S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6159
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               April 3, 2023
                                ___________
 
 Introduced by M. of A. McDONALD -- read once and referred to the Commit-
   tee on Governmental Operations
 
 AN  ACT  to  amend  the executive law, in relation to certification of a
   business enterprise as a minority or women-owned business enterprise
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision   7   of  section 310 of the executive law, as
 amended by chapter 22 of the laws of 2014, paragraph (e) as  amended  by
 chapter 96 of the laws of 2019, is amended to read as follows:
   7.  "Minority-owned  business enterprise" shall mean a business enter-
 prise, including a sole proprietorship, partnership,  limited  liability
 company or corporation that is:
   (a)  at  least  fifty-one  percent owned by one or more minority group
 members;
   (b) an enterprise in which such minority ownership is  real,  substan-
 tial  and  continuing, IN ACCORDANCE WITH CLEAR STANDARDS WHICH SHALL BE
 DEVELOPED BY THE DIRECTOR FOR THE PURPOSES OF COMPLIANCE WITH THIS PARA-
 GRAPH, AND SUBJECT TO THE FOLLOWING:
   (I) AN INHERITED OWNERSHIP  STAKE  IN  THE  ENTERPRISE  SHALL  NOT  BE
 GROUNDS  FOR  PROHIBITION  FROM  CERTIFICATION  OF  SUCH ENTERPRISE AS A
 MINORITY-OWNED BUSINESS ENTERPRISE; AND
   (II) AN ENTERPRISE SHALL BE PERMITTED TO DEMONSTRATE PROOF  OF  OWNER-
 SHIP  QUALIFYING SUCH ENTERPRISE AS A MINORITY-OWNED BUSINESS ENTERPRISE
 THROUGH TAX RECORDS, DEEDS, CERTIFIED BUSINESS  RECORDS,  OR  ANY  OTHER
 EVIDENCE ACCEPTED BY STATE AND FEDERAL AGENCIES;
   (c)  an  enterprise in which such minority ownership has and exercises
 the authority to control independently the day-to-day business decisions
 of the enterprise, EXCEPT THAT  SUCH  MINORITY  OWNERSHIP  MAY  DELEGATE
 DAY-TO-DAY  BUSINESS  DECISION-MAKING  AUTHORITY  TO DESIGNATED MANAGERS
 WITHIN THE ENTERPRISE SO  LONG  AS  THE  MINORITY  OWNERSHIP  HOLDS  THE
 AUTHORITY  TO  MANAGE,  SUPERVISE, HIRE AND FIRE SUCH MANAGERS AND ULTI-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10462-01-3
              

 A. 6159                             2
 
 MATELY CONTROLS THE LONG-TERM DECISION-MAKING AUTHORITY FOR  THE  ENTER-
 PRISE;
   (d)  an  enterprise  authorized to do business in this state and inde-
 pendently owned and operated;
   (e) an enterprise owned by an individual or individuals, whose  owner-
 ship,  control  and  operation are relied upon for certification, with a
 personal net worth that does not exceed  fifteen  million  dollars,  and
 such  other  amount  as  the director shall set forth in regulations, as
 adjusted annually on the first of January for inflation according to the
 consumer price index of the previous year; and
   (f) an enterprise that is a small  business  pursuant  to  subdivision
 twenty of this section.
   § 2. Subdivision 15 of section 310 of the executive law, as amended by
 chapter  22 of the laws of 2014, paragraph (a) as amended by chapter 669
 of the laws of 2022 and paragraph (e) as amended by chapter  96  of  the
 laws of 2019, is amended to read as follows:
   15.  "Women-owned  business  enterprise"  shall mean a business enter-
 prise, including a sole proprietorship, partnership,  limited  liability
 company or corporation that is:
   (a)  at  least  fifty-one  percent  owned by one or more United States
 citizens or permanent resident noncitizens who are women;
   (b) an enterprise in which the ownership interest  of  such  women  is
 real,  substantial  and  continuing,  IN ACCORDANCE WITH CLEAR STANDARDS
 WHICH SHALL BE DEVELOPED BY THE DIRECTOR FOR THE PURPOSES OF  COMPLIANCE
 WITH THIS PARAGRAPH, AND SUBJECT TO THE FOLLOWING:
   (I) AN INHERITED OWNERSHIP STAKE IN AN ENTERPRISE SHALL NOT BE GROUNDS
 FOR  PROHIBITION  FROM CERTIFICATION OF SUCH ENTERPRISE AS A WOMEN-OWNED
 BUSINESS ENTERPRISE; AND
   (II) AN ENTERPRISE SHALL BE PERMITTED TO DEMONSTRATE PROOF  OF  OWNER-
 SHIP  QUALIFYING  SUCH  ENTERPRISE  AS A WOMEN-OWNED BUSINESS ENTERPRISE
 THROUGH TAX RECORDS, DEEDS, CERTIFIED BUSINESS  RECORDS,  OR  ANY  OTHER
 EVIDENCE ACCEPTED BY STATE AND FEDERAL AGENCIES;
   (c)  an enterprise in which such women ownership has and exercises the
 authority to control independently the day-to-day business decisions  of
 the enterprise, EXCEPT THAT SUCH WOMEN OWNERSHIP MAY DELEGATE DAY-TO-DAY
 BUSINESS  DECISION-MAKING  AUTHORITY  TO  DESIGNATED MANAGERS WITHIN THE
 ENTERPRISE SO LONG AS THE WOMEN OWNERSHIP HOLDS THE AUTHORITY TO MANAGE,
 SUPERVISE, HIRE AND FIRE SUCH MANAGERS AND ULTIMATELY CONTROLS THE LONG-
 TERM DECISION-MAKING AUTHORITY FOR THE ENTERPRISE;
   (d) an enterprise authorized to do business in this  state  and  inde-
 pendently owned and operated;
   (e)  an enterprise owned by an individual or individuals, whose owner-
 ship, control and operation are relied upon for  certification,  with  a
 personal  net  worth  that  does not exceed fifteen million dollars, and
 such other amount as the director shall set  forth  in  regulations,  as
 adjusted annually on the first of January for inflation according to the
 consumer price index of the previous year; and
   (f)  an  enterprise  that  is a small business pursuant to subdivision
 twenty of this section.
   A firm owned by a minority group member who is also  a  woman  may  be
 certified  as  a minority-owned business enterprise, a women-owned busi-
 ness enterprise, or both, and may be counted towards either a  minority-
 owned  business  enterprise  goal  or  a women-owned business enterprise
 goal, in regard to any contract or any goal, set by an agency or author-
 ity, but such participation may not be counted towards both such  goals.
 Such  an  enterprise's  participation  in  a contract may not be divided
 A. 6159                             3
 
 between the minority-owned business enterprise goal and the  women-owned
 business enterprise goal.
   § 3. Subparagraph (iii) of paragraph (a) of subdivision 2-a of section
 314  of the executive law, as amended by chapter 96 of the laws of 2019,
 is amended to read as follows:
   (iii) be an enterprise in which the  minority  and/or  women-ownership
 has  and exercises the authority to control independently the day-to-day
 business decisions of the enterprise, EXCEPT THAT SUCH  MINORITY  AND/OR
 WOMEN OWNERSHIP MAY DELEGATE DAY-TO-DAY BUSINESS DECISION-MAKING AUTHOR-
 ITY TO DESIGNATED MANAGERS WITHIN THE ENTERPRISE SO LONG AS THE MINORITY
 AND/OR  WOMEN  OWNERSHIP  HOLDS THE AUTHORITY TO MANAGE, SUPERVISE, HIRE
 AND FIRE SUCH MANAGERS AND ULTIMATELY CONTROLS THE  LONG-TERM  DECISION-
 MAKING AUTHORITY FOR THE ENTERPRISE;
   §  4. Subdivision 3 of section 314 of the executive law, as amended by
 chapter 96 of the laws of 2019, is amended to read as follows:
   3. Following application for certification pursuant to  this  section,
 the  director  shall  provide  the  applicant with written notice of the
 status of the application, including notice of any outstanding deficien-
 cies, within twenty-one days. Within forty-five days of submission of  a
 final  completed  application,  [the]  SUCH  APPLICANT  SHALL BE GRANTED
 CERTIFICATION AS A MINORITY OR WOMEN-OWNED  BUSINESS  ENTERPRISE  UNLESS
 THE DIRECTOR SEEKS TO DENY SUCH APPLICATION BASED UPON THE PREPONDERANCE
 OF  THE  EVIDENCE  PROVIDED  OR OBTAINED THROUGH THE INITIAL APPLICATION
 PROCESS. THE DIRECTOR SHALL MAKE ALL SUCH EVIDENCE AVAILABLE IN  WRITING
 SETTING  FORTH  THE  REASONS FOR SUCH DENIAL TO THE APPLICANT FOR REVIEW
 AND COMMENT.  SUCH APPLICANT SHALL BE ELIGIBLE FOR  A  PROVISIONAL  MWBE
 CERTIFICATION  FOR  A PERIOD OF SIX MONTHS.  DURING THE PROVISIONAL MWBE
 CERTIFICATION TIME PERIOD, SUCH APPLICANT SHALL HAVE THE ABILITY TO CURE
 ANY DEFICIENCIES AS NOTED BY THE DIRECTOR IN THE  ORIGINAL  APPLICATION.
 AFTER  THE  PROVISIONAL  MWBE  CERTIFICATION  PERIOD, THE DIRECTOR SHALL
 GRANT FULL MINORITY OR  WOMEN-OWNED  BUSINESS  ENTERPRISE  CERTIFICATION
 UNLESS  A PREPONDERANCE OF THE EVIDENCE PROVIDED OR OBTAINED THROUGH THE
 APPLICATION PROCESS AND PROVISIONAL  MWBE  CERTIFICATION  PROCESS  SHOWS
 CAUSE NOT TO GRANT SUCH STATUS. THE director shall provide the applicant
 with  written notice of a determination by the office approving or deny-
 ing such certification [and, in the event of a]. ANY DENIAL OF AN APPLI-
 CATION SHALL BE BASED UPON THE PREPONDERANCE OF THE EVIDENCE PROVIDED OR
 OBTAINED THROUGH THE APPLICATION PROCESS AND SUCH denial SHALL INCLUDE a
 statement setting forth the reasons for such  denial.  Upon  a  determi-
 nation  denying  or  revoking certification, the business enterprise for
 which certification has been so denied or revoked  shall,  upon  written
 request  made within thirty days from receipt of notice of such determi-
 nation, be entitled to a hearing before an independent  hearing  officer
 designated  for  such purpose by the director. THE STANDARD OF REVIEW BY
 ANY HEARING OFFICER IN RELATION TO A WRITTEN REQUEST  MADE  PURSUANT  TO
 THIS SECTION SHALL BE A PREPONDERANCE OF THE EVIDENCE. In the event that
 a  request for a hearing is not made within such thirty day period, such
 determination shall be deemed to be final. The independent hearing offi-
 cer shall conduct a hearing [and upon] WITHIN SIXTY DAYS FROM RECEIPT OF
 SUCH WRITTEN REQUEST FOR A HEARING AND NO LATER THAN  SIXTY  DAYS  AFTER
 the  conclusion of such hearing, SHALL issue a written recommendation to
 the director to affirm, reverse or  modify  such  determination  of  the
 director  AND  SHALL SIMULTANEOUSLY PROVIDE A COPY OF THE WRITTEN RECOM-
 MENDATION TO THE MINORITY OR WOMEN-OWNED BUSINESS ENTERPRISE. Such writ-
 ten recommendation shall be issued to the parties. The director,  within
 thirty days, by order, must accept, reject or modify such recommendation
 A. 6159                             4
 
 of  the  hearing  officer and set forth in writing the reasons therefor.
 The director shall serve a copy of such order and reasons therefor  upon
 the  business enterprise by personal service or by certified mail return
 receipt  requested. The order of the director shall be subject to review
 pursuant to article seventy-eight of the civil practice law and rules.
   § 5. This act shall take effect immediately, provided,  however,  that
 the  amendments  to  sections  310  and 314 of the executive law made by
 sections one, two, three and four of  this  act  shall  not  affect  the
 repeal of such sections and shall be deemed repealed therewith.