Bill Text: NY A06698 | 2019-2020 | General Assembly | Introduced

Bill Title: Prohibits the sale or purchase of certain items as scrap: any metal items bearing markings of any government entity, utility company, cemetery or railroad items; preempts local laws.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2019-03-15 - referred to economic development [A06698 Detail]

Download: New_York-2019-A06698-Introduced.html

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                     March 15, 2019
        Introduced  by  M.  of  A. PEOPLES-STOKES, COOK, D'URSO -- read once and
          referred to the Committee on Economic Development
        AN ACT to amend the general business law, in relation  to  licensing  of
          scrap producers in the state and certain cities
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 69-e of the general business law, as added by chap-
     2  ter 431 of the laws of 1976, is amended to read as follows:
     3    § 69-e. Definitions. 1. "Scrap metal processing facility"  shall  mean
     4  an establishment engaged primarily in the purchase, processing and ship-
     5  ment of ferrous and/or non-ferrous scrap metal, the end product of which
     6  is  the  production  of  raw material [for remelting purposes] for steel
     7  mills, [foundaries] foundries, smelters, refiners,  and  similar  users,
     8  but  shall  not  include  a  redemption center, dealer or distributor as
     9  defined in section 27-1003 of the environmental conservation law  or  an
    10  electronic  waste  collection,  consolidation  or  recycling facility as
    11  defined in section 27-2601 of the environmental conservation law.
    12    2. "Scrap processor" shall mean any person,  association,  partnership
    13  or  corporation  operating  and  maintaining  a  "scrap metal processing
    14  facility".
    15    3. "Government issued  photographic  identification"  shall  mean  any
    16  current  and valid official form of identification issued by the govern-
    17  ment of the United States of America, a state, territory,  protectorate,
    18  or dependency of the United States of America, a county, municipality or
    19  subdivision  thereof,  any  public  agency or department thereof, or any
    20  public employer, which requires and bears the signature  and  photograph
    21  of the person to whom it is issued.
    22    4. "Department" shall mean the New York state department of state.
    23    §  2.    Section 69-f of the general business law, as added by chapter
    24  431 of the laws of 1976, is amended to read as follows:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 6698                             2
     1    § 69-f. License.  1. It shall be unlawful for any person, association,
     2  partnership or corporation to engage in business as  a  scrap  processor
     3  unless  such  scrap processor shall have complied with the provisions of
     4  this article and obtained a license to do so  from  [the  mayor  of  the
     5  city,  if the place of business of such scrap processor is in a city, or
     6  the mayor of the village if the place of business is in an  incorporated
     7  village,  otherwise  from the supervisor of the town in which such place
     8  of business is located, or from] the licensing authority  as  designated
     9  by a duly adopted local law of [any such] the municipality in which such
    10  scrap  processor is located; for which license shall be paid [such mayor
    11  or supervisor or licensing authority for the use of such city,  village,
    12  or town the sum of seventy-five dollars if such place of business is the
    13  principal  place  of  business  of  such  scrap processor in this state,
    14  otherwise the sum of fifty dollars, which license shall expire  on  June
    15  thirtieth  of each year] an annual license fee not to exceed two hundred
    16  fifty dollars.
    17    2. On or after September first, two thousand twenty, no person,  asso-
    18  ciation,  partnership  or  corporation  shall  hold  himself, herself or
    19  itself out to be a scrap processor  in  New  York  state  without  first
    20  obtaining a license from the department as provided in this section.
    21    3.  Any  person,  association,  partnership  or  corporation seeking a
    22  license as a scrap processor shall file with the  department  a  license
    23  application which shall include the following information:
    24    (a) the business name and address of the applicant;
    25    (b) the names of the applicant's officers, directors, and high manage-
    26  rial agents as such term is defined in section 20.20 of the penal law;
    27    (c) the business telephone number of the applicant;
    28    (d)  the  address of the scrap processing facility for which a license
    29  is sought;
    30    (e) a statement indicating whether the applicant or any person identi-
    31  fied pursuant to paragraph (b) of this subdivision has:
    32    (i) been convicted of any crime relating to conduct as a scrap proces-
    33  sor; and
    34    (ii) at any time in the past been issued a license  pursuant  to  this
    35  section, and if so, whether such license was ever revoked or suspended;
    36    (f)  a  certification attesting that the scrap processor is in compli-
    37  ance with the applicable regulations of the department of  environmental
    38  conservation;
    39    (g)  a  copy of (i) the applicant's EPA refrigerant recovery equipment
    40  acquisition certification form certifying that the prospective  licensee
    41  owns  approved  refrigerant removal equipment, or (ii) a copy of a valid
    42  contract between the  applicant  and  a  certified  refrigerant  removal
    43  contractor;
    44    (h)  a  certification attesting that the scrap processor is in compli-
    45  ance with requirements of section sixty-nine-g of this article;
    46    (i) a sworn statement by the applicant that the information set  forth
    47  in the application is current and accurate; and
    48    (j)  a complete set of two fingerprint cards for each officer and high
    49  managerial agent  of  the  applicant  on  a  standard  fingerprint  card
    50  approved  by the division of criminal justice services. Such cards shall
    51  be retained by the  department  and  used  solely  for  the  purpose  of
    52  conducting an investigation pursuant to subdivision ten of this section.
    53  If  additional  copies  of fingerprints are required the applicant shall
    54  furnish them upon request.
    55    4. (a) A license issued  or  renewed  under  the  provisions  of  this
    56  section  shall entitle a person, association, partnership or corporation

        A. 6698                             3
     1  to act as a scrap processor in the state of New York for a period of two
     2  years from the effective date of the license. Any license granted  under
     3  this  section may be renewed by the department upon application for such
     4  renewal  by  the  holder  thereof,  in  such  form as the department may
     5  prescribe.
     6    (b) Upon original application for a license  to  operate  as  a  scrap
     7  processor,  the  applicant  shall pay an application fee of one thousand
     8  dollars. Upon application for a license renewal, the licensee shall  pay
     9  a renewal processing fee of one thousand dollars.
    10    (c)  The  secretary  of state shall have the authority to assign stag-
    11  gered expiration dates for licenses at  the  time  of  renewal.  If  the
    12  assigned  date  results  in  a term that exceeds twenty-four months, the
    13  applicant shall pay an additional prorated adjustment together with  the
    14  regular renewal fee.
    15    (d)  The  secretary of state shall issue each scrap processor a unique
    16  license number.
    17    5. (a) Notice in writing in the manner  and  form  prescribed  by  the
    18  department  shall  be  given  to the department at its offices in Albany
    19  within ten days of changes of name or  address  by  a  registered  scrap
    20  processor.
    21    (b)  In  the  case of loss, destruction or damage, the department may,
    22  upon submission of a request in such form and manner as  the  department
    23  may  prescribe,  issue  a duplicate license upon payment of a fee of one
    24  hundred dollars.
    25    6. The fees established by this section shall not be refundable.
    26    7. Each scrap processor shall exhibit the license prescribed  by  this
    27  article at the place of business.
    28    8. No person, association, partnership or corporation shall:
    29    (a) present, or attempt to present, the license of another;
    30    (b)  knowingly give false evidence of a material nature to the depart-
    31  ment for the purpose of procuring a license; or
    32    (c) falsely represent themselves to be a registered scrap processor.
    33    9. Licenses issued to scrap processors shall not  be  transferable  or
    34  assignable.
    35    10.  (a)  The secretary of state shall promulgate such rules and regu-
    36  lations as are deemed necessary to effectuate the purposes of this arti-
    37  cle.
    38    (b) The secretary of  state  shall  have  the  power  to  enforce  the
    39  provisions of this article and upon complaint of any person, or upon the
    40  department's  initiative,  to  investigate  any  violation thereof or to
    41  investigate the business practices and business methods of  any  person,
    42  association,  partnership  or  corporation  applying  for  or  holding a
    43  license as a scrap processor. Each such applicant or registrant shall be
    44  obliged on request of the department, to supply such information, books,
    45  papers or records as may be required concerning  business  practices  or
    46  business  methods. Failure to comply with such lawful request shall be a
    47  ground for denying an  application  for  a  license,  or  for  revoking,
    48  suspending, or not renewing a license issued under this article.
    49    11. In order to assure that scrap processor licenses are not issued to
    50  or  held  by  unqualified  or unsuitable persons, the secretary of state
    51  may, consistent with articles twenty-three  and  twenty-three-A  of  the
    52  correction  law, deny, suspend or revoke any such license upon a written
    53  determination that such action is required to protect the public  health
    54  and safety and that:
    55    (a)  the license holder or applicant has been finally determined in an
    56  administrative, civil or criminal proceeding to have violated a substan-

        A. 6698                             4
     1  tive provision of this article, any substantive  regulation  promulgated
     2  pursuant  to  this  article,  a material condition of any license issued
     3  thereunder, or of any substantially similar statute,  regulation,  order
     4  or  license  condition of the federal or other state government relating
     5  to operation as a scrap processor; or
     6    (b) such licensee or applicant has been previously  denied  a  license
     7  for the same or substantially similar activity based upon one or more of
     8  the provisions of this subdivision; or
     9    (c)  such  license  holder  or  applicant  has  been  found in a civil
    10  proceeding to have committed an intentionally tortious act  in  relation
    11  to  operations  as a scrap processor or has been convicted in a criminal
    12  proceeding of a crime involving operation as a scrap processor; or
    13    (d) such licensee has been convicted of a felony  under  the  laws  of
    14  this  state  involving  fraud,  bribery,  perjury, or theft, or has been
    15  convicted under the laws of any other state or of the United States of a
    16  criminal offense which, if committed and prosecuted in this state, would
    17  constitute a similar felony under such laws of this state; or
    18    (e) such licensee in any matter within the jurisdiction of the depart-
    19  ment has been determined to have knowingly falsified a material fact, or
    20  knowingly submitted a false statement, or knowingly made use of a  false
    21  statement  in  connection  with any document or application submitted to
    22  the department or said agency; or
    23    (f) such licensee or applicant is either:
    24    (i) an individual who had a substantial interest in or acted as a high
    25  managerial agent or director for any corporation,  partnership,  associ-
    26  ation  or organization which committed an act or failed to act, and such
    27  act or failure to act could be the basis for the  denial  of  a  license
    28  pursuant  to  this section or regulations promulgated thereunder if such
    29  corporation, partnership, association  or  organization  applied  for  a
    30  license under this title; or
    31    (ii)  a corporation, partnership, association, or organization, or any
    32  principal thereof, or any person holding a substantial interest therein,
    33  which committed an act or failed to act, and such act or failure to  act
    34  could  be the basis for the denial of a license pursuant to this section
    35  or regulations promulgated thereunder if such corporation,  partnership,
    36  association or organization applied for a license under this title; or
    37    (iii)  a  corporation, partnership, association or organization or any
    38  high managerial agent or director  thereof,  or  any  person  holding  a
    39  substantial  interest therein, acting as high managerial agent or direc-
    40  tor for or holding a substantial interest in another corporation,  part-
    41  nership, association or organization which committed an act or failed to
    42  act, and such act or failure to act could be the basis for the denial of
    43  a license pursuant to this section or regulations promulgated thereunder
    44  had  such  other  corporation,  partnership, association or organization
    45  applied for a license under this title.
    46    For the purposes of this subdivision, "high managerial agent" has  the
    47  same meaning as is given that term in section 20.20 of the penal law.
    48    12.  Any  act  or failure to act which serves as a basis for denial or
    49  revocation of a license pursuant to this subdivision shall have occurred
    50  within five years from the date on which the application for a  license,
    51  renewal  or modification is submitted to the department or from the date
    52  on which the department serves notice of intent to revoke  or  modify  a
    53  license issued by the department in relation to an existing license.
    54    13. Any person denied a license or renewal on the grounds specified in
    55  this  section  shall  be entitled to a hearing within sixty days of such

        A. 6698                             5
     1  denial in the case of a new license, or within fifteen days in the  case
     2  of a renewal of any existing license.
     3    14. The department shall maintain and publish a registry of all regis-
     4  tered  scrap  processors,  which  shall list and identify on a county by
     5  county basis, all registered scrap processors  doing  business  in  this
     6  state. The department shall make the registry available on its website.
     7    §  3.  Section 69-g of the general business law, as amended by chapter
     8  302 of the laws of 2007, is amended to read as follows:
     9    § 69-g. Records. 1. [Such] A scrap processor shall  record  [(i)  each
    10  purchase  of any pig or pigs of metal, bronze or brass castings or parts
    11  thereof, sprues or gates or parts thereof, utility  wire  or  brass  car
    12  journals,  or  of  metal  beer  kegs,  and (ii)] each purchase of [iron,
    13  steel] ferrous and/or nonferrous scrap for a price of fifty  dollars  or
    14  more, and preserve such record for a period of three years; which record
    15  shall show the date of purchase, the name of the seller, [his] the sell-
    16  er's  residence or business address [by street, number, city, village or
    17  town], the driver's license number  or  information  from  a  government
    18  issued  photographic identification card, [if any, of such person, or by
    19  such description as will reasonably locate the seller,] and the type and
    20  quantity of such purchase[; and the]. The scrap  processor  shall  cause
    21  such  record to be signed by the seller or his or her agent. It shall be
    22  unlawful for any seller to refuse to  furnish  such  information  or  to
    23  furnish  incorrect or incomplete information. Such scrap processor shall
    24  also make and retain a copy of the government issued photographic  iden-
    25  tification  card used to verify the identity of [the] any natural person
    26  from whom the scrap metal was purchased and shall retain this copy in  a
    27  separate book, register or electronic archive for [two] three years from
    28  the date of purchase.
    29    2.  Such  records  shall  be  available  for  inspection by the police
    30  department of the state or the municipality in which  the  establishment
    31  is  located,  by  the department and by the local licensing authority so
    32  designated pursuant to subdivision one of section sixty-nine-f  of  this
    33  article.
    34    3.  By  no  later  than  September first, two thousand twenty, a scrap
    35  processor shall install and maintain  in  working  order  an  electronic
    36  video  recording  system at all scales and at all points of sale located
    37  on the premises of  the  scrap  processing  facility.  Electronic  video
    38  records  shall be maintained in an electronic archive for a period of no
    39  less than one hundred twenty days from the  date  when  such  electronic
    40  video record was made.
    41    4.  By  no  later  than  September first, two thousand twenty, a scrap
    42  processor shall maintain a record that said scrap processor  either  (a)
    43  possesses  refrigerant recovery equipment certified by the United States
    44  environmental protection agency or (b) has  executed  a  valid  contract
    45  with  a  refrigerant  removal contract or certified by the United States
    46  Environmental Protection Agency.
    47    § 4. Section 69-h of the general business law  is  renumbered  section
    48  69-i and two new sections 69-h and 69-j are added to read as follows:
    49    §  69-h.  Prohibition  on  sale  of certain items. Notwithstanding any
    50  provision of law, rule or regulation to the contrary, it shall be unlaw-
    51  ful for scrap processors to sell, offer for sale, or purchase as  scrap,
    52  any  metal  items  bearing  markings of any governmental entity, utility
    53  company, cemetery or railroad unless such items are offered for sale  by
    54  a  duly  authorized  employee  or agent of any such governmental entity,
    55  utility company, cemetery or railroad.

        A. 6698                             6
     1    § 69-j. Preemption of local laws. The provisions  of  sections  sixty-
     2  nine-g  and sixty-nine-h of this article shall preempt and supersede any
     3  local law which would otherwise regulate the  purchase  and/or  sale  of
     4  scrap  metal  and/or impose record keeping and/or reporting requirements
     5  in  a  manner  which  conflicts  with or imposed additional requirements
     6  other than those set forth therein, and/or which would require  a  scrap
     7  processor to hold scrap material for a specified period of time prior to
     8  the  processing or re-sale of such scrap material, or which would other-
     9  wise prohibit the acceptance of scrap material.
    10    § 5. Section 69-i of the general business law, as added by chapter 431
    11  of the laws of 1976 and as renumbered by section four of  this  act,  is
    12  amended to read as follows:
    13    § 69-i. Penalty. 1. [Each violation of this article by a scrap proces-
    14  sor  shall be a violation subject to a fine of not more than two hundred
    15  dollars, unless such violation shall be wilful, in which event it  shall
    16  be  a  misdemeanor  except,  however,  the  scrap processor shall not be
    17  liable for any violation of this article by a seller, his  agent,  or  a
    18  purported seller or agent.
    19    2.  Each violation of this article by a seller or his agent shall be a
    20  misdemeanor.] Any person, association, partnership  or  corporation  who
    21  violates  this  article  shall be liable for a criminal fine of not more
    22  than two thousand five hundred dollars and/or imprisonment for a term of
    23  not more than fifteen days. A second violation of this article committed
    24  within a ten-year period shall be punishable as a misdemeanor subject to
    25  a criminal fine of not more than five thousand dollars and/or  imprison-
    26  ment for a term of not more than one year.
    27    2.  Any  person,  association, partnership or corporation who violates
    28  this article shall be liable for a maximum civil penalty of two thousand
    29  five hundred dollars for a first offense, five thousand  dollars  for  a
    30  second  offense  within  a  twelve  month period and for a maximum civil
    31  penalty of ten thousand dollars for a  third  and  for  each  subsequent
    32  offense within a twelve-month period.
    33    3.  In  any  criminal  proceeding brought pursuant to this article, in
    34  addition to a term of imprisonment, where a person,  association,  part-
    35  nership  or corporation has gained money or property through a violation
    36  of this article the court, upon conviction thereof, in lieu of  imposing
    37  the  fine  authorized  for  the  offense  under  subdivision one of this
    38  section may sentence the defendant to pay an amount, fixed by the court,
    39  not exceeding double the amount of the defendant's gain from the commis-
    40  sion of the offense.
    41    4. (a) Notwithstanding any other provision of law, rule or regulation,
    42  in addition to those persons otherwise authorized to enforce this  arti-
    43  cle  and  adjudicate  violations thereof, the provisions of this article
    44  shall also be enforceable in a city with a population of one million  or
    45  more  by  an agency designated by a local law duly adopted by such city,
    46  and notices of violation may be returnable to the environmental  control
    47  board  of  such  city,  which  shall  have the power to impose the civil
    48  penalties herein provided. Notwithstanding any other provision  of  law,
    49  rule  or  regulation,  service  of  a notice of violation for an alleged
    50  violation of this subdivision committed in such city may  be  made  upon
    51  any person, association, partnership or corporation by first class mail,
    52  postage  prepaid, and any such notice served by mail shall be returnable
    53  only to such environmental control board. Such service  by  first  class
    54  mail  shall  be deemed complete upon mailing of the notice of violation,
    55  unless the notice of violation is returned to the sender by  the  United
    56  States  postal service for any reason other than refusal of delivery. In

        A. 6698                             7
     1  addition, any notice of violation for a violation  of  this  subdivision
     2  may  be served by a means prescribed in article three of the civil prac-
     3  tice law and rules or article three of the business corporation law.
     4    (b)  Notwithstanding  any  other provision of law, rule or regulation,
     5  such civil penalties imposed by such environmental control  board  shall
     6  be paid into the general fund of such city.
     7    (c) Any final order issued pursuant to this subdivision by an environ-
     8  mental  control board of a city with a population of one million or more
     9  shall constitute a judgment that may be entered in  any  place  provided
    10  for  the  entry of civil judgments within the state, and may be enforced
    11  without court proceedings in the same manner as the enforcement of money
    12  judgments entered in civil actions;  provided,  however,  that  no  such
    13  judgment  shall  be entered that exceeds the sum of twenty-five thousand
    14  dollars  for  each  person,  association,  partnership  or  corporation.
    15  Notwithstanding  the  preceding sentence, before a judgment based upon a
    16  default may be so entered, such environmental control  board  must  have
    17  notified  the  person,  association, partnership or corporation by first
    18  class mail in such form as such environmental control board may  direct:
    19  (1)  of the default decision and order and the penalty imposed; (2) that
    20  a judgment will be entered in any place provided for the entry of  civil
    21  judgments  in  the  state;  and  (3)  that entry of such judgment may be
    22  avoided by requesting a stay of default for good cause shown and  either
    23  requesting  a  hearing  or entering a plea pursuant to the rules of such
    24  environmental control board within thirty days of the  mailing  of  such
    25  notice.  No judgment based upon a default may be so entered by the envi-
    26  ronmental control board within less than sixty days from the  completion
    27  of  service  by mail of the notice of violation as provided in paragraph
    28  (a) of this subdivision. Any requirement of any provision of  law  other
    29  than  this  subdivision  that  relates  to  the manner of service of the
    30  notice of violation that precedes any final order of such  environmental
    31  control  board  shall not apply to a final order issued pursuant to this
    32  subdivision. A judgment entered pursuant to this paragraph shall  remain
    33  in full force and effect for eight years.
    34    §  6.    This  act  shall  take  effect on the first of September next
    35  succeeding the date on which it  shall  have  become  a  law,  provided,
    36  however,  that  the  department  of  state may take all steps necessary,
    37  including but not limited to the promulgation of rules and  regulations,
    38  to ensure the prompt implementation of this act on its effective date.