A07630 Summary:

BILL NOA07630A
 
SAME ASSAME AS S05966
 
SPONSORKim
 
COSPNSRRosenthal, Robinson, Cook, Lifton, Schimel, Nolan, Jaffee, Simotas, DenDekker, Quart, Ortiz, Gjonaj, Galef, Braunstein
 
MLTSPNSR
 
Amd Gen Bus L, generally
 
Relates to authorizing the secretary of state to order the cessation of unlicensed appearance enhancement activity and to register trainees in the practice of nail specialty.
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A07630 Actions:

BILL NOA07630A
 
05/20/2015referred to economic development
06/14/2015amend (t) and recommit to economic development
06/14/2015print number 7630a
06/16/2015reported referred to codes
06/16/2015reported referred to ways and means
06/17/2015reported referred to rules
06/17/2015reported
06/17/2015rules report cal.623
06/17/2015ordered to third reading rules cal.623
06/18/2015substituted by s5966
 S05966 AMEND= VENDITTO
 06/14/2015REFERRED TO RULES
 06/17/2015ORDERED TO THIRD READING CAL.1796
 06/17/2015PASSED SENATE
 06/17/2015DELIVERED TO ASSEMBLY
 06/17/2015referred to ways and means
 06/18/2015substituted for a7630a
 06/18/2015ordered to third reading rules cal.623
 06/19/2015passed assembly
 06/19/2015returned to senate
 07/14/2015DELIVERED TO GOVERNOR
 07/16/2015SIGNED CHAP.80
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A07630 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7630A
 
SPONSOR: Kim (MS)
  TITLE OF BILL: An act to amend the general business law, in relation to authorizing the secretary of state to order the cessation of unli- censed appearance enhancement activity and to register trainees in the practice of nail specialty   PURPOSE: This bill would amend Article 27 of the General Business Law ("GBL") to authorize the Secretary of State ("Secretary") to order the cessation of unlicensed appearance enhancement activity. This bill would also author- ize the Department of State ("Department") to register trainees in the practice of nail specialty.   SUMMARY OF PROVISIONS: Section 1 of the bill would amend GBL § 400 to define a "trainee" as someone pursuing, in good faith, a course of study in the practice of nail specialty under the tutelage and supervision of a licensed nail practitioner. A trainee must also be employed by a licensed appearance enhancement business. Section 2 of the bill would amend GBL § 401 to assure that no person shall act as a trainee or perform any service without having first registered with the Department. Section 3 of the bill would amend GBL § 404 to authorize the Secretary to promulgate rules and regulations to protect the health, safety and welfare of appearance enhancement licensees and trainees. Section 4 of the bill would amend GBL § 404-b to require appearance enhancement businesses to make gloves and face masks available to nail salon employees and trainees. Section 5 of the bill would amend GBL § 406 to grant a trainee a nail specialty license after he or she has been actively engaged in an apprenticeship for a period of one year and has taken a course of study set forth by the Secretary. Section 6 of the bill would add a new GBL § 408-a to set forth require- ments and restrictions related to trainee registration. A certificate for registration as a trainee shall be for one year, renewable for a second year, and may be renewed for additional terms at the Secretary's discretion. Section 7 of the bill would amend GBL § 409 to allow the Secretary to impose a fee not to exceed $20 for trainee registration if the Secretary determines that it is in the public's best interest to do so. Section 8 of the bill would amend GBL § 410 to allow the Secretary to suspend or revoke a registration issued to a trainee. This section would also add compelling prostitution and sex trafficking to the list of crimes for which a license or registration may be suspended or revoked. Section 9 of the bill would amend GBL § 410 to authorize the Secretary to issue a notice of violation to an appearance enhancement practitioner or business operating without a valid license and subject them to an adjudicatory proceeding. Appearance enhancement businesses would be afforded an opportunity to be heard no sooner than three days from delivery of such notice of violation. Practitioners would be afforded an opportunity to be heard no sooner than ten days from delivery of such notice of violation. If documentary proof that the deficiency is cured is not provided at or before such hearing, the Secretary may issue an immediate order directing the cessation of any activity for which an appearance enhancement license is required. Section 9 of the bill would further amend GBL § 410 to subject an appearance enhancement business operating without a bona or liability insurance to an adjudicatory proceeding held pursuant to GBL § 411. Enforcement may only be effectuated if the Department of Financial Services has certified in writing that such financial products are read- ily available. Section 10 of the bill would amend GBL § 411 to make the department's current procedure for denial of a license applicable to trainee regis- trations. This section would also make the department's current proce- dures for revocation or suspension of a license, and imposing fines or reprimands on licensees, applicable to trainee registrations. Section 11 of the bill would amend GBL § 412 to set forth new civil and criminal penalties for the unlicensed operation of an appearance enhancement business. This section would also set forth a new civil penalty for the operation of an appearance enhancement business without the required bond or liability coverage. Section 12 of the bill would establish an immediate effective date, except that newly created GBL § 410(2)(c) and § 412(3) would take effect sixty days after the Department of Financial Services certifies in writ- ing to the Secretary that any bonds or liability insurance required by the Department is readily available to businesses.   EXISTING LAW: Article 27 of the GBL governs the issuance of appearance enhancement licenses, but it does not provide an expedited method for the Secretary to order appearance enhancement businesses to cease and desist when operating unlicensed. Further, the operation of appearance enhancement businesses without a license is a violation of law punishable by civil penalties, and is not considered a misdemeanor. Finally, current law does not permit traineeships for appearance enhancement licensees.   STATEMENT IN SUPPORT: Many nail salon employees endure unsafe working conditions and unfair labor practices. The unlicensed operation of appearance 'enhancement businesses, inadequate ventilation, wage theft, and lack of (i) personal protective equipment, (ii) workers' compensation insurance coverage, and (iii) business liability insurance, jeopardizes the health and safety of employees and patrons alike. The Secretary should be afforded the abili- ty to act swiftly to protect nail salon employees and the public. This bill would provide the Secretary the necessary tools to order the cessation of unlicensed or uninsured business activities and appropri- ately penalize unscrupulous operators. This bill would also provide a critical new path to employment through a trainee program.   BUDGET IMPLICATIONS: Revenue derived from increased statutory compliance would offset any costs associated with this bill.   EFFECTIVE DATE: This act shall take effect immediately.
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A07630 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7630--A
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 20, 2015
                                       ___________
 
        Introduced by M. of A. KIM, ROSENTHAL -- (at request of the Governor) --
          read  once  and  referred  to the Committee on Economic Development --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee
 
        AN ACT to amend the general business law, in relation to authorizing the
          secretary  of  state  to  order the cessation of unlicensed appearance
          enhancement activity and to register trainees in the practice of  nail
          specialty
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 400 of the  general  business  law  is  amended  by
     2  adding a new subdivision 11 to read as follows:
     3    11.  "Trainee" means a person pursuing in good faith a course of study
     4  in the practice of nail specialty under the  tutelage,  supervision  and
     5  direction  of  a  licensed  nail  practitioner.    Such trainee shall be
     6  employed by a licensed appearance enhancement business.
     7    § 2. Subdivision 1 of section 401 of  the  general  business  law,  as
     8  amended  by  chapter  341  of  the  laws  of 1998, is amended to read as
     9  follows:
    10    1. No person shall engage in the practice of nail  specialty,  waxing,
    11  natural  hair  styling,  esthetics or cosmetology, as defined in section
    12  four hundred of this article,  without  having  received  a  license  to
    13  engage  in  such  practice in the manner prescribed in this article.  No
    14  person shall act as a trainee or perform any service as such  unless  he
    15  or she has obtained a certificate of registration pursuant to this arti-
    16  cle.
    17    §  3.  Section  404 of the general business law, as amended by chapter
    18  341 of the laws of 1998, is amended to read as follows:
    19    § 404. Rules and regulations. The secretary shall promulgate rules and
    20  regulations which establish standards  for  practice  and  operation  by
    21  licensees and trainees under this article in order to ensure the health,
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12013-11-5

        A. 7630--A                          2
 
     1  safety  and  welfare of the public including licensees and trainees when
     2  they are working within such establishments.  Such rules and regulations
     3  shall include, but not be limited to, the sanitary conditions and proce-
     4  dures  required  to be maintained, a minimum standard of training appro-
     5  priate to the duties of nail specialists, trainees, waxers, natural hair
     6  stylists, estheticians, and cosmetologists and the provision of  service
     7  by  nail  specialists, trainees, waxers, natural hair stylists, estheti-
     8  cians or cosmetologists at remote locations other  than  the  licensee's
     9  home  provided  that  such  practitioner holds an appearance enhancement
    10  business license to operate at a fixed location or is  employed  by  the
    11  holder  of  an  appearance  enhancement  business  license.  Regulations
    12  setting forth the educational  requirements  for  nail  specialists  and
    13  trainees  shall include education in the area of causes of infection and
    14  bacteriology. In promulgating such rules and regulations  the  secretary
    15  shall  consult with the state education department, the advisory commit-
    16  tee established pursuant to this article, any other state  agencies  and
    17  private  industry  representatives  as may be appropriate in determining
    18  minimum training requirements.
    19    § 4. Section 404-b of the general business law, as  added  by  chapter
    20  489 of the laws of 2010, is amended to read as follows:
    21    §  404-b.  Nail  specialty; owner responsibilities. In addition to any
    22  rules and regulations establishing standards  for  practices  and  oper-
    23  ations  by  licensees under this article, in order to ensure the health,
    24  safety and welfare within appearance enhancement businesses, all  owners
    25  and  operators  of appearance enhancement businesses which practice nail
    26  specialty shall make available[, upon request] for use, gloves and face-
    27  masks for nail speciality licensees and trainees who work in such  busi-
    28  nesses.  [No  owner  or  operator of any appearance enhancement business
    29  that engages in the practice  of  nail  speciality  shall  prohibit  any
    30  licensee  practicing  nail specialty from wearing a mask or gloves while
    31  engaged in the practice of nail specialty at such business.]
    32    § 5. Subdivision 1 of section 406  of  the  general  business  law  is
    33  amended by adding a new paragraph f to read as follows:
    34    f.  Notwithstanding  the  educational  requirements of this section, a
    35  trainee may obtain a license to practice nail specialty if such  trainee
    36  provides  satisfactory  evidence  to the secretary that such trainee has
    37  been actively engaged in a traineeship for a period of one year and  has
    38  completed  a  course of study set forth by the secretary. Such course of
    39  study may be delivered by electronic means.
    40    § 6. The general business law is amended by adding a new section 408-a
    41  to read as follows:
    42    § 408-a. Trainee. 1. Each applicant for a certificate of  registration
    43  as  a  trainee  shall make an application which shall include the physi-
    44  cian's certificate required by paragraph e of subdivision one of section
    45  four hundred six of this article, two recent photographs, and such other
    46  information required by such section and in such form as  the  secretary
    47  may prescribe.
    48    2. A certificate of registration as a trainee shall be for a period of
    49  one year, renewable for a second year, and may be renewed for additional
    50  terms within the discretion of the secretary.
    51    3. Each certificate of registration issued as provided in this section
    52  shall  be  posted  in  a conspicuous place in the appearance enhancement
    53  business in which the trainee is actually engaged  in  the  practice  of
    54  nail specialty as a trainee.
    55    4.  The holder of a certificate of registration as a trainee shall not
    56  be entitled to an appearance enhancement business license.

        A. 7630--A                          3
 
     1    § 7. Subdivisions 3, 4, 5, 6 and 7 of section 409 of the general busi-
     2  ness law are renumbered subdivisions 4, 5, 6, 7 and 8, and a new  subdi-
     3  vision 3 is added to read as follows:
     4    3.  Upon  a determination that it is in the best public interest to do
     5  so, the secretary may promulgate rules imposing fees not to exceed twen-
     6  ty dollars for the registration and renewal of  the  registration  of  a
     7  trainee.
     8    §  8.  Subdivision  1  of  section 410 of the general business law, as
     9  added by chapter 509 of the laws of the 1992,  is  amended  to  read  as
    10  follows:
    11    1.  Suspension  and  revocation  of  licenses or registrations; fines;
    12  reprimands. A license or registration issued pursuant  to  this  article
    13  may  be  suspended  or  revoked,  or  a  fine not exceeding five hundred
    14  dollars payable to the department may be imposed for any one or more  of
    15  the following causes:
    16    a.  Fraud  or bribery in securing a license or registration or permis-
    17  sion to take an examination therefor.
    18    b. The making of any false statement as to a material  matter  in  any
    19  application or other statement or certificate required by or pursuant to
    20  this article.
    21    c. Incompetence or untrustworthiness.
    22    d.  Failure to display the license or registration as provided in this
    23  article.
    24    e. Violation of any provision of this article, or of any rule or regu-
    25  lation adopted hereunder.
    26    f. Conviction of any of the following crimes subsequent to  the  issu-
    27  ance  of  a  license  or  registration pursuant to this article:   fraud
    28  pursuant to sections 170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and
    29  190.65;  falsifying  business  records pursuant to section 175.10; grand
    30  larceny pursuant to article 155; bribery pursuant  to  sections  180.03,
    31  180.08,  180.15, 180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12,
    32  200.45, 200.50; perjury pursuant to  sections  210.10,  210.15,  210.40;
    33  assault  pursuant  to  sections  120.05, 120.10, 120.11, 120.12; robbery
    34  pursuant to article  160;  homicide  pursuant  to  sections  125.25  and
    35  125.27;  manslaughter pursuant to sections 125.15 and 125.20; kidnapping
    36  and unlawful  imprisonment  pursuant  to  sections  135.10,  135.20  and
    37  135.25;  unlawful weapons possession pursuant to sections 265.02, 265.03
    38  and 265.04; criminal use of a weapon pursuant  to  sections  265.08  and
    39  265.09;  criminal  sale  of  a  weapon  pursuant  to sections 265.11 and
    40  265.12; compelling prostitution pursuant to section  230.33;  sex  traf-
    41  ficking pursuant to section 230.34; and sex offenses pursuant to article
    42  130  of  the penal law. Provided, however, that for the purposes of this
    43  article, none of the following shall be considered criminal  convictions
    44  or  reported as such: (i) a conviction for which an executive pardon has
    45  been issued pursuant to the executive law; (ii) a conviction  which  has
    46  been  vacated  and  replaced  by a youthful offender finding pursuant to
    47  article seven hundred twenty of  the  criminal  procedure  law,  or  the
    48  applicable  provisions  of  law  of  any  other jurisdiction; or (iii) a
    49  conviction the records of which have been expunged or sealed pursuant to
    50  the applicable provisions of the laws of this  state  or  of  any  other
    51  jurisdiction; and (iv) a conviction for which other evidence of success-
    52  ful rehabilitation to remove the disability has been issued.
    53    Provided,  however,  a fine shall not be imposed for the causes speci-
    54  fied in paragraph f of this subdivision.
    55    In lieu of or in conjunction with the suspension or  revocation  of  a
    56  license  or  registration,  or the imposition of a fine pursuant to this

        A. 7630--A                          4
 
     1  section, the secretary may issue a reprimand. When a license  or  regis-
     2  tration  issued  pursuant  to  this  article is revoked, such license or
     3  registration shall not be reinstated or reissued until after the expira-
     4  tion  of  a  period  of  one  year  from the date of such revocation. No
     5  license or registration shall be issued after a second revocation.
     6    § 9. Subdivision 2 of section 410 of  the  general  business  law,  as
     7  amended  by  chapter  324 of the laws of the 1998, is amended to read as
     8  follows:
     9    2. Unlicensed activities. a. The secretary may issue an order  direct-
    10  ing  the  cessation  of  any activity related to nail specialty, waxing,
    11  natural hair styling, esthetics or cosmetology for which  a  license  is
    12  required  by this article upon a determination that a person, [including
    13  a] partnership, [a] limited liability company or  business  corporation,
    14  [has  engaged]  engaging in [or followed] the business or occupation of,
    15  or [held] holding himself, herself or itself out as or acted,  temporar-
    16  ily  or  otherwise, as a nail specialist, natural hair stylist, estheti-
    17  cian[,] or cosmetologist [or  appearance  enhancement  business]  within
    18  this  state  without  a  valid license being in effect. The [department]
    19  secretary shall, before making such determination and order, afford such
    20  person, partnership, limited liability company or  business  corporation
    21  an  opportunity to be heard in person or by counsel in reference thereto
    22  in an adjudicatory proceeding held pursuant to  [this  article]  section
    23  four hundred eleven of this article as applicable.
    24    b.    Notwithstanding  any provision to the contrary, if the secretary
    25  finds that a person, partnership, limited liability company or  business
    26  corporation,  is  holding himself, herself or itself out as or is acting
    27  as, temporarily or otherwise, an appearance enhancement business  within
    28  this  state  without  a  valid  license, the secretary shall provide the
    29  person, partnership, limited liability company or  business  corporation
    30  with  a  written  notice of violation and complaint, and shall afford an
    31  opportunity to be heard, either in  person  or  by  counsel,  before  an
    32  administrative law judge no sooner than three days from delivery of such
    33  notice  of  violation. If documentary proof that the deficiency has been
    34  cured is not provided to  the  secretary  at  or  before  such  hearing,
    35  following  a  hearing  determination  that  unlicensed  activities  have
    36  occurred, the secretary may  issue  an  immediate  order  directing  the
    37  cessation of any activity for which an appearance enhancement license is
    38  required.
    39    c.  The  secretary  may  issue an order directing the cessation of any
    40  activity if the secretary finds that a person, including a  partnership,
    41  a limited liability company or business corporation, is holding himself,
    42  herself  or  itself out as or is acting as, temporarily or otherwise, an
    43  appearance enhancement business within the state without a (i)  bond  or
    44  (ii)  liability insurance or liability coverage which is covered through
    45  a bond. The secretary shall, before making such determination and order,
    46  afford such person, partnership, limited liability company  or  business
    47  corporation an opportunity to be heard in person or by counsel in refer-
    48  ence thereto in an adjudicatory proceeding held pursuant to section four
    49  hundred eleven of this article.  The enforcement of this provision shall
    50  require  the  department  of financial services to certify in writing to
    51  the secretary that any bonds or liability insurance that is required  by
    52  the department is readily available to appearance enhancement businesses
    53  from the market place.
    54    d.  The  attorney  general,  acting  on  behalf  of the secretary, may
    55  commence an action or proceeding in a court of competent jurisdiction to
    56  obtain a judgment against such person,  partnership,  limited  liability

        A. 7630--A                          5
 
     1  company or business corporation in an amount equal to that assessed as a
     2  civil  penalty.  Said  judgment  shall  thereafter be enforceable by any
     3  means authorized by the civil practice law and rules.
     4    e.  Where  an  appearance  enhancement  business operator continues to
     5  operate without a license following the issuance  of  an  order  by  the
     6  secretary directing cessation, the attorney general, acting on behalf of
     7  the secretary, may commence an action or proceeding in a court of compe-
     8  tent  jurisdiction  against  such  operator to obtain an order enjoining
     9  further operation of such business. An appearance  enhancement  business
    10  that has been ordered to cease operation shall not re-open without first
    11  obtaining  a license as required by this article and paying any assessed
    12  fines.
    13    § 10. Subdivisions 1 and 2 of section 411 of the general business law,
    14  subdivision 1 as added by chapter 509 of the laws of 1992, and  subdivi-
    15  sion 2 as amended by chapter 134 of the laws of the 2000, are amended to
    16  read as follows:
    17    1.  Denial  of  license  or registration. The department shall, before
    18  making a final determination to deny an application  for  a  license  or
    19  registration,  notify  the  applicant in writing of the reasons for such
    20  proposed denial and shall afford the  applicant  an  opportunity  to  be
    21  heard  in  person or by counsel prior to denial of the application. Such
    22  notification shall be served personally or by certified mail or  in  any
    23  manner  authorized  by the civil practice law and rules for service of a
    24  summons. If a hearing is requested, such hearing shall be held  at  such
    25  time  and  place  as  the department shall prescribe.   If the applicant
    26  fails to make a written request for a hearing within thirty  days  after
    27  receipt  of  such  notification,  then  the notification of denial shall
    28  become the final determination of the department. The department, acting
    29  by such officer or person in the department as the secretary may  desig-
    30  nate,  shall  have the power to subpoena and bring before the officer or
    31  person so designated any person in this state, and administer an oath to
    32  and take testimony of any person or cause his deposition to be taken.  A
    33  subpoena issued under this section shall be regulated by the civil prac-
    34  tice  law  and rules. If, after such hearing, the application is denied,
    35  written notice of  such  denial  shall  be  served  upon  the  applicant
    36  personally or by certified mail or in any manner authorized by the civil
    37  practice law and rules for the service of a summons.
    38    2.  Revocation,  suspension, reprimands, fines; unlicensed activities.
    39  The department shall, before  revoking  or  suspending  any  license  or
    40  registration or imposing any fine or reprimand on the holder thereof, or
    41  before  issuing  any  order directing the cessation of unlicensed activ-
    42  ities, and at least ten days prior to the  date  set  for  the  hearing,
    43  notify  in  writing  the  holder of such license or registration, or the
    44  person alleged to have engaged in unlicensed or unregistered activities,
    45  of any charges made and shall afford such person an  opportunity  to  be
    46  heard in person or by counsel in reference thereto.  Such written notice
    47  may  be  served by delivery of same personally to the licensee or regis-
    48  trant or person charged, or by mailing same by  certified  mail  to  the
    49  last  known  business  or  other  address provided by such person to the
    50  secretary of state, or by any method authorized by  the  civil  practice
    51  law  and rules for the service of a summons. The hearing on such charges
    52  shall be at such time and place as the department shall prescribe.
    53    § 11. Section 412 of the general business law, as amended  by  chapter
    54  341 of the laws of 1998, is amended to read as follows:
    55    §  412. [Civil penalties] Penalties.  1. The practice of nail special-
    56  ty, waxing, natural hair styling,  esthetics  or  cosmetology[,  or  the

        A. 7630--A                          6

     1  operation  of  an  appearance enhancement business] without a license or
     2  while under suspension or  revocation,  or  in  violation  of  an  order
     3  directing  the  cessation of unlicensed activity issued by the secretary
     4  pursuant  to  section  four  hundred  ten or four hundred eleven of this
     5  article, is a violation and is subject to a civil penalty of up to  five
     6  hundred  dollars  for  the  first  violation; one thousand dollars for a
     7  second such violation; and two thousand five hundred dollars for a third
     8  violation and any subsequent violation.
     9    2. The following violations shall be deemed separate offenses  and  be
    10  deemed a misdemeanor, and upon conviction, shall be punishable by impri-
    11  sonment for not more than six months, or by a fine of up to two thousand
    12  five hundred dollars or by both such fine and imprisonment:
    13    (a)  the  operation  of  an  appearance enhancement business without a
    14  license or when such license has been suspended or revoked; or
    15    (b) the operation of an appearance enhancement business  in  violation
    16  of an order directing the cessation of unlicensed activity issued by the
    17  secretary pursuant to section four hundred ten of this article.
    18    3.  The  operation of an appearance enhancement business without a (a)
    19  bond or (b) liability insurance or liability coverage which  is  covered
    20  through a bond shall be punishable by a civil penalty of up to two thou-
    21  sand  five  hundred  dollars.  The  enforcement  of this provision shall
    22  require the department of financial services to certify  in  writing  to
    23  the  secretary that any bonds or liability insurance that is required by
    24  the department is readily available to appearance enhancement businesses
    25  from the market place.
    26    § 12. This act shall take effect immediately; provided,  however  that
    27  the  provisions  set  forth in paragraph (c) of subdivision 2 of section
    28  410 of the general business law as added by section nine of this act and
    29  subdivision 3 of section 412 of the general business  law  as  added  by
    30  section  eleven  of this act shall take effect on the sixtieth day after
    31  the department of financial services has certified  in  writing  to  the
    32  secretary  of  state  that  any  bonds  or  liability  insurance that is
    33  required by the department of state is readily available  to  the  busi-
    34  nesses from the market place.
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