Bill Text: NY S06915 | 2017-2018 | General Assembly | Introduced


Bill Title: Requires all massage therapy businesses to be licensed by the department of state.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CONSUMER PROTECTION [S06915 Detail]

Download: New_York-2017-S06915-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          6915
                               2017-2018 Regular Sessions
                    IN SENATE
                                    October 13, 2017
                                       ___________
        Introduced  by  Sen. PERALTA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
        AN ACT to amend the general business  law  and  the  education  law,  in
          relation to providing for the licensing of massage therapy businesses
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The general business law is amended by adding a new article
     2  40 to read as follows:
     3                                 ARTICLE 40
     4                        LICENSING OF MASSAGE THERAPY
     5                                 BUSINESSES
     6  Section 900. Definitions.
     7          901. License required.
     8          902. Powers of the secretary.
     9          903. Rules and regulations.
    10          904. Massage therapy business license; requirements.
    11          905. License application; procedure; requirements.
    12          906. Licenses; display; renewal; duplicates.
    13          907. Fees.
    14          908. Administration.
    15          909. Denial of license; complaints; notice of hearing.
    16          910. Penalties.
    17          911. Judicial review.
    18          912. Official acts used as evidence.
    19          913. Disposition of moneys.
    20          914. Application of article.
    21          915. Separability clause.
    22    § 900. Definitions. As used in this article, unless  context  requires
    23  otherwise:
    24    1. "Department" means the department of state.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13585-01-7

        S. 6915                             2
     1    2.  "Licensee"  means  a  person  licensed pursuant to this article to
     2  operate a massage therapy business.
     3    3. "Massage therapy" means the practice of massage therapy, as defined
     4  in section seventy-eight hundred one of the education law.
     5    4.  "Massage therapy business" means the business of providing massage
     6  therapy to the public at a fixed location.
     7    5. "Person" means an  individual,  firm,  limited  liability  company,
     8  partnership or corporation.
     9    6. "Secretary" means secretary of state.
    10    §  901.  License  required.  No  person shall own, control or operate,
    11  whether as a sole proprietor, partner, shareholder, officer, independent
    12  contractor or other person, a massage therapy  business  without  having
    13  received  a  license  for  such  business in the manner provided in this
    14  article.
    15    § 902. Powers of the secretary. In addition to the powers  and  duties
    16  elsewhere prescribed in this article, the secretary shall have power to:
    17    1.  Appoint  a  sufficient  number of assistants, inspectors and other
    18  employees as may be necessary to carry out the provisions of this  arti-
    19  cle, to prescribe their duties, and to fix their compensation within the
    20  amount appropriated therefor;
    21    2.  Examine  the qualifications and fitness of applicants for licenses
    22  to operate massage therapy businesses;
    23    3. Keep records of all  licenses  issued,  suspended  or  revoked,  or
    24  orders directing the cessation of unlicensed activities;
    25    4.  Assist the education department in the implementation and enforce-
    26  ment of the provisions of article one hundred fifty-five of  the  educa-
    27  tion law; and
    28    5.  Adopt  such  rules  and  regulations  not  inconsistent  with  the
    29  provisions of this article or article  one  hundred  fifty-five  of  the
    30  education  law, as may be necessary with respect to the form and content
    31  of applications for licenses, the reception thereof,  the  investigation
    32  and  examination  of  applicants,  and  the  other matters incidental or
    33  appropriate to the powers and duties of the secretary as  prescribed  by
    34  this  article  and  for the proper administration and enforcement of the
    35  provisions of this article.
    36    § 903. Rules and regulations. The secretary, in consultation with  the
    37  state  board for massage therapy, shall promulgate rules and regulations
    38  which establish standards for practice and operation by licensees  under
    39  this  article  in  order to ensure the health, safety and welfare of the
    40  public including persons licensed  or  authorized  to  practice  massage
    41  therapy  pursuant to article one hundred fifty-five of the education law
    42  when they are working within a massage therapy business.  Such rules and
    43  regulations shall include, but not be limited to,  the  sanitary  condi-
    44  tions  and  procedures  required  to be maintained, and the provision of
    45  service  by  massage  therapists,  masseurs  and  masseuses  at   remote
    46  locations other than such professional's home provided that such practi-
    47  tioner  holds  a  massage therapy business license to operate at a fixed
    48  location or is employed by the holder  of  a  massage  therapy  business
    49  license.
    50    §  904.  Massage therapy business license; requirements. 1. Any person
    51  who receives a massage therapy business license shall operate such busi-
    52  ness at the location named in the license and  in  accordance  with  the
    53  rules  and  regulations promulgated by the secretary pursuant to section
    54  nine hundred three of this article. Any or all of  the  practices  regu-
    55  lated  by  article  one  hundred  fifty-five of the education law may be
    56  provided under one massage therapy business  license  so  long  as  each

        S. 6915                             3
     1  practitioner  is  licensed pursuant to article one hundred fifty-five of
     2  the education law.
     3    2.  Each  massage  therapy  business  licensee shall file and maintain
     4  during the term of the license evidence of a bond  or  liability  insur-
     5  ance.
     6    § 905. License application; procedure; requirements.  1. a. Any person
     7  intending to own or operate a massage therapy business, shall first make
     8  application to the secretary for a license therefor.
     9    b.  Such  application  shall be in a form and manner prescribed by the
    10  secretary and shall contain such  information  as,  in  the  secretary's
    11  judgment,  is  reasonable  and necessary to determine the qualifications
    12  and fitness for licensing of the applicant.
    13    c. The application shall be subscribed by the applicant  and  affirmed
    14  under penalty of perjury.
    15    d.  Each  application  shall  be accompanied by the appropriate fee as
    16  prescribed by this article.
    17    2.  a. Any person, eighteen years of age or older, or any firm, limit-
    18  ed liability company, partnership or corporation  having  at  least  one
    19  member  eighteen  years of age or older may apply to the secretary for a
    20  massage therapy business license.
    21    b. Each such application for a massage therapy business license  shall
    22  be accompanied by evidence of a bond or liability insurance.
    23    3.  Notwithstanding  any  provision  contained  in this article to the
    24  contrary, if any person, eligible for any license pursuant to this arti-
    25  cle, should be called to active military service at or during  the  time
    26  application  for  any  license  is  required to be filed and license fee
    27  paid, pursuant to the provisions of  this  article,  the  period  within
    28  which  said  application  may  be  filed and license fee may be paid, is
    29  extended on behalf of such person, until three months after  the  termi-
    30  nation of said military service.
    31    §  906.  Licenses; display; renewal; duplicates. 1. All licenses shall
    32  expire four years from the date of issuance.
    33    2. No license shall be assignable or transferrable except pursuant  to
    34  the provisions of this article.
    35    3.  A  massage  therapy  business  license  may  be assigned. When the
    36  massage therapy business licensee is a partnership or a limited  liabil-
    37  ity  company,  or  a  corporation,  the license may be assigned upon the
    38  consent of all members of a partnership or  a  majority  of  the  voting
    39  members of a limited liability company or the majority shareholders of a
    40  corporation,  respectively. The application for such transfer or assign-
    41  ment must be accompanied by proof satisfactory to  the  department  that
    42  the  requirements  provided in this subdivision have been complied with.
    43  No assignment or transfer shall become effective unless  and  until  the
    44  endorsement  has  been made on the face of the license by the department
    45  and such license, as endorsed, has been  returned  to  the  assignee  or
    46  transferee. All such requests for endorsements shall be accompanied by a
    47  five  dollar  fee.  A  bona fide purchaser of a licensed massage therapy
    48  business may continue to use the license of the seller for a  period  of
    49  thirty days from the date of the sale, provided there is endorsed on the
    50  face  thereof  the  name of the purchaser, the date of the sale, and the
    51  signatures of the seller and the purchaser; and provided further  within
    52  five  working  days from the date of the sale an application, in accord-
    53  ance with the provisions of this article,  shall  be  presented  by  the
    54  purchaser to the secretary for a massage therapy business license.
    55    4.  A massage therapy business license issued to an individual or to a
    56  partnership may be used after the death of the  licensed  individual  or

        S. 6915                             4
     1  co-partner  by the next of kin or duly appointed administrator or execu-
     2  tor in the name of the estate for a period of not more than one  hundred
     3  twenty  days  from  the  date  of death of such individual or co-partner
     4  provided that there is endorsed upon the face of the license certificate
     5  after  the  name  of the decedent the word "deceased", the date of death
     6  and the name of the next of kin, administrator or executor  under  whose
     7  authority  the  license  is being used; the period of one hundred twenty
     8  days aforesaid may be extended upon application to the secretary and for
     9  good cause shown for an additional period  not  to  exceed  one  hundred
    10  twenty  days.  Any  license  so continued which shall expire during such
    11  period of one hundred twenty  days  or  the  extension  thereof  may  be
    12  renewed by the next of kin, administrator or executor for the balance of
    13  such period or the extension thereof.
    14    5.  A  license  certificate  issued  pursuant to this article shall be
    15  posted in some conspicuous place in  the  licensed  premises.    At  the
    16  entrance to each licensed premises or at the entrance to any place where
    17  the  practice  of  massage  therapy is conducted, a sign shall be posted
    18  which shall include the rules and regulations  governing  such  practice
    19  and  a  manner  in which aggrieved persons may register a complaint with
    20  the department or education department.   The department  shall  prepare
    21  and furnish such sign to each licensee.
    22    6. Any license, which has not been suspended or revoked, may, upon the
    23  payment  of  the  renewal fee, be renewed for additional periods of four
    24  years from its application, upon the filing of an application  for  such
    25  renewal, on a form to be prescribed by the secretary.
    26    7. Any person failing to file for renewal of a license pursuant to the
    27  provisions  of  this  article  within one year immediately following the
    28  expiration of such person's last license shall pay an additional fee  of
    29  ten dollars.
    30    8.  A  duplicate  license  certificate  may  be  issued  for one lost,
    31  destroyed  or  mutilated  upon  the  application  therefor  on  a   form
    32  prescribed by the secretary and the payment of the fee prescribed there-
    33  for  by  this  article.  Each such duplicate license shall have the word
    34  "duplicate" stamped across the face thereof  and  shall  bear  the  same
    35  number as the one it replaces.
    36    9.  Notice in writing shall be given to the secretary at the office of
    37  the secretary in Albany by the holder  of  a  massage  therapy  business
    38  license of any change of address. The licensee shall correct the address
    39  on the license upon the filing of such notice.
    40    10.  Any licensee who fails to file any notice of change in the status
    41  of a license required by the provisions of this article shall be subject
    42  to the monetary fines set forth in section nine hundred  eight  of  this
    43  article.
    44    §  907.  Fees. 1. The fee for a massage therapy business license shall
    45  be sixty dollars initially and sixty dollars for each renewal thereof.
    46    2. Fees collected pursuant to this article shall be deposited  to  the
    47  credit of the business and licensing services account established pursu-
    48  ant  to  the  provisions  of section ninety-seven-y of the state finance
    49  law.
    50    3. The fee for issuing a duplicate  license  certificate,  in  substi-
    51  tution for one lost, destroyed or mutilated shall be ten dollars.
    52    4.  The  fee for changing a name on a massage therapy business license
    53  shall be thirty dollars.
    54    5. The fees set forth in this article  shall  be  those  for  licenses
    55  issued for the license period of four years.

        S. 6915                             5
     1    §  908.  Administration.  1.  Suspension and revocation of licenses or
     2  registrations; fines; reprimands. A  license  issued  pursuant  to  this
     3  article  may  be  suspended  or  revoked,  or  a fine not exceeding five
     4  hundred dollars payable to the department may be imposed for any one  or
     5  more of the following causes:
     6    a. Fraud or bribery in securing a license.
     7    b.  The  making  of any false statement as to a material matter in any
     8  application or other statement or certificate required by or pursuant to
     9  this article.
    10    c. Incompetence or untrustworthiness.
    11    d. Failure to display the license as provided in this article.
    12    e. Violation of any provision of this article or article  one  hundred
    13  fifty-five  of  the  education law, or of any rule or regulation adopted
    14  pursuant thereto.
    15    f. Conviction of any of the following crimes subsequent to  the  issu-
    16  ance  of  a license pursuant to this article: fraud pursuant to sections
    17  170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and  190.65;  falsifying
    18  business  records  pursuant to section 175.10; grand larceny pursuant to
    19  article 155;  bribery  pursuant  to  sections  180.03,  180.08,  180.15,
    20  180.25,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
    21  perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
    22  sections 120.05, 120.10, 120.11, 120.12;  robbery  pursuant  to  article
    23  160;  homicide  pursuant  to  sections  125.25  and 125.27; manslaughter
    24  pursuant to sections 125.15 and 125.20; kidnapping and  unlawful  impri-
    25  sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
    26  possession  pursuant to sections 265.02, 265.03 and 265.04; criminal use
    27  of a weapon pursuant to sections 265.08 and 265.09; criminal sale  of  a
    28  weapon  pursuant  to sections 265.11 and 265.12; compelling prostitution
    29  pursuant to section 230.33; sex trafficking pursuant to section  230.34;
    30  and  sex  offenses  pursuant  to article 130 of the penal law. Provided,
    31  however, that for the purposes of this article, none  of  the  following
    32  shall  be  considered  criminal  convictions  or reported as such: (i) a
    33  conviction for which an executive pardon has been issued pursuant to the
    34  executive law; (ii) a conviction which has been vacated and replaced  by
    35  a  youthful offender finding pursuant to article seven hundred twenty of
    36  the criminal procedure law, or the applicable provisions of law  of  any
    37  other jurisdiction; or (iii) a conviction the records of which have been
    38  expunged  or sealed pursuant to the applicable provisions of the laws of
    39  this state or of any other jurisdiction; and (iv) a conviction for which
    40  other evidence of successful rehabilitation to remove the disability has
    41  been issued.
    42    Provided, however, a fine shall not be imposed for the  causes  speci-
    43  fied in paragraph f of this subdivision.
    44    In  lieu  of  or in conjunction with the suspension or revocation of a
    45  license, or the imposition of a  fine  pursuant  to  this  section,  the
    46  secretary  may issue a reprimand. When a license issued pursuant to this
    47  article is revoked, such license shall not  be  reinstated  or  reissued
    48  until after the expiration of a period of one year from the date of such
    49  revocation. No license shall be issued after a second revocation.
    50    2.  Unlicensed  activities.  a.   Notwithstanding any provision to the
    51  contrary, if the secretary finds that  a  person,  partnership,  limited
    52  liability  company  or business corporation, is holding himself, herself
    53  or itself out as or is acting as, temporarily or  otherwise,  a  massage
    54  therapy  business  within this state without a valid license, the secre-
    55  tary shall provide the person, partnership, limited liability company or
    56  business corporation with a written notice of violation  and  complaint,

        S. 6915                             6
     1  and  shall  afford  an  opportunity  to be heard, either in person or by
     2  counsel, before an administrative law judge no sooner  than  three  days
     3  from delivery of such notice of violation. If documentary proof that the
     4  deficiency  has been cured is not provided to the secretary at or before
     5  such hearing, following a hearing determination that  unlicensed  activ-
     6  ities  have occurred, the secretary may issue an immediate order direct-
     7  ing the cessation of any activity for which a massage therapy license is
     8  required.
     9    b. The secretary may issue an order directing  the  cessation  of  any
    10  activity  if the secretary finds that a person, including a partnership,
    11  a limited liability company or business corporation, is holding himself,
    12  herself or itself out as or is acting as, temporarily  or  otherwise,  a
    13  massage  therapy  business  within  the state without a (i) bond or (ii)
    14  liability insurance or liability coverage which  is  covered  through  a
    15  bond.  The  secretary shall, before making such determination and order,
    16  afford such person, partnership, limited liability company  or  business
    17  corporation an opportunity to be heard in person or by counsel in refer-
    18  ence thereto in an adjudicatory proceeding held pursuant to section nine
    19  hundred  nine  of  this article. The enforcement of this provision shall
    20  require the department of financial services to certify  in  writing  to
    21  the  secretary that any bonds or liability insurance that is required by
    22  the department is readily available to massage therapy  businesses  from
    23  the market place.
    24    c.  The  attorney  general,  acting  on  behalf  of the secretary, may
    25  commence an action or proceeding in a court of competent jurisdiction to
    26  obtain a judgment against such person,  partnership,  limited  liability
    27  company or business corporation in an amount equal to that assessed as a
    28  civil  penalty.  Said  judgment  shall  thereafter be enforceable by any
    29  means authorized by the civil practice law and rules.
    30    d. Where a massage therapy  business  operator  continues  to  operate
    31  without  a  license  following the issuance of an order by the secretary
    32  directing cessation, the attorney  general,  acting  on  behalf  of  the
    33  secretary,  may commence an action or proceeding in a court of competent
    34  jurisdiction against such operator to obtain an order enjoining  further
    35  operation  of  such  business.  A massage therapy business that has been
    36  ordered to cease operation shall not re-open without first  obtaining  a
    37  license as required by this article and paying any assessed fines.
    38    §  909.  Denial  of  license;  complaints; notice of hearing. 1.   The
    39  department shall, before making a final determination to deny an  appli-
    40  cation for a license, notify the applicant in writing of the reasons for
    41  such proposed denial and shall afford the applicant an opportunity to be
    42  heard  in  person or by counsel prior to denial of the application. Such
    43  notification shall be served personally or by certified mail or  in  any
    44  manner  authorized  by the civil practice law and rules for service of a
    45  summons. If a hearing is requested, such hearing shall be held  at  such
    46  time and place as the department shall prescribe. If the applicant fails
    47  to make a written request for a hearing within thirty days after receipt
    48  of  such  notification, then the notification of denial shall become the
    49  final determination of the department. The department,  acting  by  such
    50  officer  or  person  in  the  department as the secretary may designate,
    51  shall have the power to subpoena and bring before the officer or  person
    52  so  designated  any  person in this state, and administer an oath to and
    53  take testimony of any person or cause his or her deposition to be taken.
    54  A subpoena issued under this section shall be  regulated  by  the  civil
    55  practice  law  and  rules.  If,  after  such hearing, the application is
    56  denied, written notice of such denial shall be served upon the applicant

        S. 6915                             7
     1  personally or by certified mail or in any manner authorized by the civil
     2  practice law and rules for the service of a summons.
     3    2.  The department shall, before revoking or suspending any license or
     4  imposing any fine or reprimand on the holder thereof, or before  issuing
     5  any order directing the cessation of unlicensed activities, and at least
     6  ten  days  prior  to the date set for the hearing, notify in writing the
     7  holder of such license, or the person alleged to have engaged  in  unli-
     8  censed  activities,  of any charges made and shall afford such person an
     9  opportunity to be heard in person or by counsel  in  reference  thereto.
    10  Such  written notice may be served by delivery of same personally to the
    11  licensee or person charged, or by mailing same by certified mail to  the
    12  last  known  business  or  other  address provided by such person to the
    13  secretary, or by any method authorized by the  civil  practice  law  and
    14  rules for the service of a summons. The hearing on such charges shall be
    15  at such time and place as the department shall prescribe.
    16    3.  The department, acting by such officer or person in the department
    17  as the secretary may designate, shall have the  power  to  subpoena  and
    18  bring  before  the  officer  or  person so designated any person in this
    19  state, and administer an oath to and take testimony  of  any  person  or
    20  cause  his  deposition to be taken. A subpoena issued under this section
    21  shall be regulated by the civil practice law and rules.
    22    § 910. Penalties. 1.  The following violations shall be  deemed  sepa-
    23  rate offenses and be deemed a misdemeanor, and upon conviction, shall be
    24  punishable by imprisonment for not more than six months, or by a fine of
    25  up  to two thousand five hundred dollars or by both such fine and impri-
    26  sonment:
    27    (a) the operation of a massage therapy business without a  license  or
    28  when such license has been suspended or revoked; or
    29    (b)  the  operation  of  a massage therapy business in violation of an
    30  order directing the cessation  of  unlicensed  activity  issued  by  the
    31  secretary pursuant to section nine hundred eight of this article.
    32    2.  The  operation of a massage therapy business without a (a) bond or
    33  (b) liability insurance or liability coverage which is covered through a
    34  bond shall be punishable by a civil penalty of up to two  thousand  five
    35  hundred  dollars.  The  enforcement  of this provision shall require the
    36  department of financial services to certify in writing to the  secretary
    37  that any bonds or liability insurance that is required by the department
    38  is  readily  available  to  massage  therapy  businesses from the market
    39  place.
    40    § 911. Judicial review. The action of  the  secretary  in  suspending,
    41  revoking  or  refusing  to issue or renew a license, or issuing an order
    42  directing the cessation of unlicensed activity or  imposing  a  fine  or
    43  reprimand  may be appealed by a proceeding brought under and pursuant to
    44  article seventy-eight of the civil practice law and rules.
    45    § 912. Official acts used as evidence. The official acts of the secre-
    46  tary and the department shall be prima facie evidence of the facts ther-
    47  ein and shall be entitled to be received as evidence on all  actions  at
    48  law  and  other legal proceedings in any court or before any board, body
    49  or officer.
    50    § 913. Disposition of moneys. All moneys derived from the operation of
    51  this article shall be deposited  to  the  credit  of  the  business  and
    52  licensing  services  account established pursuant to section ninety-sev-
    53  en-y of the state finance law.
    54    § 914. Application of article. 1. This article shall not apply  to  or
    55  affect  the  operation  of any business at which the practice of massage

        S. 6915                             8
     1  therapy is conducted by an exempt person as defined in section  seventy-
     2  eight hundred five of the education law.
     3    2.  This  article  shall not apply to, affect or prevent home adminis-
     4  tration, without compensation or other consideration, of massage  thera-
     5  py.
     6    §  915.  Separability clause. If any part or provision of this article
     7  or the application thereof to any person  or  circumstance  be  adjudged
     8  invalid  by  any court of competent jurisdiction, such judgment shall be
     9  confined in its operation to the part, provision or application directly
    10  involved in the controversy in  which  such  judgment  shall  have  been
    11  rendered and shall not affect or impair the validity of the remainder of
    12  this  article  or  application thereof to other persons or circumstances
    13  and the legislature hereby declares that  it  would  have  enacted  this
    14  article or the remainder thereof had the invalidity of such provision or
    15  application thereof been apparent.
    16    § 2. The education law is amended by adding a new section 7808 to read
    17  as follows:
    18    § 7808. Cooperation with the department of state. The department shall
    19  cooperate with and provide assistance to the department of state for the
    20  purposes  of implementing article forty of the general business law, and
    21  shall accept and receive complaints from the department of state  relat-
    22  ing to the practice of massage therapy.
    23    §  3. This act shall take effect on the first of January next succeed-
    24  ing the date on which it shall have become  a  law;  provided,  however,
    25  that  effective  immediately,  any  actions  necessary  to implement the
    26  provisions of this act on its effective date are authorized and directed
    27  to be completed on or before such effective date.
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