DOS-09-15-00001-P Regulations Relating to Review of Original Applications

3/4/15 N.Y. St. Reg. DOS-09-15-00001-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 9

March 04, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. DOS-09-15-00001-P

Regulations Relating to Review of Original Applications

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Addition of section 160.13 to Title 19 NYCRR.

Statutory authority:

General Business Law, section 402(5)

Subject:

Regulations relating to review of original applications.

Purpose:

To clarify the Department's review procedures for new applicants seeking licensure pursuant to art. 27 of the GBL.

Text of proposed rule:

Section 160.13 is added to Title 19 of the NYCRR to read as follows:

a) In determining qualifications and fitness of an applicant for original licensure pursuant to article 27 of the New York General Business Law, the Secretary shall conduct a review of factors unrelated to prior criminal history, including, but not limited to:

(1) findings of violations related to any provision of Article 27 or any regulation adopted thereunder;

(2) findings of unlicensed practice of nail specialty, waxing, natural hair styling, esthetics or cosmetology;

(3) findings of failure to pay taxes or of tax liens; and

(4) findings of failure to pay child support.

Text of proposed rule and any required statements and analyses may be obtained from:

David A. Mossberg, Esq., New York State Dept. of State, 123 William Street, 20th Fl., New York, NY 10038, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. Statutory authority:

Section 402(5) of the New York General Business Law (“GBL”) authorizes the Secretary of State (the “Secretary”) to “[a]dopt such rules and regulations not inconsistent with the provisions of this article, as may be necessary with respect to the form and content of applications for licenses, the reception thereof, the investigation and examination of applicants and of prospective applicants taking examinations and their qualifications, and the other matters incidental or appropriate to the powers and duties of the secretary as prescribed by this article and for the proper administration and enforcement of the provisions of this article.”

2. Legislative objectives:

The purpose of Article 27 of the GBL is to protect the health and safety of the consumers of the services of the appearance enhancement industry and does so, in part, by establishing a system of licensure requiring adequate levels of training, examinations which test the fitness to perform licensed activities, and adequate health and safety requirements for licensees and appearance enhancement businesses. The Department finds that providing further clarity about what factors it considers in determining fitness would be helpful to applicants. The Department finds that an applicant’s prior criminal history is not sufficiently probative of such fitness as to warrant its consideration on an original application for licensure.

3. Needs and benefits:

The Department of State (the “Department”) has issued approximately 221,782 licenses pursuant to Article 27 of the GBL. Approximately 22,814 of these licenses are original licenses following submission of a non-renewal application. After reviewing the various types of documentation required for original licensure, the Department found that providing advance notice and clarity about the types of documentation required would be helpful. The Department also found that by restricting inquiry into prior criminal convictions the review time between submission and licensure could be shortened while maintaining adequate assurances of fitness to perform licensed activities. Accordingly, this regulation will benefit new applicants seeking licensure.

4. Costs:

a. Costs to regulated parties:

The Department does not anticipate that this proposal will impose any costs to the regulated parties.

b. Costs to the Department of State:

The Department does not anticipate any additional costs to implement the rule. Existing staff will address any inquiries regarding new application procedures.

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:

Section 406 of the GBL currently requires all applicants seeking licensure to submit an application in a form and manner prescribed by the Secretary. The proposed rule will ease current obligations on original applicants by clarifying the sort of information the Department would be considering. The rule also clarifies that applicants for original licensure will no longer be required to collect and submit documentation regarding past criminal convictions. Accordingly, this regulation will not impose any new paperwork obligations on the regulated parties.

7. Duplication:

This rule does not duplicate, overlap or conflict with any other state or federal requirement.

8. Alternatives:

It was determined that there were no existing regulations providing clarity on what sort of information the Department would consider when reviewing an original application for licensure. The Department therefore believes that this rulemaking is the best course of action to bring about the desired result, i.e., providing additional clarity to original applicants.

9. Federal standards:

There are no federal standards relating to this rule.

10. Compliance schedule:

These regulations will be effective upon publication of a Notice of Adoption in the New York State Register.

Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

As is evident by the nature of this rulemaking, this proposal affects applicants seeking original licensure pursuant to Article 27 of the New York General Business Law and will not adversely impact rural areas, jobs, small businesses or local governments and therefore does not require a Regulatory Flexibility Statement, Rural Area Flexibility Statement or Job Impact Statement.

This rule is intended to provide advance notice and clarity to original applicants seeking licensure of the information the Department of State will consider when reviewing applications. The rule will have a positive impact on interested parties seeking licensees by providing advance notice and clarity regarding the application review process, thereby possibly expediting the issuance of licenses. This rule will not impose an adverse economic impact or reporting, record keeping, or other compliance requirements on small businesses in rural or urban areas or on employment opportunities. No local government activities are involved.