N.Y. General Business Law § 899-bbb: Document destruction contractors

§ 899-bbb. Document destruction contractors. 1. On or after October

first, two thousand eight, no person, firm or corporation shall hold

himself, herself or itself out to be a document destruction contractor

in New York state without first registering with the department as

provided in this section.

2. Any person, firm or corporation seeking a certificate of

registration as a document destruction contractor shall file with the

department an application for registration in such form and detail as

the department shall prescribe, including the following:

(a) the name and residence address of the applicant;

(b) the business name, if other than applicant;

(c) the place, including the city, town or village, with the street

and number, where the business is to be located;

(d) the business telephone of the applicant;

(e) the length of time that the applicant has been a document

destruction contractor;

(f) a statement indicating whether the applicant has:

(i) been convicted of any crime or is a debtor on any unpaid civil

judgment relating to work as a document destruction contractor; and

(ii) at any time in the past been issued a registration pursuant to

this section, and if so, whether such registration was ever revoked or

suspended;

(g) satisfactory evidence of good moral character;

(h) a statement indicating the methods of document destruction

utilized by the applicant;

(i) a sworn statement by the applicant that the information set forth

in the application is current and accurate; and

(j) a complete set of two fingerprint cards for each principal and

officer of the applicant on a standard fingerprint card approved by the

division of criminal justice services. Such cards shall be retained by

the department and used solely for the purpose of conducting an

investigation pursuant to subdivision twelve of this section. If

additional copies of fingerprints are required the applicant shall

furnish them upon request.

3. In determining whether to issue or renew a registration, the

secretary of state may consider the character, competency and integrity

of the applicant.

4. The secretary of state may refuse to issue a registration to any

person, firm or corporation whom he or she finds has been convicted of

any crime, or failed to pay any final civil judgment, relating to work

as a document destruction contractor, if such refusal will, in the

judgment of the secretary of state, best promote the interests of the

people of this state.

5. (a) A registration issued or renewed under the provisions of this

section shall entitle a person to act as a registered document

destruction contractor in the state of New York for a period of two

years from the effective date of the registration. Any registration

granted under this section may be renewed by the department upon

application and payment of the fee for such renewal by the holder

thereof, in such form as the department may prescribe.

(b) The secretary of state shall have the authority to assign

staggered expiration dates for registrations at the time of renewal. If

the assigned date results in a term that exceeds twenty-four months, the

applicant shall pay an additional pro-rated adjustment together with the

regular renewal fee.

(c) The secretary of state shall issue each document destruction

contractor a unique registration number.

6. (a) Each original application or application for renewal for

registration as a document destruction contractor shall be accompanied

by a fee of fifty dollars for each biennial registration period.

(b) Notice in writing in the manner and form prescribed by the

department shall be given to the department at its offices in Albany

within ten days of changes of name or address by registered document

destruction contractors. The fee for filing each change of name or

address notice shall be ten dollars.

(c) In the case of loss, destruction or damage, the department may,

upon submission of a request in such form and manner as the department

may prescribe, issue a duplicate registration upon payment of a fee of

ten dollars.

7. The fees established by this section shall not be refundable.

8. Each document destruction contractor engaged in making document

destruction contracts shall exhibit his or her certificate upon the

request of any interested party.

9. Every document destruction contract subject to the provisions of

this article, and all amendments thereto, shall be evidenced by a

writing and shall be signed by all the parties to the contract. The

writing shall contain the contractor's registration number issued by the

secretary of state pursuant to this article.

10. No person, firm or corporation shall:

(a) present, or attempt to present, as his, her or its own, the

registration of another;

(b) knowingly give false evidence of a material nature to the

department for the purpose of procuring a registration;

(c) falsely represent themselves to be a registered document

destruction contractor;

(d) use or attempt to use a registration which has expired;

(e) offer to perform or perform any document destruction without

having a current registration as is required under this section; or

(f) represent in any manner that his, her or its registration

constitutes an endorsement of the quality of workmanship or competency

of the contractor.

11. Registrations issued to document destruction contractors shall not

be transferable or assignable.

12. (a) The secretary of state shall promulgate such rules and

regulations as are deemed necessary to effectuate the purposes of this

article, and shall provide written notification of the provisions of

this article to all document destruction contractors registered pursuant

to this article.

(b) The secretary of state shall have the power to enforce the

provisions of this article and upon complaint of any person, or upon the

secretary's initiative, to investigate any violation thereof or to

investigate the business, business practices and business methods of any

person, firm, limited liability company, partnership or corporation

applying for or holding a registration as a document destruction

contractor, if in the opinion of the secretary of state such

investigation is warranted. Each such applicant or registrant shall be

obliged, on request of the secretary of state, to supply such

information, books, papers or records as may be required concerning his,

her or its business, business practices or business methods, or proposed

business practices or methods. Failure to comply with a lawful request

of the secretary shall be a ground for denying an application for a

registration, or for revoking, suspending, or failing to renew a

registration issued under this article.

(c) The department shall have the power to revoke or suspend any

registration, or in lieu thereof to impose a fine not exceeding one

thousand dollars payable to the department, or reprimand any registrant

or deny an application for a registration or renewal thereof upon proof:

(i) that the applicant or registrant has violated any of the

provisions of this article or the rules and regulations promulgated

pursuant to this article;

(ii) that the applicant or registrant has practiced fraud, deceit or

misrepresentation;

(iii) that the applicant or registrant has made a material

misstatement in the application for or renewal of his or her

registration;

(iv) that the applicant or registrant has demonstrated incompetence or

untrustworthiness in his or her actions.

13. The department shall, before denying an application for a

registration or before revoking or suspending any registration, or

imposing any fine or reprimand, and at least fifteen days prior to the

date set for the hearing, and upon due notice to the complainant or

objector, notify in writing the applicant for, or the holder of such

registration of any charge made and shall afford such applicant or

registrant 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 applicant or registrant, or by mailing same by

registered mail to the last known business address of such applicant or

registrant.

14. The hearing on such charges shall be at such time and place as the

department shall prescribe and shall be conducted by such officer or

person in the department as the secretary of state may designate, who

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. Such officer or person in the department

designated to take such testimony shall not be bound by common law or

statutory rules of evidence or by technical or formal rules of

procedure.

15. In the event that the department shall deny the application for,

or revoke or suspend any such registration, or impose any fine or

reprimand, its determination shall be in writing and officially signed.

The original of such determinations, when so signed, shall be filed in

the office of the department and copies thereof shall be mailed to the

applicant or registrant and to the complainant within two days after

such filing.

16. The department, acting by the office or person designated to

conduct the hearing pursuant to subdivision fourteen of this section or

by such other officer or person in the department as the secretary of

state may designate, shall have the power to suspend the registration of

any registrant who has been convicted in this state or any other state

or territory of a felony or of any misdemeanor for a period not

exceeding thirty days pending a hearing and a determination of charges

made against him or her. If such hearing is adjourned at the request of

the registrant, or by reason of any act or omission by him or her or on

his or her behalf, such suspension may be continued for the additional

period of such adjournment.

17. The action of the department in granting or refusing to grant or

to renew a registration under this article or in revoking or suspending

or refusing to revoke or suspend such a registration or imposing any

fine or reprimand shall be subject to review by a proceeding instituted

under article seventy-eight of the civil practice law and rules at the

instance of the applicant for such registration, the holder of a

registration so revoked, suspended, fined or reprimanded or the person

aggrieved.

18. The department shall maintain and publish a registry of all

registered document destruction contractors, which shall list and

identify on a county by county basis, all registered document

destruction contractors doing business in this state. The department

shall make the registry available on its website. Copies of the roster

shall be made available upon request and payment of a fee to be

determined by the secretary of state and approved by the director of the

division of the budget.

19. (a) Any person, firm or corporation that operates as a document

destruction contractor without being registered shall be required to pay

a civil penalty in the sum of one thousand dollars per document

destruction contract entered into in violation of this section. However,

any such person, firm or corporation against whom such penalty has been

assessed may avoid all but five hundred dollars of such penalty by

obtaining a registration as required by this section, provided that

application for such registration is made not more than ten days after

the imposition of such penalty and the document destruction contractor

has never received a prior fine for failure to register in New York or

in any other state that requires registration.

(b) A document destruction contractor may not maintain a civil action

to recover payment for work under a document destruction contract

performed if such contractor is not registered as required under this

section.

20. Whenever there shall be a violation of this section, an

application may be made by the attorney general in the name of the

people of the state of New York to a court or justice having

jurisdiction by a special proceeding to issue an injunction, and upon

notice to the defendant of not less than five days, to enjoin or

restrain the continuance of such violation; and if it shall appear to

the satisfaction of the court or justice that the defendant has, in

fact, violated this section, an injunction may be issued by such court

or justice, enjoining and restraining any further violation, without

requiring proof that any person has, in fact, been injured or damaged

thereby. In any such proceeding, the court may make allowances to the

attorney general as provided in paragraph six of subdivision (a) of

section eighty-three hundred three of the civil practice law and rules,

and direct restitution. In connection with any such proposed

application, the attorney general is authorized to take proof and make a

determination of the relevant facts and to issue subpoenas in accordance

with the civil practice law and rules.