DOS-22-15-00008-E Mandatory Public Posting of Notices of Violations

6/3/15 N.Y. St. Reg. DOS-22-15-00008-E

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 22

June 03, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

EMERGENCY RULE MAKING

 

I.D No. DOS-22-15-00008-E

Filing No. 390

Filing Date. May. 18, 2015

Effective Date. May. 18, 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. Providing appearance enhancement services without an appropriate license is a violation and may result in 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.

To combat the dangers associated with unlicensed appearance enhancement operations and to help ensure that the public is aware that such businesses and/or persons 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 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 promulgation 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.

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 this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire August 15, 2015.

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

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

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

A Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not submitted, but will be published in the Register within 30 days of the rule's effective date.

Assessment of Public Comment

The agency received no public comment since publication of the last assessment of public comment.