S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3231
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             February 4, 2019
                                ___________
 
 Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Consumer Protection
 
 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:
 
   Section 1. The general business law is amended by adding a new article
 40 to read as follows:
                                ARTICLE 40
                       LICENSING OF MASSAGE THERAPY
                                BUSINESSES
 SECTION 900. DEFINITIONS.
         901. LICENSE REQUIRED.
         902. POWERS OF THE SECRETARY.
         903. RULES AND REGULATIONS.
         904. MASSAGE THERAPY BUSINESS LICENSE; REQUIREMENTS.
         905. LICENSE APPLICATION; PROCEDURE; REQUIREMENTS.
         906. LICENSES; DISPLAY; RENEWAL; DUPLICATES.
         907. FEES.
         908. ADMINISTRATION.
         909. DENIAL OF LICENSE; COMPLAINTS; NOTICE OF HEARING.
         910. PENALTIES.
         911. JUDICIAL REVIEW.
         912. OFFICIAL ACTS USED AS EVIDENCE.
         913. DISPOSITION OF MONEYS.
         914. APPLICATION OF ARTICLE.
         915. SEPARABILITY CLAUSE.
   § 900. DEFINITIONS. AS USED IN THIS ARTICLE, UNLESS  CONTEXT  REQUIRES
 OTHERWISE:
   1. "DEPARTMENT" MEANS THE DEPARTMENT OF STATE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05587-01-9
              

 S. 3231                             2
 
   2.  "LICENSEE"  MEANS  A  PERSON  LICENSED PURSUANT TO THIS ARTICLE TO
 OPERATE A MASSAGE THERAPY BUSINESS.
   3. "MASSAGE THERAPY" MEANS THE PRACTICE OF MASSAGE THERAPY, AS DEFINED
 IN SECTION SEVENTY-EIGHT HUNDRED ONE OF THE EDUCATION LAW.
   4.  "MASSAGE THERAPY BUSINESS" MEANS THE BUSINESS OF PROVIDING MASSAGE
 THERAPY TO THE PUBLIC AT A FIXED LOCATION.
   5. "PERSON" MEANS AN  INDIVIDUAL,  FIRM,  LIMITED  LIABILITY  COMPANY,
 PARTNERSHIP OR CORPORATION.
   6. "SECRETARY" MEANS SECRETARY OF STATE.
   §  901.  LICENSE  REQUIRED.  NO  PERSON SHALL OWN, CONTROL OR OPERATE,
 WHETHER AS A SOLE PROPRIETOR, PARTNER, SHAREHOLDER, OFFICER, INDEPENDENT
 CONTRACTOR OR OTHER PERSON, A MASSAGE THERAPY  BUSINESS  WITHOUT  HAVING
 RECEIVED  A  LICENSE  FOR  SUCH  BUSINESS IN THE MANNER PROVIDED IN THIS
 ARTICLE.
   § 902. POWERS OF THE SECRETARY. IN ADDITION TO THE POWERS  AND  DUTIES
 ELSEWHERE PRESCRIBED IN THIS ARTICLE, THE SECRETARY SHALL HAVE POWER TO:
   1.  APPOINT  A  SUFFICIENT  NUMBER OF ASSISTANTS, INSPECTORS AND OTHER
 EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS  ARTI-
 CLE, TO PRESCRIBE THEIR DUTIES, AND TO FIX THEIR COMPENSATION WITHIN THE
 AMOUNT APPROPRIATED THEREFOR;
   2.  EXAMINE  THE QUALIFICATIONS AND FITNESS OF APPLICANTS FOR LICENSES
 TO OPERATE MASSAGE THERAPY BUSINESSES;
   3. KEEP RECORDS OF ALL  LICENSES  ISSUED,  SUSPENDED  OR  REVOKED,  OR
 ORDERS DIRECTING THE CESSATION OF UNLICENSED ACTIVITIES;
   4.  ASSIST THE EDUCATION DEPARTMENT IN THE IMPLEMENTATION AND ENFORCE-
 MENT OF THE PROVISIONS OF ARTICLE ONE HUNDRED FIFTY-FIVE OF  THE  EDUCA-
 TION LAW; AND
   5.  ADOPT  SUCH  RULES  AND  REGULATIONS  NOT  INCONSISTENT  WITH  THE
 PROVISIONS OF THIS ARTICLE OR ARTICLE  ONE  HUNDRED  FIFTY-FIVE  OF  THE
 EDUCATION  LAW, AS MAY BE NECESSARY WITH RESPECT TO THE FORM AND CONTENT
 OF APPLICATIONS FOR LICENSES, THE RECEPTION THEREOF,  THE  INVESTIGATION
 AND  EXAMINATION  OF  APPLICANTS,  AND  THE  OTHER MATTERS INCIDENTAL OR
 APPROPRIATE TO THE POWERS AND DUTIES OF THE SECRETARY AS  PRESCRIBED  BY
 THIS  ARTICLE  AND  FOR THE PROPER ADMINISTRATION AND ENFORCEMENT OF THE
 PROVISIONS OF THIS ARTICLE.
   § 903. RULES AND REGULATIONS. THE SECRETARY, IN CONSULTATION WITH  THE
 STATE  BOARD FOR MASSAGE THERAPY, SHALL PROMULGATE RULES AND REGULATIONS
 WHICH ESTABLISH STANDARDS FOR PRACTICE AND OPERATION BY LICENSEES  UNDER
 THIS  ARTICLE  IN  ORDER TO ENSURE THE HEALTH, SAFETY AND WELFARE OF THE
 PUBLIC INCLUDING PERSONS LICENSED  OR  AUTHORIZED  TO  PRACTICE  MASSAGE
 THERAPY  PURSUANT TO ARTICLE ONE HUNDRED FIFTY-FIVE OF THE EDUCATION LAW
 WHEN THEY ARE WORKING WITHIN A MASSAGE THERAPY BUSINESS.  SUCH RULES AND
 REGULATIONS SHALL INCLUDE, BUT NOT BE LIMITED TO,  THE  SANITARY  CONDI-
 TIONS  AND  PROCEDURES  REQUIRED  TO BE MAINTAINED, AND THE PROVISION OF
 SERVICE  BY  MASSAGE  THERAPISTS,  MASSEURS  AND  MASSEUSES  AT   REMOTE
 LOCATIONS OTHER THAN SUCH PROFESSIONAL'S HOME PROVIDED THAT SUCH PRACTI-
 TIONER  HOLDS  A  MASSAGE THERAPY BUSINESS LICENSE TO OPERATE AT A FIXED
 LOCATION OR IS EMPLOYED BY THE HOLDER  OF  A  MASSAGE  THERAPY  BUSINESS
 LICENSE.
   §  904.  MASSAGE THERAPY BUSINESS LICENSE; REQUIREMENTS. 1. ANY PERSON
 WHO RECEIVES A MASSAGE THERAPY BUSINESS LICENSE SHALL OPERATE SUCH BUSI-
 NESS AT THE LOCATION NAMED IN THE LICENSE AND  IN  ACCORDANCE  WITH  THE
 RULES  AND  REGULATIONS PROMULGATED BY THE SECRETARY PURSUANT TO SECTION
 NINE HUNDRED THREE OF THIS ARTICLE. ANY OR ALL OF  THE  PRACTICES  REGU-
 LATED  BY  ARTICLE  ONE  HUNDRED  FIFTY-FIVE OF THE EDUCATION LAW MAY BE
 PROVIDED UNDER ONE MASSAGE THERAPY BUSINESS  LICENSE  SO  LONG  AS  EACH

 S. 3231                             3
 
 PRACTITIONER  IS  LICENSED PURSUANT TO ARTICLE ONE HUNDRED FIFTY-FIVE OF
 THE EDUCATION LAW.
   2.  EACH  MASSAGE  THERAPY  BUSINESS  LICENSEE SHALL FILE AND MAINTAIN
 DURING THE TERM OF THE LICENSE EVIDENCE OF A BOND  OR  LIABILITY  INSUR-
 ANCE.
   § 905. LICENSE APPLICATION; PROCEDURE; REQUIREMENTS.  1. A. ANY PERSON
 INTENDING TO OWN OR OPERATE A MASSAGE THERAPY BUSINESS, SHALL FIRST MAKE
 APPLICATION TO THE SECRETARY FOR A LICENSE THEREFOR.
   B.  SUCH  APPLICATION  SHALL BE IN A FORM AND MANNER PRESCRIBED BY THE
 SECRETARY AND SHALL CONTAIN SUCH  INFORMATION  AS,  IN  THE  SECRETARY'S
 JUDGMENT,  IS  REASONABLE  AND NECESSARY TO DETERMINE THE QUALIFICATIONS
 AND FITNESS FOR LICENSING OF THE APPLICANT.
   C. THE APPLICATION SHALL BE SUBSCRIBED BY THE APPLICANT  AND  AFFIRMED
 UNDER PENALTY OF PERJURY.
   D.  EACH  APPLICATION  SHALL  BE ACCOMPANIED BY THE APPROPRIATE FEE AS
 PRESCRIBED BY THIS ARTICLE.
   2.  A. ANY PERSON, EIGHTEEN YEARS OF AGE OR OLDER, OR ANY FIRM, LIMIT-
 ED LIABILITY COMPANY, PARTNERSHIP OR CORPORATION  HAVING  AT  LEAST  ONE
 MEMBER  EIGHTEEN  YEARS OF AGE OR OLDER MAY APPLY TO THE SECRETARY FOR A
 MASSAGE THERAPY BUSINESS LICENSE.
   B. EACH SUCH APPLICATION FOR A MASSAGE THERAPY BUSINESS LICENSE  SHALL
 BE ACCOMPANIED BY EVIDENCE OF A BOND OR LIABILITY INSURANCE.
   3.  NOTWITHSTANDING  ANY  PROVISION  CONTAINED  IN THIS ARTICLE TO THE
 CONTRARY, IF ANY PERSON, ELIGIBLE FOR ANY LICENSE PURSUANT TO THIS ARTI-
 CLE, SHOULD BE CALLED TO ACTIVE MILITARY SERVICE AT OR DURING  THE  TIME
 APPLICATION  FOR  ANY  LICENSE  IS  REQUIRED TO BE FILED AND LICENSE FEE
 PAID, PURSUANT TO THE PROVISIONS OF  THIS  ARTICLE,  THE  PERIOD  WITHIN
 WHICH  SAID  APPLICATION  MAY  BE  FILED AND LICENSE FEE MAY BE PAID, IS
 EXTENDED ON BEHALF OF SUCH PERSON, UNTIL THREE MONTHS AFTER  THE  TERMI-
 NATION OF SAID MILITARY SERVICE.
   §  906.  LICENSES; DISPLAY; RENEWAL; DUPLICATES. 1. ALL LICENSES SHALL
 EXPIRE FOUR YEARS FROM THE DATE OF ISSUANCE.
   2. NO LICENSE SHALL BE ASSIGNABLE OR TRANSFERRABLE EXCEPT PURSUANT  TO
 THE PROVISIONS OF THIS ARTICLE.
   3.  A  MASSAGE  THERAPY  BUSINESS  LICENSE  MAY  BE ASSIGNED. WHEN THE
 MASSAGE THERAPY BUSINESS LICENSEE IS A PARTNERSHIP OR A LIMITED  LIABIL-
 ITY  COMPANY,  OR  A  CORPORATION,  THE LICENSE MAY BE ASSIGNED UPON THE
 CONSENT OF ALL MEMBERS OF A PARTNERSHIP OR  A  MAJORITY  OF  THE  VOTING
 MEMBERS OF A LIMITED LIABILITY COMPANY OR THE MAJORITY SHAREHOLDERS OF A
 CORPORATION,  RESPECTIVELY. THE APPLICATION FOR SUCH TRANSFER OR ASSIGN-
 MENT MUST BE ACCOMPANIED BY PROOF SATISFACTORY TO  THE  DEPARTMENT  THAT
 THE  REQUIREMENTS  PROVIDED IN THIS SUBDIVISION HAVE BEEN COMPLIED WITH.
 NO ASSIGNMENT OR TRANSFER SHALL BECOME EFFECTIVE UNLESS  AND  UNTIL  THE
 ENDORSEMENT  HAS  BEEN MADE ON THE FACE OF THE LICENSE BY THE DEPARTMENT
 AND SUCH LICENSE, AS ENDORSED, HAS BEEN  RETURNED  TO  THE  ASSIGNEE  OR
 TRANSFEREE. ALL SUCH REQUESTS FOR ENDORSEMENTS SHALL BE ACCOMPANIED BY A
 FIVE  DOLLAR  FEE.  A  BONA FIDE PURCHASER OF A LICENSED MASSAGE THERAPY
 BUSINESS MAY CONTINUE TO USE THE LICENSE OF THE SELLER FOR A  PERIOD  OF
 THIRTY DAYS FROM THE DATE OF THE SALE, PROVIDED THERE IS ENDORSED ON THE
 FACE  THEREOF  THE  NAME OF THE PURCHASER, THE DATE OF THE SALE, AND THE
 SIGNATURES OF THE SELLER AND THE PURCHASER; AND PROVIDED FURTHER  WITHIN
 FIVE  WORKING  DAYS FROM THE DATE OF THE SALE AN APPLICATION, IN ACCORD-
 ANCE WITH THE PROVISIONS OF THIS ARTICLE,  SHALL  BE  PRESENTED  BY  THE
 PURCHASER TO THE SECRETARY FOR A MASSAGE THERAPY BUSINESS LICENSE.
   4.  A MASSAGE THERAPY BUSINESS LICENSE ISSUED TO AN INDIVIDUAL OR TO A
 PARTNERSHIP MAY BE USED AFTER THE DEATH OF THE  LICENSED  INDIVIDUAL  OR

 S. 3231                             4
 
 CO-PARTNER  BY THE NEXT OF KIN OR DULY APPOINTED ADMINISTRATOR OR EXECU-
 TOR IN THE NAME OF THE ESTATE FOR A PERIOD OF NOT MORE THAN ONE  HUNDRED
 TWENTY  DAYS  FROM  THE  DATE  OF DEATH OF SUCH INDIVIDUAL OR CO-PARTNER
 PROVIDED THAT THERE IS ENDORSED UPON THE FACE OF THE LICENSE CERTIFICATE
 AFTER  THE  NAME  OF THE DECEDENT THE WORD "DECEASED", THE DATE OF DEATH
 AND THE NAME OF THE NEXT OF KIN, ADMINISTRATOR OR EXECUTOR  UNDER  WHOSE
 AUTHORITY  THE  LICENSE  IS BEING USED; THE PERIOD OF ONE HUNDRED TWENTY
 DAYS AFORESAID MAY BE EXTENDED UPON APPLICATION TO THE SECRETARY AND FOR
 GOOD CAUSE SHOWN FOR AN ADDITIONAL PERIOD  NOT  TO  EXCEED  ONE  HUNDRED
 TWENTY  DAYS.  ANY  LICENSE  SO CONTINUED WHICH SHALL EXPIRE DURING SUCH
 PERIOD OF ONE HUNDRED TWENTY  DAYS  OR  THE  EXTENSION  THEREOF  MAY  BE
 RENEWED BY THE NEXT OF KIN, ADMINISTRATOR OR EXECUTOR FOR THE BALANCE OF
 SUCH PERIOD OR THE EXTENSION THEREOF.
   5.  A  LICENSE  CERTIFICATE  ISSUED  PURSUANT TO THIS ARTICLE SHALL BE
 POSTED IN SOME CONSPICUOUS PLACE IN  THE  LICENSED  PREMISES.    AT  THE
 ENTRANCE TO EACH LICENSED PREMISES OR AT THE ENTRANCE TO ANY PLACE WHERE
 THE  PRACTICE  OF  MASSAGE  THERAPY IS CONDUCTED, A SIGN SHALL BE POSTED
 WHICH SHALL INCLUDE THE RULES AND REGULATIONS  GOVERNING  SUCH  PRACTICE
 AND  A  MANNER  IN WHICH AGGRIEVED PERSONS MAY REGISTER A COMPLAINT WITH
 THE DEPARTMENT OR EDUCATION DEPARTMENT.   THE DEPARTMENT  SHALL  PREPARE
 AND FURNISH SUCH SIGN TO EACH LICENSEE.
   6. ANY LICENSE, WHICH HAS NOT BEEN SUSPENDED OR REVOKED, MAY, UPON THE
 PAYMENT  OF  THE  RENEWAL FEE, BE RENEWED FOR ADDITIONAL PERIODS OF FOUR
 YEARS FROM ITS APPLICATION, UPON THE FILING OF AN APPLICATION  FOR  SUCH
 RENEWAL, ON A FORM TO BE PRESCRIBED BY THE SECRETARY.
   7. ANY PERSON FAILING TO FILE FOR RENEWAL OF A LICENSE PURSUANT TO THE
 PROVISIONS  OF  THIS  ARTICLE  WITHIN ONE YEAR IMMEDIATELY FOLLOWING THE
 EXPIRATION OF SUCH PERSON'S LAST LICENSE SHALL PAY AN ADDITIONAL FEE  OF
 TEN DOLLARS.
   8.  A  DUPLICATE  LICENSE  CERTIFICATE  MAY  BE  ISSUED  FOR ONE LOST,
 DESTROYED  OR  MUTILATED  UPON  THE  APPLICATION  THEREFOR  ON  A   FORM
 PRESCRIBED BY THE SECRETARY AND THE PAYMENT OF THE FEE PRESCRIBED THERE-
 FOR  BY  THIS  ARTICLE.  EACH SUCH DUPLICATE LICENSE SHALL HAVE THE WORD
 "DUPLICATE" STAMPED ACROSS THE FACE THEREOF  AND  SHALL  BEAR  THE  SAME
 NUMBER AS THE ONE IT REPLACES.
   9.  NOTICE IN WRITING SHALL BE GIVEN TO THE SECRETARY AT THE OFFICE OF
 THE SECRETARY IN ALBANY BY THE HOLDER  OF  A  MASSAGE  THERAPY  BUSINESS
 LICENSE OF ANY CHANGE OF ADDRESS. THE LICENSEE SHALL CORRECT THE ADDRESS
 ON THE LICENSE UPON THE FILING OF SUCH NOTICE.
   10.  ANY LICENSEE WHO FAILS TO FILE ANY NOTICE OF CHANGE IN THE STATUS
 OF A LICENSE REQUIRED BY THE PROVISIONS OF THIS ARTICLE SHALL BE SUBJECT
 TO THE MONETARY FINES SET FORTH IN SECTION NINE HUNDRED  EIGHT  OF  THIS
 ARTICLE.
   §  907.  FEES. 1. THE FEE FOR A MASSAGE THERAPY BUSINESS LICENSE SHALL
 BE SIXTY DOLLARS INITIALLY AND SIXTY DOLLARS FOR EACH RENEWAL THEREOF.
   2. FEES COLLECTED PURSUANT TO THIS ARTICLE SHALL BE DEPOSITED  TO  THE
 CREDIT OF THE BUSINESS AND LICENSING SERVICES ACCOUNT ESTABLISHED PURSU-
 ANT  TO  THE  PROVISIONS  OF SECTION NINETY-SEVEN-Y OF THE STATE FINANCE
 LAW.
   3. THE FEE FOR ISSUING A DUPLICATE  LICENSE  CERTIFICATE,  IN  SUBSTI-
 TUTION FOR ONE LOST, DESTROYED OR MUTILATED SHALL BE TEN DOLLARS.
   4.  THE  FEE FOR CHANGING A NAME ON A MASSAGE THERAPY BUSINESS LICENSE
 SHALL BE THIRTY DOLLARS.
   5. THE FEES SET FORTH IN THIS ARTICLE  SHALL  BE  THOSE  FOR  LICENSES
 ISSUED FOR THE LICENSE PERIOD OF FOUR YEARS.

 S. 3231                             5
 
   §  908.  ADMINISTRATION.  1.  SUSPENSION AND REVOCATION OF LICENSES OR
 REGISTRATIONS; FINES; REPRIMANDS. A  LICENSE  ISSUED  PURSUANT  TO  THIS
 ARTICLE  MAY  BE  SUSPENDED  OR  REVOKED,  OR  A FINE NOT EXCEEDING FIVE
 HUNDRED DOLLARS PAYABLE TO THE DEPARTMENT MAY BE IMPOSED FOR ANY ONE  OR
 MORE OF THE FOLLOWING CAUSES:
   A. FRAUD OR BRIBERY IN SECURING A LICENSE.
   B.  THE  MAKING  OF ANY FALSE STATEMENT AS TO A MATERIAL MATTER IN ANY
 APPLICATION OR OTHER STATEMENT OR CERTIFICATE REQUIRED BY OR PURSUANT TO
 THIS ARTICLE.
   C. INCOMPETENCE OR UNTRUSTWORTHINESS.
   D. FAILURE TO DISPLAY THE LICENSE AS PROVIDED IN THIS ARTICLE.
   E. VIOLATION OF ANY PROVISION OF THIS ARTICLE OR ARTICLE  ONE  HUNDRED
 FIFTY-FIVE  OF  THE  EDUCATION LAW, OR OF ANY RULE OR REGULATION ADOPTED
 PURSUANT THERETO.
   F. CONVICTION OF ANY OF THE FOLLOWING CRIMES SUBSEQUENT TO  THE  ISSU-
 ANCE  OF  A LICENSE PURSUANT TO THIS ARTICLE: FRAUD PURSUANT TO SECTIONS
 170.10, 170.15, 176.15, 176.20, 176.25, 176.30  AND  190.65;  FALSIFYING
 BUSINESS  RECORDS  PURSUANT TO SECTION 175.10; GRAND LARCENY PURSUANT TO
 ARTICLE 155;  BRIBERY  PURSUANT  TO  SECTIONS  180.03,  180.08,  180.15,
 180.25,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
 PERJURY PURSUANT TO SECTIONS 210.10, 210.15, 210.40; ASSAULT PURSUANT TO
 SECTIONS 120.05, 120.10, 120.11, 120.12;  ROBBERY  PURSUANT  TO  ARTICLE
 160;  HOMICIDE  PURSUANT  TO  SECTIONS  125.25  AND 125.27; MANSLAUGHTER
 PURSUANT TO SECTIONS 125.15 AND 125.20; KIDNAPPING AND  UNLAWFUL  IMPRI-
 SONMENT PURSUANT TO SECTIONS 135.10, 135.20 AND 135.25; UNLAWFUL WEAPONS
 POSSESSION  PURSUANT TO SECTIONS 265.02, 265.03 AND 265.04; CRIMINAL USE
 OF A WEAPON PURSUANT TO SECTIONS 265.08 AND 265.09; CRIMINAL SALE  OF  A
 WEAPON  PURSUANT  TO SECTIONS 265.11 AND 265.12; COMPELLING PROSTITUTION
 PURSUANT TO SECTION 230.33; SEX TRAFFICKING PURSUANT TO SECTION  230.34;
 AND  SEX  OFFENSES  PURSUANT  TO ARTICLE 130 OF THE PENAL LAW. PROVIDED,
 HOWEVER, THAT FOR THE PURPOSES OF THIS ARTICLE, NONE  OF  THE  FOLLOWING
 SHALL  BE  CONSIDERED  CRIMINAL  CONVICTIONS  OR REPORTED AS SUCH: (I) A
 CONVICTION FOR WHICH AN EXECUTIVE PARDON HAS BEEN ISSUED PURSUANT TO THE
 EXECUTIVE LAW; (II) A CONVICTION WHICH HAS BEEN VACATED AND REPLACED  BY
 A  YOUTHFUL OFFENDER FINDING PURSUANT TO ARTICLE SEVEN HUNDRED TWENTY OF
 THE CRIMINAL PROCEDURE LAW, OR THE APPLICABLE PROVISIONS OF LAW  OF  ANY
 OTHER JURISDICTION; OR (III) A CONVICTION THE RECORDS OF WHICH HAVE BEEN
 EXPUNGED  OR SEALED PURSUANT TO THE APPLICABLE PROVISIONS OF THE LAWS OF
 THIS STATE OR OF ANY OTHER JURISDICTION; AND (IV) A CONVICTION FOR WHICH
 OTHER EVIDENCE OF SUCCESSFUL REHABILITATION TO REMOVE THE DISABILITY HAS
 BEEN ISSUED.
   PROVIDED, HOWEVER, A FINE SHALL NOT BE IMPOSED FOR THE  CAUSES  SPECI-
 FIED IN PARAGRAPH F OF THIS SUBDIVISION.
   IN  LIEU  OF  OR IN CONJUNCTION WITH THE SUSPENSION OR REVOCATION OF A
 LICENSE, OR THE IMPOSITION OF A  FINE  PURSUANT  TO  THIS  SECTION,  THE
 SECRETARY  MAY ISSUE A REPRIMAND. WHEN A LICENSE ISSUED PURSUANT TO THIS
 ARTICLE IS REVOKED, SUCH LICENSE SHALL NOT  BE  REINSTATED  OR  REISSUED
 UNTIL AFTER THE EXPIRATION OF A PERIOD OF ONE YEAR FROM THE DATE OF SUCH
 REVOCATION. NO LICENSE SHALL BE ISSUED AFTER A SECOND REVOCATION.
   2.  UNLICENSED  ACTIVITIES.  A.   NOTWITHSTANDING ANY PROVISION TO THE
 CONTRARY, IF THE SECRETARY FINDS THAT  A  PERSON,  PARTNERSHIP,  LIMITED
 LIABILITY  COMPANY  OR BUSINESS CORPORATION, IS HOLDING HIMSELF, HERSELF
 OR ITSELF OUT AS OR IS ACTING AS, TEMPORARILY OR  OTHERWISE,  A  MASSAGE
 THERAPY  BUSINESS  WITHIN THIS STATE WITHOUT A VALID LICENSE, THE SECRE-
 TARY SHALL PROVIDE THE PERSON, PARTNERSHIP, LIMITED LIABILITY COMPANY OR
 BUSINESS CORPORATION WITH A WRITTEN NOTICE OF VIOLATION  AND  COMPLAINT,

 S. 3231                             6

 AND  SHALL  AFFORD  AN  OPPORTUNITY  TO BE HEARD, EITHER IN PERSON OR BY
 COUNSEL, BEFORE AN ADMINISTRATIVE LAW JUDGE NO SOONER  THAN  THREE  DAYS
 FROM DELIVERY OF SUCH NOTICE OF VIOLATION. IF DOCUMENTARY PROOF THAT THE
 DEFICIENCY  HAS BEEN CURED IS NOT PROVIDED TO THE SECRETARY AT OR BEFORE
 SUCH HEARING, FOLLOWING A HEARING DETERMINATION THAT  UNLICENSED  ACTIV-
 ITIES  HAVE OCCURRED, THE SECRETARY MAY ISSUE AN IMMEDIATE ORDER DIRECT-
 ING THE CESSATION OF ANY ACTIVITY FOR WHICH A MASSAGE THERAPY LICENSE IS
 REQUIRED.
   B. THE SECRETARY MAY ISSUE AN ORDER DIRECTING  THE  CESSATION  OF  ANY
 ACTIVITY  IF THE SECRETARY FINDS THAT A PERSON, INCLUDING A PARTNERSHIP,
 A LIMITED LIABILITY COMPANY OR BUSINESS CORPORATION, IS HOLDING HIMSELF,
 HERSELF OR ITSELF OUT AS OR IS ACTING AS, TEMPORARILY  OR  OTHERWISE,  A
 MASSAGE  THERAPY  BUSINESS  WITHIN  THE STATE WITHOUT A (I) BOND OR (II)
 LIABILITY INSURANCE OR LIABILITY COVERAGE WHICH  IS  COVERED  THROUGH  A
 BOND.  THE  SECRETARY SHALL, BEFORE MAKING SUCH DETERMINATION AND ORDER,
 AFFORD SUCH PERSON, PARTNERSHIP, LIMITED LIABILITY COMPANY  OR  BUSINESS
 CORPORATION AN OPPORTUNITY TO BE HEARD IN PERSON OR BY COUNSEL IN REFER-
 ENCE THERETO IN AN ADJUDICATORY PROCEEDING HELD PURSUANT TO SECTION NINE
 HUNDRED  NINE  OF  THIS ARTICLE. THE ENFORCEMENT OF THIS PROVISION SHALL
 REQUIRE THE DEPARTMENT OF FINANCIAL SERVICES TO CERTIFY  IN  WRITING  TO
 THE  SECRETARY THAT ANY BONDS OR LIABILITY INSURANCE THAT IS REQUIRED BY
 THE DEPARTMENT IS READILY AVAILABLE TO MASSAGE THERAPY  BUSINESSES  FROM
 THE MARKET PLACE.
   C.  THE  ATTORNEY  GENERAL,  ACTING  ON  BEHALF  OF THE SECRETARY, MAY
 COMMENCE AN ACTION OR PROCEEDING IN A COURT OF COMPETENT JURISDICTION TO
 OBTAIN A JUDGMENT AGAINST SUCH PERSON,  PARTNERSHIP,  LIMITED  LIABILITY
 COMPANY OR BUSINESS CORPORATION IN AN AMOUNT EQUAL TO THAT ASSESSED AS A
 CIVIL  PENALTY.  SAID  JUDGMENT  SHALL  THEREAFTER BE ENFORCEABLE BY ANY
 MEANS AUTHORIZED BY THE CIVIL PRACTICE LAW AND RULES.
   D. WHERE A MASSAGE THERAPY  BUSINESS  OPERATOR  CONTINUES  TO  OPERATE
 WITHOUT  A  LICENSE  FOLLOWING THE ISSUANCE OF AN ORDER BY THE SECRETARY
 DIRECTING CESSATION, THE ATTORNEY  GENERAL,  ACTING  ON  BEHALF  OF  THE
 SECRETARY,  MAY COMMENCE AN ACTION OR PROCEEDING IN A COURT OF COMPETENT
 JURISDICTION AGAINST SUCH OPERATOR TO OBTAIN AN ORDER ENJOINING  FURTHER
 OPERATION  OF  SUCH  BUSINESS.  A MASSAGE THERAPY BUSINESS THAT HAS BEEN
 ORDERED TO CEASE OPERATION SHALL NOT RE-OPEN WITHOUT FIRST  OBTAINING  A
 LICENSE AS REQUIRED BY THIS ARTICLE AND PAYING ANY ASSESSED FINES.
   §  909.  DENIAL  OF  LICENSE;  COMPLAINTS; NOTICE OF HEARING. 1.   THE
 DEPARTMENT SHALL, BEFORE MAKING A FINAL DETERMINATION TO DENY AN  APPLI-
 CATION FOR A LICENSE, NOTIFY THE APPLICANT IN WRITING OF THE REASONS FOR
 SUCH PROPOSED DENIAL AND SHALL AFFORD THE APPLICANT AN OPPORTUNITY TO BE
 HEARD  IN  PERSON OR BY COUNSEL PRIOR TO DENIAL OF THE APPLICATION. SUCH
 NOTIFICATION SHALL BE SERVED PERSONALLY OR BY CERTIFIED MAIL OR  IN  ANY
 MANNER  AUTHORIZED  BY THE CIVIL PRACTICE LAW AND RULES FOR SERVICE OF A
 SUMMONS. IF A HEARING IS REQUESTED, SUCH HEARING SHALL BE HELD  AT  SUCH
 TIME AND PLACE AS THE DEPARTMENT SHALL PRESCRIBE. IF THE APPLICANT FAILS
 TO MAKE A WRITTEN REQUEST FOR A HEARING WITHIN THIRTY DAYS AFTER RECEIPT
 OF  SUCH  NOTIFICATION, THEN THE NOTIFICATION OF DENIAL SHALL BECOME THE
 FINAL DETERMINATION OF THE DEPARTMENT. THE DEPARTMENT,  ACTING  BY  SUCH
 OFFICER  OR  PERSON  IN  THE  DEPARTMENT AS THE SECRETARY MAY DESIGNATE,
 SHALL HAVE THE POWER TO SUBPOENA AND BRING BEFORE THE OFFICER OR  PERSON
 SO  DESIGNATED  ANY  PERSON IN THIS STATE, AND ADMINISTER AN OATH TO AND
 TAKE TESTIMONY OF ANY PERSON OR CAUSE HIS OR HER DEPOSITION TO BE TAKEN.
 A SUBPOENA ISSUED UNDER THIS SECTION SHALL BE  REGULATED  BY  THE  CIVIL
 PRACTICE  LAW  AND  RULES.  IF,  AFTER  SUCH HEARING, THE APPLICATION IS
 DENIED, WRITTEN NOTICE OF SUCH DENIAL SHALL BE SERVED UPON THE APPLICANT

 S. 3231                             7
 
 PERSONALLY OR BY CERTIFIED MAIL OR IN ANY MANNER AUTHORIZED BY THE CIVIL
 PRACTICE LAW AND RULES FOR THE SERVICE OF A SUMMONS.
   2.  THE DEPARTMENT SHALL, BEFORE REVOKING OR SUSPENDING ANY LICENSE OR
 IMPOSING ANY FINE OR REPRIMAND ON THE HOLDER THEREOF, OR BEFORE  ISSUING
 ANY ORDER DIRECTING THE CESSATION OF UNLICENSED ACTIVITIES, AND AT LEAST
 TEN  DAYS  PRIOR  TO THE DATE SET FOR THE HEARING, NOTIFY IN WRITING THE
 HOLDER OF SUCH LICENSE, OR THE PERSON ALLEGED TO HAVE ENGAGED  IN  UNLI-
 CENSED  ACTIVITIES,  OF ANY CHARGES MADE AND SHALL AFFORD SUCH PERSON AN
 OPPORTUNITY TO BE HEARD IN PERSON OR BY COUNSEL  IN  REFERENCE  THERETO.
 SUCH  WRITTEN NOTICE MAY BE SERVED BY DELIVERY OF SAME PERSONALLY TO THE
 LICENSEE OR PERSON CHARGED, OR BY MAILING SAME BY CERTIFIED MAIL TO  THE
 LAST  KNOWN  BUSINESS  OR  OTHER  ADDRESS PROVIDED BY SUCH PERSON TO THE
 SECRETARY, OR BY ANY METHOD AUTHORIZED BY THE  CIVIL  PRACTICE  LAW  AND
 RULES FOR THE SERVICE OF A SUMMONS. THE HEARING ON SUCH CHARGES SHALL BE
 AT SUCH TIME AND PLACE AS THE DEPARTMENT SHALL PRESCRIBE.
   3.  THE DEPARTMENT, ACTING BY SUCH OFFICER OR PERSON IN THE DEPARTMENT
 AS THE SECRETARY MAY DESIGNATE, SHALL HAVE THE  POWER  TO  SUBPOENA  AND
 BRING  BEFORE  THE  OFFICER  OR  PERSON SO DESIGNATED ANY PERSON IN THIS
 STATE, AND ADMINISTER AN OATH TO AND TAKE TESTIMONY  OF  ANY  PERSON  OR
 CAUSE  HIS  DEPOSITION TO BE TAKEN. A SUBPOENA ISSUED UNDER THIS SECTION
 SHALL BE REGULATED BY THE CIVIL PRACTICE LAW AND RULES.
   § 910. PENALTIES. 1.  THE FOLLOWING VIOLATIONS SHALL BE  DEEMED  SEPA-
 RATE OFFENSES AND BE DEEMED A MISDEMEANOR, AND UPON CONVICTION, SHALL BE
 PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR BY A FINE OF
 UP  TO TWO THOUSAND FIVE HUNDRED DOLLARS OR BY BOTH SUCH FINE AND IMPRI-
 SONMENT:
   (A) THE OPERATION OF A MASSAGE THERAPY BUSINESS WITHOUT A  LICENSE  OR
 WHEN SUCH LICENSE HAS BEEN SUSPENDED OR REVOKED; OR
   (B)  THE  OPERATION  OF  A MASSAGE THERAPY BUSINESS IN VIOLATION OF AN
 ORDER DIRECTING THE CESSATION  OF  UNLICENSED  ACTIVITY  ISSUED  BY  THE
 SECRETARY PURSUANT TO SECTION NINE HUNDRED EIGHT OF THIS ARTICLE.
   2.  THE  OPERATION OF A MASSAGE THERAPY BUSINESS WITHOUT A (A) BOND OR
 (B) LIABILITY INSURANCE OR LIABILITY COVERAGE WHICH IS COVERED THROUGH A
 BOND SHALL BE PUNISHABLE BY A CIVIL PENALTY OF UP TO TWO  THOUSAND  FIVE
 HUNDRED  DOLLARS.  THE  ENFORCEMENT  OF THIS PROVISION SHALL REQUIRE THE
 DEPARTMENT OF FINANCIAL SERVICES TO CERTIFY IN WRITING TO THE  SECRETARY
 THAT ANY BONDS OR LIABILITY INSURANCE THAT IS REQUIRED BY THE DEPARTMENT
 IS  READILY  AVAILABLE  TO  MASSAGE  THERAPY  BUSINESSES FROM THE MARKET
 PLACE.
   § 911. JUDICIAL REVIEW. THE ACTION OF  THE  SECRETARY  IN  SUSPENDING,
 REVOKING  OR  REFUSING  TO ISSUE OR RENEW A LICENSE, OR ISSUING AN ORDER
 DIRECTING THE CESSATION OF UNLICENSED ACTIVITY OR  IMPOSING  A  FINE  OR
 REPRIMAND  MAY BE APPEALED BY A PROCEEDING BROUGHT UNDER AND PURSUANT TO
 ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
   § 912. OFFICIAL ACTS USED AS EVIDENCE. THE OFFICIAL ACTS OF THE SECRE-
 TARY AND THE DEPARTMENT SHALL BE PRIMA FACIE EVIDENCE OF THE FACTS THER-
 EIN AND SHALL BE ENTITLED TO BE RECEIVED AS EVIDENCE ON ALL  ACTIONS  AT
 LAW  AND  OTHER LEGAL PROCEEDINGS IN ANY COURT OR BEFORE ANY BOARD, BODY
 OR OFFICER.
   § 913. DISPOSITION OF MONEYS. ALL MONEYS DERIVED FROM THE OPERATION OF
 THIS ARTICLE SHALL BE DEPOSITED  TO  THE  CREDIT  OF  THE  BUSINESS  AND
 LICENSING  SERVICES  ACCOUNT ESTABLISHED PURSUANT TO SECTION NINETY-SEV-
 EN-Y OF THE STATE FINANCE LAW.
   § 914. APPLICATION OF ARTICLE. 1. THIS ARTICLE SHALL NOT APPLY  TO  OR
 AFFECT  THE  OPERATION  OF ANY BUSINESS AT WHICH THE PRACTICE OF MASSAGE

 S. 3231                             8
 
 THERAPY IS CONDUCTED BY AN EXEMPT PERSON AS DEFINED IN SECTION  SEVENTY-
 EIGHT HUNDRED FIVE OF THE EDUCATION LAW.
   2.  THIS  ARTICLE  SHALL NOT APPLY TO, AFFECT OR PREVENT HOME ADMINIS-
 TRATION, WITHOUT COMPENSATION OR OTHER CONSIDERATION, OF MASSAGE  THERA-
 PY.
   §  915.  SEPARABILITY CLAUSE. IF ANY PART OR PROVISION OF THIS ARTICLE
 OR THE APPLICATION THEREOF TO ANY PERSON  OR  CIRCUMSTANCE  BE  ADJUDGED
 INVALID  BY  ANY COURT OF COMPETENT JURISDICTION, SUCH JUDGMENT SHALL BE
 CONFINED IN ITS OPERATION TO THE PART, PROVISION OR APPLICATION DIRECTLY
 INVOLVED IN THE CONTROVERSY IN  WHICH  SUCH  JUDGMENT  SHALL  HAVE  BEEN
 RENDERED AND SHALL NOT AFFECT OR IMPAIR THE VALIDITY OF THE REMAINDER OF
 THIS  ARTICLE  OR  APPLICATION THEREOF TO OTHER PERSONS OR CIRCUMSTANCES
 AND THE LEGISLATURE HEREBY DECLARES THAT  IT  WOULD  HAVE  ENACTED  THIS
 ARTICLE OR THE REMAINDER THEREOF HAD THE INVALIDITY OF SUCH PROVISION OR
 APPLICATION THEREOF BEEN APPARENT.
   § 2. The education law is amended by adding a new section 7808 to read
 as follows:
   § 7808. COOPERATION WITH THE DEPARTMENT OF STATE. THE DEPARTMENT SHALL
 COOPERATE WITH AND PROVIDE ASSISTANCE TO THE DEPARTMENT OF STATE FOR THE
 PURPOSES  OF IMPLEMENTING ARTICLE FORTY OF THE GENERAL BUSINESS LAW, AND
 SHALL ACCEPT AND RECEIVE COMPLAINTS FROM THE DEPARTMENT OF STATE  RELAT-
 ING TO THE PRACTICE OF MASSAGE THERAPY.
   §  3. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a law. Effective immediately,
 the addition, amendment and/or repeal of any rule or  regulation  neces-
 sary  for  the  implementation  of  this  act  on its effective date are
 authorized to be made and completed on or before such effective date.