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A10042 Summary:

BILL NOA10042
 
SAME ASSAME AS S07993
 
SPONSORCruz
 
COSPNSRRosenthal L, Fernandez, O'Donnell, Ortiz, Kim, Fahy, Epstein, Lentol
 
MLTSPNSR
 
Amd 400 & 404-b, add 406-a, Gen Bus L
 
Imposes additional rules and requirements for the licensing of nail salons.
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A10042 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          10042
 
                   IN ASSEMBLY
 
                                      March 4, 2020
                                       ___________
 
        Introduced  by  M. of A. CRUZ, L. ROSENTHAL -- read once and referred to
          the Committee on Economic Development
 
        AN ACT to amend the general business law, in relation to  the  licensing
          of nail salons
 
          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 12 to read as follows:
     3    12.  "Nail salon" means an appearance enhancement business which prac-
     4  tices nail specialty.
     5    § 2. Section 404-b of the general business law, as amended by  chapter
     6  80 of the laws of 2015, is amended to read as follows:
     7    § 404-b. Nail specialty; owner responsibilities. 1. In addition to any
     8  rules  and  regulations  establishing  standards for practices and oper-
     9  ations by licensees under this article, in order to ensure  the  health,
    10  safety  and welfare within appearance enhancement businesses, all owners
    11  and operators of appearance enhancement businesses which  practice  nail
    12  specialty  shall  make  available for use, gloves and facemasks for nail
    13  [speciality] specialty licensees and trainees who  work  in  such  busi-
    14  nesses.
    15    2.  a.  Owners  and  operators  of  nail salons shall be provided with
    16  educational materials that contain all relevant local, state and federal
    17  laws and provisions to be followed by such owners and operators.  Educa-
    18  tional materials shall contain, but are not limited to:
    19    (i) information on wages and payments to employees; and
    20    (ii) information to ensure  the  health  and  safety  of  the  public,
    21  including licensees and trainees who are working within such businesses.
    22  Such  information  shall  include,  but  not be limited to, health regu-
    23  lations to be adhered to, information on health hazards within the work-
    24  place, a list of side effects from extended exposure to chemicals  used,
    25  and  proper  procedures to reduce health risks if workers inhale or come
    26  into physical contact with chemicals used.
    27    b. Written materials shall be provided in the same  languages  as  the
    28  nail  practitioner  bill of rights required pursuant to 19 NYCRR 160.10,
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15396-02-0

        A. 10042                            2
 
     1  and a hard copy shall be given to every owner, manager,  supervisor  and
     2  employee of the business.
     3    3.  All  owners  and  operators of nail salons shall attend a two-hour
     4  in-person professional training,  approved  by  the  department,  within
     5  thirty  days  of  notification of approval of such owner's or operator's
     6  appearance  enhancement  business  license  issued   pursuant   to   the
     7  provisions  of  this  article.  All  owners and operators of nail salons
     8  shall also attend such training prior to renewal of such license.
     9    4. All owners and operators of nail salons shall  provide  a  biennial
    10  two-hour  in-person  professional training approved by the department to
    11  managers, supervisors and employees.
    12    5. a. The training for owners, operators,  managers,  supervisors  and
    13  employees  required  pursuant to the provisions of this section shall be
    14  conducted by organizations that are approved by the department to  offer
    15  the  nail  specialty  trainee course pursuant to 19 NYCRR 163.2 and have
    16  significant experience in training nail  salon  workers  on  health  and
    17  safety  regulations.  This  training shall be provided in English and in
    18  the same languages as the nail  practitioner  bill  of  rights  required
    19  pursuant to 19 NYCRR 160.10 and shall:
    20    (i) Educate owners, operators, managers, supervisors and employees, on
    21  wage  and hour laws, including minimum wage, overtime pay, and paid sick
    22  days;
    23    (ii) Educate owners, operators, managers,  supervisors  and  employees
    24  regarding health and safety rules and regulations in order to ensure the
    25  health,  safety and welfare of the public including licensees and train-
    26  ees when they are working within a nail  salon,  information  on  health
    27  hazards within the workplace, a list of side effects from extended expo-
    28  sure  to chemicals used, and proper procedures to reduce health risks if
    29  a person inhales or comes into physical contact with chemicals used;
    30    (iii) Educate owners, operators, managers, supervisors  and  employees
    31  regarding  protection for employees who report a violation of a state or
    32  federal law, rule or regulation; and
    33    (iv) Educate owners and operators of  nail  salons  on  the  necessary
    34  legal and operational requirements when starting and maintaining a busi-
    35  ness, including but not limited to, the requirements imposed pursuant to
    36  this article.
    37    b. The cost of the training required pursuant to this section shall be
    38  covered  by the owner and/or operator of the nail salon and shall not be
    39  deducted from the pay of an employee.
    40    6. The department shall consider the non-profit status,  as  described
    41  in  section 501(c) of the Internal Revenue Code of the United States (26
    42  U.S.C. 501(c)) when approving organizations to provide the training. The
    43  department shall promulgate rules to consider organizations without such
    44  non-profit status if:
    45    a. No organization with non-profit status is  available  within  fifty
    46  miles  of  an  appearance  enhancement  business  which  practices  nail
    47  specialty;
    48    b. None have offered their services within fifty miles of  an  appear-
    49  ance enhancement business which practices nail specialty; or
    50    c.  Using  a  for-profit organization would alleviate significant time
    51  delays of four weeks or  more  in  between  training  availabilities  of
    52  existing organizations with non-profit status.
    53    7.  The  secretary shall establish a training committee to prepare the
    54  written educational materials  and  curriculum  for  the  training.  The
    55  training  committee  shall also recommend qualified organizations to the

        A. 10042                            3
 
     1  secretary to provide  professional  training.  Such  training  committee
     2  shall be composed as follows:
     3    a.  A  member of a health and safety organization that has significant
     4  experience in training nail specialty workers on health and safety regu-
     5  lations in the nail salon industry and on  obtaining  a  nail  specialty
     6  license;
     7    b. A member of a labor union that has significant experience in train-
     8  ing nail specialty workers on wage and hour laws;
     9    c.  A  member  of  a business association for nail salon owners in the
    10  state of New York; and
    11    d. A member of a community  center  that  has  significant  experience
    12  working  within  the  nail  salon  industry  and  has  a membership that
    13  includes both workers and owners in New York.
    14    8. The secretary shall convene the training committee  no  later  than
    15  sixty  days  after  the effective date of this subdivision. The training
    16  committee shall propose the requirements for the  educational  materials
    17  and  training and shall recommend qualified organizations to conduct the
    18  training to the secretary no later than sixty  days  after  the  initial
    19  meeting  of such committee. The secretary shall issue official materials
    20  and a list of approved training organizations no later than  sixty  days
    21  after  receiving recommendations from the training committee. Nail salon
    22  owners shall attend a training and provide a training to  the  employees
    23  of such nail salon within one hundred eighty days of the secretary issu-
    24  ing a list of approved organizations.
    25    9. The training committee shall meet at least quarterly the first year
    26  after their initial meeting and biannually thereafter to make any neces-
    27  sary  changes  to the curriculum and discuss issues in the industry.  At
    28  least one annual meeting shall be open  to  other  nail  salon  workers,
    29  advocates,  and  owners  to provide feedback on the training and discuss
    30  other issues in the industry.
    31    10. An approved organization  shall  notify  the  department  for  the
    32  purpose of updating the publicly accessible registry, pursuant to subdi-
    33  vision  eight  of section four hundred six-a of this article, within one
    34  week of a nail salon owner completing the training required pursuant  to
    35  this  section  or  a nail salon owner has provided such training for the
    36  employees of such nail salon.
    37    § 3. The general business law is amended by adding a new section 406-a
    38  to read as follows:
    39    § 406-a. Nail salon license application; procedure;  requirements.  1.
    40  Any person, eighteen years of age or older, or any firm, limited liabil-
    41  ity company, partnership or corporation having at least one member eigh-
    42  teen  years  of age or older may apply to the secretary for a nail salon
    43  license.
    44    2. It shall be unlawful for any person to operate a nail salon without
    45  a nail salon license.
    46    3. All licenses issued pursuant to this section shall be valid for two
    47  years.
    48    4. Each applicant applying for a nail salon license or renewal thereof
    49  shall file an application in such form and manner as prescribed  by  the
    50  secretary  and  shall pay a fee of sixty dollars for each location where
    51  such applicant's nail salon operates. The following information shall be
    52  required on an application for a license pursuant to this section:
    53    a. If the applicant is an  individual,  their  name,  date  of  birth,
    54  permanent home address, and telephone number, as well as any other names
    55  by which he or she has conducted a business at any time;

        A. 10042                            4
 
     1    b. If the applicant is a corporation, the corporate name of the appli-
     2  cant,  its  place of incorporation, addresses of all locations where the
     3  business operates, other names  by  which  it  has  been  known  or  has
     4  conducted  business  at  any  time,  its  telephone  number, its federal
     5  employer  identification  number,  and  the  names  and  permanent  home
     6  addresses of its directors, officers and shareholders;
     7    c. If the applicant is a  partnership,  its  name,  addresses  of  all
     8  locations  where the business operates, other names by which it has been
     9  known or has conducted business at any time, its telephone  number,  its
    10  federal employer identification number, and the names and permanent home
    11  addresses of each of its partners;
    12    d.  If  the applicant intends to operate in a city covered by subdivi-
    13  sion nine of this section,  such  applicant  shall  attach  an  approved
    14  application  to  operate  in  such  city,  pursuant to the provisions of
    15  subdivision nine of this section;
    16    e. Any judgments, injunctions, liens, administrative  orders,  includ-
    17  ing,  but  not  limited  to,  judgments  based on taxes owed, fines, and
    18  penalties assessed by any government agency during the five years  prior
    19  to licensure or renewal thereof against the applicant or any person that
    20  has an ownership interest in the applicant of more than five percent;
    21    f.  Written  proof of compliance with any bond requirements prescribed
    22  by the secretary;
    23    g. Signed certification by the applicant that there are no outstanding
    24  final judgments or warrants against the applicant, in any action arising
    25  out of a violation of the provisions of this article  or  any  rules  or
    26  regulations promulgated thereunder;
    27    h.  Certificates  of insurance for workers' compensation, unemployment
    28  insurance and disability insurance coverage;
    29    i. Original or true copies of liability insurance policies or  certif-
    30  icates  of  insurance  for liability insurance carried by the applicant;
    31  and
    32    j. Written proof of compliance  with  the  training  requirements,  as
    33  prescribed in section four hundred four-b of this article.
    34    5. Any application for renewal of a nail salon license shall be accom-
    35  panied  by  a  certification  signed by the applicant and affirmed under
    36  penalty of perjury that such applicant is in compliance  with  all  laws
    37  relating to the protection of workers' rights, including, but not limit-
    38  ed  to New York state labor law and New York state workers' compensation
    39  law and is in compliance with all applicable tax laws.
    40    6. The secretary shall also consider comments from nail salon  employ-
    41  ees  when  deciding  whether  to  issue  or  renew  a license under this
    42  section.  All employees under a nail salon license shall be  allowed  to
    43  submit comments to the secretary as part of the license renewal process.
    44  The  applicant  shall  be given redacted copies of any comment received,
    45  with the name of the employee removed. The  applicant  shall  provide  a
    46  mitigation  plan  to address any issue in the comments, and shall submit
    47  the plan to the secretary. The employee and/or  their  organization  may
    48  also  submit  comments  regarding  the mitigation plan to the secretary.
    49  Taking the comments from  applicant  and  employees  into  account,  the
    50  secretary may:
    51    a. deny the request for renewal;
    52    b. approve the request for renewal;
    53    c.  approve  the request for renewal, provided that certain conditions
    54  are met; or
    55    d. issue a temporary  license  until  final  adjudications  of  claims
    56  relating to the renewal of the license are reached.

        A. 10042                            5

     1    7.  In  addition  to  any  of  the powers that may be exercised by the
     2  secretary pursuant to this section or any rules promulgated  thereunder,
     3  the secretary may deny issuance or renewal of a license pursuant to this
     4  section upon a finding that:
     5    a.  the  applicant  has  failed  to  satisfy any fine or civil penalty
     6  ordered against such applicant in a judicial or administrative  proceed-
     7  ing  arising out of a violation of this article or any rules promulgated
     8  thereunder;
     9    b. a nail salon to which the applicant is a successor, as such term is
    10  described in subdivision eleven of this section, has failed  to  satisfy
    11  any  fine  or civil penalty ordered against such entity in a judicial or
    12  administrative proceeding arising out of a violation of this article  or
    13  any rules promulgated thereunder;
    14    c.  a  person or entity that is part of the ownership structure of the
    15  applicant has failed to  satisfy  any  fine  or  civil  penalty  ordered
    16  against  such  entity in a judicial or administrative proceeding arising
    17  out of a violation of this article or any rules promulgated  thereunder;
    18  or
    19    d.  the  applicant or a person or entity that is part of the ownership
    20  structure of such applicant lacks good moral character. In  making  such
    21  determination, the secretary may consider, but is not limited to, any of
    22  the following factors:
    23    (i)  failure  by  such  applicant  to  provide truthful information or
    24  documentation in connection with the application or  other  request  for
    25  information;
    26    (ii)  findings  of  liability  in  a civil, criminal or administrative
    27  action involving egregious or repeated  nonpayment  or  underpayment  of
    28  wages  or  other illegal acts or omissions bearing a direct relationship
    29  to the fitness of the applicant to conduct the business  for  which  the
    30  license  is  sought;  except  that the secretary shall take into account
    31  mitigating factors including: (1) the passage of time since  such  find-
    32  ings  of  liability or other illegal acts or omissions at issue; (2) the
    33  severity of such findings of liability or other illegal  acts  or  omis-
    34  sions;  (3) whether any such findings or other illegal acts or omissions
    35  were resolved or are still pending; and (4) any change  in  circumstance
    36  that  might reduce the likelihood of such findings or other illegal acts
    37  or omissions recurring during the period  of  licensure,  including  the
    38  fact that such findings or other illegal acts or omissions at issue took
    39  place prior to the effective date of this section;
    40    (iii) a prior revocation by the secretary of a nail salon license held
    41  by the applicant; and
    42    (iv)  a  finding that within the last ten years an entity to which the
    43  applicant is a successor, as such term is described in subdivision elev-
    44  en of this section, has been denied the issuance or renewal of a license
    45  pursuant to this subdivision or has had a license  revoked  pursuant  to
    46  section four hundred ten of this article.
    47    8. The department shall maintain a publicly accessible registry of all
    48  licensed  nail  salons which shall be updated no less than monthly. Such
    49  registry shall identify:
    50    a. the names of  all  persons  that  own,  control  and/or  operate  a
    51  licensed  nail  salon  and,  if  applicable, the percentage of ownership
    52  interests held by such persons;
    53    b.  any  judgments,  injunctions,  liens,  or  administrative  orders,
    54  including, but not limited to, judgments based on taxes owed, fines, and
    55  penalties  assessed by any government agency during the five years prior
    56  to licensure or renewal thereof against a licensee or  any  person  that

        A. 10042                            6
 
     1  has  an  ownership interest in the licensed nail salon of more than five
     2  percent;
     3    c.  the  addresses of all locations for which a licensee is authorized
     4  to operate and the number of employees employed at each such location;
     5    d. the most recent date that a licensee completed the requisite train-
     6  ing, pursuant to section four hundred four-b of this article; and
     7    e. the most recent date that  a  licensee  provided  training  to  the
     8  employees within the nail salon, pursuant to section four hundred four-b
     9  of this article.
    10    9.  A  city with a population of one million or more is hereby author-
    11  ized to adopt and amend local laws that allow  for  additional  require-
    12  ments  for nail salons located within such city. Such city may implement
    13  application requirements that promote compliance with city,  state,  and
    14  federal laws relating to the nail salon industry and nail salon workers.
    15  If  any  such  city adopts requirements pursuant to this subdivision, an
    16  applicant for a nail salon license pursuant to this section shall submit
    17  an application for approval to operate in such city  to  the  regulatory
    18  authority  designated by such city in a form and manner to be prescribed
    19  by such city. The secretary shall not approve a license pursuant to this
    20  section that permits operation in any such city unless the applicant has
    21  been approved by the city prior to submission of an application  to  the
    22  secretary.
    23    10.  All  applicants who are issued a license under this section shall
    24  submit a monthly payroll record which is attested to by  the  applicant,
    25  or  an  authorized  agent of the applicant within ten days of the end of
    26  each month. Such record shall be in a form prescribed by the  secretary,
    27  which  shall  at  a  minimum  include for each employee, such employee's
    28  name; nail specialty license number; hourly rate of pay; daily, overtime
    29  and weekly hours worked; gross pay; itemized  deductions;  and  net  pay
    30  paid to the employee.
    31    11.  An applicant shall be considered a successor to a nail salon upon
    32  a finding that such applicant satisfies two or  more  of  the  following
    33  criteria:
    34    a.  the  applicant  uses the same facility, facilities or workforce to
    35  offer substantially the same services as the nail salon;
    36    b. the applicant shared  in  the  ownership,  or  otherwise  exercised
    37  control over, the management of the nail salon;
    38    c.  the  applicant  employs  in  a  managerial capacity any person who
    39  controlled the wages, hours,  or  working  conditions  of  the  affected
    40  employees of the nail salon; or
    41    d.  the  applicant  is an immediate family member, including a parent,
    42  step-parent, child, or step, foster or  adopted  child,  of  any  owner,
    43  partner,  officer,  or  director of the nail salon, or of any person who
    44  had a financial interest in the nail salon.
    45    § 4. Severability. If any clause, sentence, paragraph, section or part
    46  of this act shall be adjudged by any court of competent jurisdiction  to
    47  be  invalid,  such  judgment shall not affect, impair, or invalidate the
    48  remainder thereof, but shall be confined in its operation to the clause,
    49  sentence, paragraph, section, or part thereof directly involved  in  the
    50  controversy in which such judgment shall have been rendered.
    51    §  5.  This  act shall take effect on the ninetieth day after it shall
    52  have become a law. Effective immediately, the addition, amendment and/or
    53  repeal of any rule or regulation necessary  for  the  implementation  of
    54  this  act  on its effective date are authorized to be made and completed
    55  on or before such effective date.
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