DOS-35-15-00004-E Mandatory Public Posting of Notices of Violations
10/28/15 N.Y. St. Reg. DOS-35-15-00004-E
NEW YORK STATE REGISTER
VOLUME XXXVII, ISSUE 43
October 28, 2015
RULE MAKING ACTIVITIES
DEPARTMENT OF STATE
EMERGENCY RULE MAKING
I.D No. DOS-35-15-00004-E
Filing No. 887
Filing Date. Oct. 09, 2015
Effective Date. Oct. 09, 2015
Mandatory Public Posting of Notices of Violations
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 160.39 to Title 19 NYCRR.
Statutory authority:
Executive Law, section 91; General Business Law, sections 402(5) and 404
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The Department of State (“Department”) is charged, inter alia, with the enforcement of New York General Business Law (“NY GBL”) Article 27, which relates to the appearance enhancement industry. A principal purpose behind the enactment of Article 27 was to provide a system of licensure of appearance enhancement businesses and operators that would both allow for the greatest possible flexibility in the establishment of regulated services and implement measures to protect the consumer. Adequate requirements for maintaining public health and safety standards and for ensuring financial responsibility with respect to businesses are important elements of such a system. Consistent with this legislative intent of Article 27, the Department is empowered to issue orders directing the cessation of unlicensed activity by businesses and operators whose continued unlicensed operations pose a potential threat to the general welfare of the public. On July 15, 2015, Governor Cuomo signed into law new legislation (S.5966) which, among other things, increased the penalties for operating without an appropriate license. The new law now makes the operation of an unlicensed appearance enhancement business a misdemeanor, which indicates the danger the unlicensed operation of these businesses represents and further supports continuation of this emergency regulation.
To combat the dangers associated with the unlicensed operations of appearance enhancement businesses and to help ensure that the public is aware that such unlicensed businesses and/or unlicensed operators are not permitted to offer appearance enhancement services, which require close personal contact between providers and the consumer, the Department finds that it is necessary to continue to require public postings of Notices of Violations seeking orders directing the cessation of unlicensed activities. The enhancement of public safety, health and general welfare necessitates the re-adoption of this regulation on an emergency basis. The Department finds that greater public awareness regarding such unlawful activity should reduce the potential risk of injury posed by such unlicensed businesses and persons. This rule was originally filed on an emergency basis on May 18, 2015 and first appeared in the State Register on June 3, 2015. On August 14, 2015, the Department filed an emergency re-adoption of this rule along with a notice of proposed rulemaking; that submission appeared in the State Register on September 2, 2015.
Subject:
Mandatory public posting of Notices of Violations.
Purpose:
To inform the public that the Department of State has commenced an enforcement proceeding against an unlicensed business.
Text of emergency rule:
Section 160.39 is added to Title 19 of the NYCRR to read as follows:
Section 160.39. Notification of Proceeding to Direct Cessation of Unlicensed Activity
(a) All businesses and operators served with a Notice of Violation relating to unlicensed activity pursuant to Article 27 of the New York General Business Law shall immediately affix a copy of such notice on the front window, door or exterior wall of the business. The Notice of Violation shall be within five feet of the front door or other opening to the business where customers enter from the street, at a vertical height no less than four feet and no more than six feet from the ground or floor. An establishment without a direct entrance from the street shall post such Notice of Violation at its immediate point of entry in a place where consumers are likely to see it.
(b) Such Notice of Violation shall not be removed except when authorized by the Department.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. DOS-35-15-00004-EP, Issue of September 2, 2015. The emergency rule will expire December 7, 2015.
Text of rule and any required statements and analyses may be obtained from:
David Mossberg, NYS Dept. of State, 123 William St., 20th Fl., New York, NY 10038, (212) 417-2063, email: david.mossberg@dos.ny.gov
Regulatory Impact Statement
1. Statutory Authority:
New York Executive Law § 91 and New York General Business Law (“GBL”) §§ 402(5); 404 and 405(2). Section 91 of the Executive Law authorizes the Secretary of State to: “adopt and promulgate such rules which shall regulate and control the exercise of the powers of the department of state.” In addition, Sections 401(5) and 404 of the GBL authorize the Secretary of State to promulgate rules specifically relating to the appearance enhancement industry. Sections 401; 410(2) and 412 prohibit providing appearance enhancement services without an appropriate license.
2. Legislative Objectives:
Article 27 of the GBL was enacted; inter alia, to provide a system of licensure of appearance enhancement businesses and operators that would allow for the greatest possible flexibility in the establishment of regulated services, while establishing measures to protect members of the public, including those who work in the industry. Consistent with this legislative intent, the Department is empowered to issue regulations that accomplish these purposes.
3. Needs and Benefits:
This rule is needed to provide greater public awareness regarding unlawful and potentially dangerous activities. Mandating public posting of findings of unlicensed activities and Notices of Violations will benefit the public by providing notice that the services that they may be receiving are being performing in contravention of law.
4. Costs:
a. Costs to Regulated Parties:
The Department does not anticipate any costs to regulated parties. The Department will provide Notices of Violations to parties who are impacted by this regulation. The Department anticipates that some unlicensed businesses and operators will suffer some loss of business, however the intent of the regulation is to curb unlawful activity; accordingly, the Department finds any loss of business associated with unlawful activity to be appropriate.
b. Costs to the Department of State, the State, and Local Governments:
The Department does not anticipate any additional costs to implement the rule. Existing staff will manage issuing Notices of Violations. Further, the Department has sufficient funds to produce Notice of Violation forms.
5. Local Government Mandates:
The rule does not impose any program, service, duty or responsibility upon any county, city, town, village, school district or other special district.
6. Paperwork:
This rule does not impose any new paperwork requirement. The Department will be issuing the Notices required pursuant to this rule. Affected entities are only required to post the same publically.
7. Duplication:
This rule does not duplicate, overlap or conflict with any other state or federal requirement.
8. Alternatives:
The Department considered not proposing the instant rulemaking. It was determined, however, that this rule is needed to protect the general welfare of the public who seek appearance enhancement services.
Requiring public posting will allow consumers to make informed decisions regarding the services that they may be receiving.
9. Federal Standards:
The proposed addition does not exceed any minimum standards of the federal government for the same or similar subject areas.
10. Compliance Schedule:
As stated in the emergency rule, this rule will be effective immediately.
Regulatory Flexibility Analysis
1. Effect of rule:
This rule requires public postings of Notices of Violations issued by the Department of State. The Department believes that the rule will provide greater public awareness of unlawful and potentially dangerous activities. Specifically, the rule will require persons and businesses who operate without a license and who have been served with a Notice of Violation to post the same. The rule applies to businesses that offer appearance enhancement services as well as to persons who engage in the following practices: nail specialty, waxing, natural hair styling, esthetics or cosmetology. Given that this rule applies to persons and businesses who are already operating unlawfully, the Department is not able to accurately estimate the number that will be affected by this rule.
2. Compliance requirements:
This rule requires that unlicensed persons and businesses subject to an administrative proceeding, commenced by the Department seeking an order directing the cessation of unlicensed activities, publically post a Notice of Violation in a manner which will inform the public of the same.
3. Professional services:
The Department does not anticipate the need for professional services.
4. Compliance costs:
The rule itself will not impose any cost on affected parties. The Department will provide appropriate notices for posting. The Department believes that once such notices are issued, previously unlicensed persons and businesses will seek an appropriate license. Pursuant to Article 27 of the General Business Law, the cost to obtain an appropriate license (depending on whether an examination is required) ranges from $45.00 to $60.00. Such costs do not include other fees, such as any education requirements or other business filings, which may be required.
5. Economic and technological feasibility:
The rule itself requires that unlicensed persons and business subject to a pending administrative hearing publically post notices of the same for the public benefit. Insomuch as the notices will be produced and provided by the Department, complying with this rule is both economically and technically feasible.
6. Minimizing adverse impact:
The Department did not identify any feasible alternatives which would achieve the results of the proposed rule and, at the same time, be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, and several advocacy groups and finds this rule necessary for the wellbeing of the public who seek appearance enhancement services.
7. Small business and local government participation:
The Department, in conjunction with other state agencies, has consulted with small business interests which may be affected by this rule. In addition, the Department has conducted significant outreach to inform the public regarding this rule, including posting this rule on the Department’s website and participating in a public forum detailing, inter alia, the purpose of this rule. Publication of the rule in the State Register will provide further notice of the proposed rulemaking to all interested parties. Additional comments will be received and entertained during the public comment period associated with this rulemaking.
8. Compliance:
As stated in the emergency rule, this rule is effective immediately.
9. Cure period:
The Department is not providing for a cure period prior to enforcement of these regulations. The Department finds that immediate posting of unlawful activity will help protect the public and as such a cure period is not appropriate.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The rule will apply to all unlicensed persons and business operating in the State of New York in rural and urban areas.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The rule requires unlicensed persons and businesses subject to a pending administrative proceeding seeking the cessation of unlicensed activity to post such notices so that they can be viewed by the public which may be seeking appearance enhancement services. No professional services are required to comply with this rule. No different or additional requirements are applicable exclusively to rural areas of the state.
3. Costs:
The rule itself will not impose any cost on affected parties. The Department will provide appropriate notices for posting. The Department believes that once such notices are issued, previously unlicensed persons and businesses will seek an appropriate license. Pursuant to Article 27 of the General Business Law the cost to obtain an appropriate license (depending on whether an examination is required) ranges from $45.00 to $60.00. Such costs do not include other fees such as any education requirements or other business filings which may be required.
4. Minimizing adverse impact:
The proposed rulemaking will improve the safety and wellbeing of the general public throughout the state, including rural areas that seek appearance enhancement services. The Department has consulted with Department of Labor, Department of Health, and several advocacy groups, but did not identify any feasible alternatives which would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.
5. Rural area participation:
No significant comments have been received regarding this rulemaking. Publication of the Notice in the State Register will provide notice to all interested parties, including those in rural areas. Additional comments received on this rulemaking will be considered and assessed during imminent Proposed Rule Making process on this matter.
Job Impact Statement
1. Nature of impact:
This rulemaking requires that unlicensed businesses and operators publicly post Notices of Violations seeking the cessation of unlicensed activity. Insomuch as the group affected by this rule is operating in violation of law, this rulemaking will not impact lawful business activities. The Department anticipates that some unlicensed businesses and operators will suffer some loss of business; however, the intent of the regulation is to curb unlawful activity. Accordingly, the Department finds any loss of business associated with unlawful activity to be appropriate.
2. Categories and numbers affected:
This rulemaking will affect all unlicensed persons and businesses operating in the state. Given the nature of the activities affected by this rule, the Department cannot estimate the number of unlawful operators and businesses in the state.
3. Regions of adverse impact:
The proposed rulemaking will not have any disproportionate regional adverse impact on jobs or lawful employment opportunities.
4. Minimizing adverse impact:
The Department considered not proposing the instant rulemaking. It was determined, however, that this rule is immediately needed to protect the general welfare of the public that seeks appearance enhancement services. The Department consulted with Department of Labor, Department of Health, and several advocacy groups but did not identify any alternatives which would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.
Assessment of Public Comment
The agency received no public comment since publication of the last assessment of public comment.
