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DOS-39-07-00005-E Notice of Hearing for a Disciplinary Action Against a Registered Security Guard
9/26/07 N.Y. St. Reg. DOS-39-07-00005-E
NEW YORK STATE REGISTER
VOLUME XXIX, ISSUE 39
September 26, 2007
RULE MAKING ACTIVITIES
DEPARTMENT OF STATE
EMERGENCY RULE MAKING
I.D No. DOS-39-07-00005-E
Filing No. 959
Filing Date. Sept. 07, 2007
Effective Date. Sept. 07, 2007
Notice of Hearing for a Disciplinary Action Against a Registered Security Guard
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 400.4(a) of Title 19 NYCRR.
Statutory authority:
General Business Law, section 89-o
Finding of necessity for emergency rule:
Preservation of public safety and general welfare.
Specific reasons underlying the finding of necessity:
This rule was adopted on an emergency basis to preserve the public safety and welfare. Security guards are employed for the protection of individuals and property, as well as the prevention and reporting of unlawful or unauthorized activity. Adoption of this rule permits the Department of State to serve the notice of hearing and complaint in administrative proceedings on security guards by certified mail, rather than pursuant to the CPLR as currently provided by 19 NYCRR Part 400. Especially in cases where the department is seeking to revoke or suspend a guard registration where a security guard has been charged with, or convicted of, a serious crime, this expedited service, which is similar to that required by other regulatory statutes, provides a greater measure of safety to the general public.
Subject:
Authorization of a method of service of a notice of hearing for disciplinary action against a registered security guard.
Purpose:
To expedite hearings involving disciplinary action against registered security guards.
Text of emergency rule:
An Amendment to 19 NYCRR Section 400.4(a) is adopted to read as follows:
Section 400.4 Commencement of disciplinary proceedings.
(a) Every adjudicatory proceeding which may result in a determination to revoke or suspend a license or to fine or reprimand a licensee will be commenced by the service of a notice of hearing together with a statement of charges (also known as a complaint), which shall consist of plain and concise statement which shall sufficiently give the administrative law judge and the respondent notice of the alleged misconduct of incompetence. Notice of hearing and statement of charges (or complaint) shall be communicated in any manner permitted by the applicable regulatory statute, or if no specific manner is designated by the applicable statute, by certified mail, or by any manner authorized by the Civil Practice Law and Rules. Respondent may, at his option, serve an answer denying such charges and interposing affirmative defenses, if any. Absent an answer, all charges are deemed denied and all rights are reserved.
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 December 5, 2007.
Text of emergency rule and any required statements and analyses may be obtained from:
Kenneth L. Golden, Department of State, 41 State St., Albany, NY 12231, (518) 474-6740
Regulatory Impact Statement
1. Statutory authority:
Article 7-A (Security Guard Act) of the General Business Law was enacted as Chapter 336 of the Laws of 1992. Section 89-g(1)(a) of Article 7-A prohibits employment of security guards unless it is established that they have obtained a valid registration card issued by the Department of State. Registration cards are issued only after the applicant has undergone an investigation and background check by the Division of Criminal Justice Services. Applicants charged or convicted of crimes are disqualified from being issued a registration card where the crime “bears a direct relationship to their employment” as a security guard. Applicants are notified of the proposed denial of their application by regular mail, and may request a hearing challenging the Department's determination. Notice of the hearing is served by registered mail or in any manner authorized by the Civil Practice law and Rules in accordance with General Business Law §§ 89-k and 79(2).
General Business Law § 89-l provides that current holders of a registration card who are charged or convicted of a crime are subject to disciplinary action, such as revocation, suspension, or the imposition of a fine, but only after being afforded a hearing held pursuant to the State Administrative Procedure Act. In accordance with rules adopted by the Secretary of State for the adjudication of disciplinary hearings, notice of the hearing may be served “in any manner permitted by the applicable statute or the Civil Practice Law and Rules.” Since no specific method of service is provided by § 89-l of the General Business Law, service must be made pursuant to the methods provided by the Civil Practice Law and Rules, resulting in delay and/or additional costs. General Business Law § 89-o authorizes the Secretary of State in consultation with the security guard advisory council to adopt rules and regulations implementing the provisions of Article 7-A. Accordingly, the Secretary of State has express authority to adopt this rule.
2. Legislative objectives:
In enacting Article 7-A of the General Business Law, the legislature described the increasing role of security guards in protecting individuals and property from “harm, theft and/or unlawful activity,” and found that the “proper screening, hiring and training of security guards is a matter of state concern and compelling state interest …,”1 and in the aftermath of the events of September 11, 2001, reinstated a federal fingerprint check on registered security guards to provide an additional measure of protection against potential harm from registrants who may have committed federal crimes or crimes in other jurisdictions that did not appear on the New York State records.2 As a result, background checks have revealed an even greater number of holders of security guard registration cards who may be subject to disciplinary action for crimes committed in other jurisdictions, and who are entitled to hearings to determine whether they should continue to perform security guard functions. This rule re-enforces the stated objectives of the Legislature when it enacted Article 7-A.
3. Needs and benefits:
General Business Law § 89-l provides that current holders of a registration card who are charged or convicted of a crime which “bears a direct relationship to their employment” are subject to disciplinary action, such as revocation, suspension, or the imposition of a fine, but only after being afforded a hearing held pursuant to the State Administrative Procedure Act. Notice of the hearing may be served “in any manner permitted by the applicable statute or the Civil Practice Law and rules.” Since no specific method of service is provided by § 89-l of the General Business Law, service must be made pursuant to the requirements of the Civil Practice Law and Rules, resulting in delay and/or additional costs. The public benefits from a timely and expedited determination of whether registered security guards charged or convicted of crimes pose an additional risk of harm to their safety or property.
4. Costs:
a. Costs to regulated parties:
The Department of State does not anticipate any additional costs to holders of registration cards by enactment of this rule.
b. Costs to the Department of State:
The Department of State anticipates that the cost and implementation and continued administration of this rule will be accomplished using existing resources.
c. Costs to State and local governments:
The rule does not otherwise impose any implementation or compliance costs on State or local governments.
5. Local government mandates:
The rule does not impose any program, service, duty or other responsibility on local governments.
6. Paperwork:
The rule does not require the securing, preparation, filing or maintenance of any additional papers or documents.
7. Duplication:
This rule does not duplicate, overlap or conflict with any other state or federal requirement.
8. Alternatives:
The current alternative to this rule requires that a holder of a registration card receive notice of a hearing seeking disciplinary action in any manner authorized by the Civil Practice Law and Rules. Those requirements necessitate either personal service or delivery and mailing of duplicate notices, which involves additional delays and costs in reaching a determination concerning the registrant's fitness to continue performing the functions of a security guard. This rule expedites the procedure for reaching that determination while affording the registrant notice and an opportunity to be heard on any proposed disciplinary measures.
9. Federal standards:
This rule meets all federal and constitutional standards for due process.
10. Compliance schedule:
The Department of State anticipates that the Division of Licensing Services will be able to comply immediately with this rule.
1McKinney's 1992 Session Laws of New York, Chapter 366, p. 1073
2McKinney's 2004 Sessions Law of New York, Chapter 699, p. 2147.
Regulatory Flexibility Analysis
1. Effect of rule:
The rule affects security guard companies, and those persons wishing to become registered as security guards, to the extent that they are subject to the enforcement provisions contained in Article 7-A of the General Business Law. However, it does not place any financial or additional burdens on such businesses who are already required to exercise “due diligence” in determining whether employees have been convicted of any offense that “bears such a relationship to the performance of the duties of a security guard, as to constitute a bar to employment …”
The rule does not apply to local governments.
2. Compliance requirements:
The reporting and recordkeeping requirements are currently mandated by General Business Law § 89-g, and are not altered by this rule.
The rule does not impose any compliance requirements on local governments.
3. Professional services:
Small businesses will not need professional services in order to comply with this rule. The rule does not impose any compliance requirements on local governments.
4. Compliance costs:
It is not anticipated that small businesses will incur any additional costs of compliance as a result of this rule.
The rule does not impose any compliance costs on local governments.
5. Economic and technological feasibility:
It is not anticipated that small businesses will incur any additional costs or require technical expertise as a result of implementation of this rule.
The rule does not affect local governments.
6. Minimizing adverse economic impact:
It is not anticipated that small businesses will incur any additional costs as a result of implementation of this rule, requiring the adoption of alternative practices.
The rule does not affect local governments.
7. Small business and local government participation:
Since the impact on small businesses will be minimal, and the rule would not affect local governments, the Department did not solicit comment prior to the adoption of this rule.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
This rule applies equally to holders of security guard registration cards in all areas of the state-urban, suburban and rural.
2. Reporting, recordkeeping and other compliance requirements:
Reporting and recordkeeping requirements are set forth fully in Section 2 of the Regulatory Flexibility Analysis for Small Business and Local Governments.
Holders of security guard registration cards in rural areas will not need to employ any additional professional services in order to comply with this rule.
3. Costs:
It is not anticipated that small businesses, whether located in urban, suburban or rural areas, will incur any additional costs of compliance as a result of this rule.
4. Minimizing adverse impact:
It is not anticipated that small businesses, whether located in urban, suburban or rural areas, will incur any additional costs of compliance requiring the adoption of alternative practices, as a result of this rule.
5. Rural area participation:
Since the impact on small businesses will be minimal and will apply equally throughout all areas of the state, whether urban, suburban or rural, the Department did not solicit comment prior to adoption of this rule.
Job Impact Statement
This rule will not have any substantial adverse impact on jobs and employment opportunities. Under existing law, applicants and current holders of a registration card charged or convicted of crimes are disqualified from being employed as security guards, where the crime “bears a direct relationship to their employment” as a security guard, and continued employment constitutes a danger to the health, safety or well-being of the public. Inasmuch as this rule affects only the method of notification of persons disqualified from employment as a security guard, or subject to disciplinary action, it promotes employment opportunities by ensuring that only those qualified for registration are employed in the protection of persons and their property.
