensure that licensed
guides are provided to tourists, and will add disclosure to consumers
that will ensure they know what services they are to receive. It would
subject those who engage in the act of guiding while in an intoxicated
or impaired condition to the same standards, procedures and
punishments as hunting while intoxicated. It would also establish more
stringent penalties when violations do occur to minimize the
possibility of tragedies occurring again.

 LEGISLATIVE HISTORY :

2015-2016: S.516 Referred to Environmental Conservation
2014: S.6663 Committed to Rules

 FISCAL IMPLICATIONS :

None

 LOCAL FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
This act shall take effect immediately.

2017-S390 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    390
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  LITTLE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Environmental Conservation
 
 AN ACT to amend the  environmental  conservation  law,  in  relation  to
   guides and outfitters

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 11-0533 of the environmental conservation  law,  as
 added by chapter 398 of the laws of 1985, is amended to read as follows:
 § 11-0533. [Licensing of guides] GUIDES AND OUTFITTERS.
   1. DEFINITIONS. As used in this section[, the term "guide"]:
   A. "GUIDE" shall mean [a person] AN INDIVIDUAL who offers services for
 hire  part  or  all  of which includes directing, instructing, or aiding
 another in fishing, hunting,  camping,  hiking,  white  water  canoeing,
 KAYAKING AND rafting, or rock and ice climbing.
   B.    "OUTFITTER"  SHALL  MEAN ANY PERSON SOLICITING TO PROVIDE OR WHO
 PROVIDES, FOR COMPENSATION, A GUIDE.
   2. All guides engaging in the business of guiding  on  all  lands  and
 waters  of  the  state shall possess a license issued by the department,
 except for any [persons]  INDIVIDUALS  operating  or  assisting  upon  a
 public  vessel  for  hire  (passenger carrying vessels), licensed by the
 United States Coast Guard or New York state, upon the Atlantic Ocean and
 all other marine and coastal waters, tidal waters including  the  Hudson
 river  up  to  the Troy barrier dam, St. Lawrence river, Great Lakes and
 the navigable portion of their tributaries, and other navigable  waters,
 as determined by the department.
   3. Except while guiding for the purposes of hunting and/or fishing, no
 license  as  defined  in section 11-0701 OF THIS ARTICLE is required for
 such acts.
   4. Employees of children's camps as  defined  in  subdivision  one  of
 section  one  thousand  four  hundred  of the public health law shall be
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD00036-01-7

 S. 390                              2
 
 exempt from the provisions of subdivisions one and two of this  section,
 provided  such  activities  are  carried  out  within  the scope of said
 employment.
   5.  A  license as required under subdivision two of this section shall
 be issued for a period of five calendar years and the fee therefor shall
 be established by the department, not to exceed two hundred dollars  FOR
 RESIDENTS AND FIVE HUNDRED DOLLARS FOR NON-RESIDENTS.
   6.  Every  licensed guide while engaged in guiding shall wear in plain
 sight identification furnished by the department. Licensed guides  shall
 be  at  least eighteen years of age. They shall be skilled in the use of
 boats and canoes whenever use of these craft is required  and  shall  be
 persons  competent to guide one or more of the following: camping, hunt-
 ing, fishing, hiking, white water canoeing/rafting, rock or ice climbing
 or other similar activities. The department shall by  regulation  estab-
 lish standards and procedures for testing and licensing of guides.
   7.  [Any] NO OUTFITTER SHALL PROVIDE FOR GUIDE SERVICES A GUIDE WHO IS
 NOT LICENSED PURSUANT TO THIS SECTION.
   8.  EVERY LICENSED GUIDE OR THE OUTFITTER PROVIDING  THE  SERVICES  OF
 SUCH  A  GUIDE  SHALL, PRIOR TO ENGAGING IN GUIDING OR PROVIDING A GUIDE
 FOR SERVICE, PROVIDE A WRITTEN DISCLOSURE OF THE TERMS OF EMPLOYMENT  OF
 THE GUIDE BY THE CLIENT, INCLUDING THE DATE, TIME PERIOD, COST AND CHAR-
 ACTER  OF  THE SERVICES TO BE PROVIDED. SUCH WRITTEN DISCLOSURE SHALL BE
 SIGNED BY THE CLIENT PRIOR TO THE PROVISION OF  GUIDE  SERVICES  AND  BE
 MAINTAINED  FOR INSPECTION BY THE GUIDE OR THE OUTFITTER FOR A PERIOD OF
 TWO YEARS.
   9. NO INDIVIDUAL SHALL ENGAGE  IN  GUIDING  WHILE  IN  AN  INTOXICATED
 CONDITION,  AS DEFINED IN SECTION 11-1201 OF THIS ARTICLE. NO INDIVIDUAL
 SHALL ENGAGE IN GUIDING WHEN HIS OR HER  ABILITY  TO  GUIDE  CREATES  AN
 UNREASONABLE  RISK  OF INJURY OR DEATH TO HIMSELF OR HERSELF, OR ANOTHER
 HUMAN LIFE. ANY INDIVIDUAL WHO GUIDES WHILE IN AN INTOXICATED  CONDITION
 OR AN IMPAIRED CONDITION, AS DEFINED IN SECTION 11-1201 OF THIS ARTICLE,
 SHALL  BE  SUBJECT  TO THE SAME RULES OF EVIDENCE, STANDARDS, PROCEDURES
 AND PENALTIES ESTABLISHED PURSUANT TO SECTIONS 11-1205  AND  11-1209  OF
 THIS ARTICLE AS IF HE OR SHE WERE HUNTING WHILE INTOXICATED.
   10.  NO OUTFITTER SHALL KNOWINGLY PROVIDE GUIDES WHO ARE, APPEAR TO BE
 OR ARE SUSPECTED TO BE IN  AN  INTOXICATED  OR  IMPAIRED  CONDITION,  AS
 DEFINED IN SECTION 11-1201 OF THIS ARTICLE.
   11.  FOR ANY licensed guide who violates any provision of this chapter
 or who makes any false statement OR SUBMITS FALSE DOCUMENTATION  in  his
 OR  HER  application for a license [shall], OR VIOLATES ANY PROVISION OF
 THE PENAL LAW WHILE GUIDING, in addition to any other penalties,  [imme-
 diately  surrender  his  license  to]  the  department[,  which] may [be
 revoked by the department] SUSPEND SUCH GUIDE'S LICENSE for up  to  [one
 year  following  the  date  of such surrender] TWO YEARS, OR REVOKE SUCH
 LICENSE; PROVIDED THAT SUCH SUSPENSION OR REVOCATION SHALL BECOME EFFEC-
 TIVE AFTER A  HEARING  OR  OPPORTUNITY  TO  BE  HEARD  PURSUANT  TO  THE
 PROVISIONS OF DEPARTMENT REGULATIONS, UNLESS A HEARING IS WAIVED BY SUCH
 GUIDE.  IF  THE ALLEGED VIOLATION IS FOR GUIDING WHILE IN AN INTOXICATED
 OR IMPAIRED CONDITION, OR THE GUIDE REFUSES TO TAKE  A  BREATH  TEST  OR
 CHEMICAL  TEST,  AND  THERE  WAS A THREAT OF HARM OR LOSS OF LIFE TO THE
 GUIDE'S CLIENT, THE  DEPARTMENT  MAY  IMMEDIATELY  SUSPEND  THE  GUIDE'S
 LICENSE  PENDING  ANY  PROSECUTION,  PROVIDED  THAT THE DEPARTMENT SHALL
 OFFER THE GUIDE AN OPPORTUNITY TO HAVE A HEARING  WITHIN  FIFTEEN  DAYS.
 FOR PURPOSES OF THIS SUBDIVISION, "THREAT OF HARM OR LOSS OF LIFE" SHALL
 INCLUDE  TAKING  A  CLIENT BOATING, KAYAKING, CANOEING, RAFTING, HUNTING

 S. 390                              3
 
 WITH A FIREARM OR BOW, ROCK CLIMBING OR ICE CLIMBING WHILE IN AN INTOXI-
 CATED OR IMPAIRED CONDITION.
   [8.]  12.  The  department  shall [publish] MAINTAIN a CURRENT list of
 LICENSED guides [annually] ON THE DEPARTMENT'S WEBSITE.
   § 2. Section 71-0921 of the environmental conservation law is  amended
 by adding three new subdivisions 14, 15 and 16 to read as follows:
   14.  VIOLATION  OF SUBDIVISION TWO, SEVEN OR TEN OF SECTION 11-0533 OF
 THIS CHAPTER SHALL, IN THE CASE OF A FIRST VIOLATION,  BE  GUILTY  OF  A
 MISDEMEANOR  AND,  UPON CONVICTION THEREOF, BE PUNISHED BY A FINE NOT TO
 EXCEED FIVE THOUSAND DOLLARS OR BY IMPRISONMENT FOR NOT MORE THAN NINETY
 DAYS, OR BY BOTH SUCH FINE AND IMPRISONMENT; IN THE CASE OF A SECOND  OR
 SUBSEQUENT  VIOLATION, SUCH PERSON SHALL BE GUILTY OF A MISDEMEANOR AND,
 UPON CONVICTION THEREOF, SHALL BE PUNISHED BY A FINE NOT TO  EXCEED  TEN
 THOUSAND  DOLLARS  OR  BY IMPRISONMENT FOR NOT MORE THAN ONE YEAR, OR BY
 BOTH SUCH FINE AND IMPRISONMENT.
   15. THE DEPARTMENT OR A COURT MAY, FOR CAUSE AND  AFTER  TWO  OR  MORE
 VIOLATIONS  OF SUBDIVISION SEVEN OR TEN OF SECTION 11-0533 OF THIS CHAP-
 TER, SUSPEND AN OUTFITTER'S PRIVILEGE TO PROVIDE GUIDES FOR AT LEAST ONE
 YEAR AND NO MORE THAN TEN YEARS.  IN  DETERMINING  THE  LENGTH  OF  SUCH
 SUSPENSION,  THE DEPARTMENT OR A COURT SHALL TAKE INTO CONSIDERATION THE
 SERIOUSNESS OF THE OFFENSE.
   16. THE DEPARTMENT OR A COURT MAY REVOKE THE LICENSE OF  A  GUIDE,  OR
 THE  PRIVILEGE OF AN OUTFITTER TO PROVIDE GUIDES, FOR NOT LESS THAN FIVE
 YEARS UPON A CONVICTION OF MANSLAUGHTER OR RECKLESS  ENDANGERMENT  WHILE
 GUIDING  BY  A  GUIDE OR BY A PERSON ACTING AS A GUIDE WHILE WORKING FOR
 THE OUTFITTER.
   § 3. Section 71-0925 of the environmental conservation law is  amended
 by adding a new subdivision 17 to read as follows:
   17.  IF  THE  VIOLATION  WAS  A VIOLATION OF SUBDIVISION SIX, SEVEN OR
 EIGHT OF SECTION 11-0533 OF THIS CHAPTER, NOT  LESS  THAN  FIVE  HUNDRED
 DOLLARS.
   § 4. This act shall take effect immediately.

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Senate Bill S390

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Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

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2017-S390 (ACTIVE) - Details

2017-S390 (ACTIVE) - Summary

2017-S390 (ACTIVE) - Sponsor Memo

2017-S390 (ACTIVE) - Bill Text download pdf

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Sponsored By

Betty Little

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

Actions

2017-S390 (ACTIVE) - Details

2017-S390 (ACTIVE) - Summary

2017-S390 (ACTIVE) - Sponsor Memo

2017-S390 (ACTIVE) - Bill Text download pdf

Comments