§ 899-BBB — Document destruction contractors

§ 899-bbb. Document destruction contractors. 1. On or after October\nfirst, two thousand eight, no person, firm or corporation shall hold\nhimself, herself or itself out to be a document destruction contractor\nin New York state without first registering with the department as\nprovided in this section.\n 2. Any person, firm or corporation seeking a certificate of\nregistration as a document destruction contractor shall file with the\ndepartment an application for registration in such form and detail as\nthe department shall prescribe, including the following:\n (a) the name and residence address of the applicant;\n (b) the business name, if other than applicant;\n (c) the place, including the city, town or village, with the street\nand number, where the business is to be located;\n (d) the business telephone of the applicant;\n (e) the length of time that the applicant has been a document\ndestruction contractor;\n (f) a statement indicating whether the applicant has:\n (i) been convicted of any crime or is a debtor on any unpaid civil\njudgment relating to work as a document destruction contractor; and\n (ii) at any time in the past been issued a registration pursuant to\nthis section, and if so, whether such registration was ever revoked or\nsuspended;\n (g) satisfactory evidence of good moral character;\n (h) a statement indicating the methods of document destruction\nutilized by the applicant;\n (i) a sworn statement by the applicant that the information set forth\nin the application is current and accurate; and\n (j) a complete set of two fingerprint cards for each principal and\nofficer of the applicant on a standard fingerprint card approved by the\ndivision of criminal justice services. Such cards shall be retained by\nthe department and used solely for the purpose of conducting an\ninvestigation pursuant to subdivision twelve of this section. If\nadditional copies of fingerprints are required the applicant shall\nfurnish them upon request.\n 3. In determining whether to issue or renew a registration, the\nsecretary of state may consider the character, competency and integrity\nof the applicant.\n 4. The secretary of state may refuse to issue a registration to any\nperson, firm or corporation whom he or she finds has been convicted of\nany crime, or failed to pay any final civil judgment, relating to work\nas a document destruction contractor, if such refusal will, in the\njudgment of the secretary of state, best promote the interests of the\npeople of this state.\n 5. (a) A registration issued or renewed under the provisions of this\nsection shall entitle a person to act as a registered document\ndestruction contractor in the state of New York for a period of two\nyears from the effective date of the registration. Any registration\ngranted under this section may be renewed by the department upon\napplication and payment of the fee for such renewal by the holder\nthereof, in such form as the department may prescribe.\n (b) The secretary of state shall have the authority to assign\nstaggered expiration dates for registrations at the time of renewal. If\nthe assigned date results in a term that exceeds twenty-four months, the\napplicant shall pay an additional pro-rated adjustment together with the\nregular renewal fee.\n (c) The secretary of state shall issue each document destruction\ncontractor a unique registration number.\n 6. (a) Each original application or application for renewal for\nregistration as a document destruction contractor shall be accompanied\nby a fee of fifty dollars for each biennial registration period.\n (b) Notice in writing in the manner and form prescribed by the\ndepartment shall be given to the department at its offices in Albany\nwithin ten days of changes of name or address by registered document\ndestruction contractors. The fee for filing each change of name or\naddress notice shall be ten dollars.\n (c) In the case of loss, destruction or damage, the department may,\nupon submission of a request in such form and manner as the department\nmay prescribe, issue a duplicate registration upon payment of a fee of\nten dollars.\n 7. The fees established by this section shall not be refundable.\n 8. Each document destruction contractor engaged in making document\ndestruction contracts shall exhibit his or her certificate upon the\nrequest of any interested party.\n 9. Every document destruction contract subject to the provisions of\nthis article, and all amendments thereto, shall be evidenced by a\nwriting and shall be signed by all the parties to the contract. The\nwriting shall contain the contractor's registration number issued by the\nsecretary of state pursuant to this article.\n 10. No person, firm or corporation shall:\n (a) present, or attempt to present, as his, her or its own, the\nregistration of another;\n (b) knowingly give false evidence of a material nature to the\ndepartment for the purpose of procuring a registration;\n (c) falsely represent themselves to be a registered document\ndestruction contractor;\n (d) use or attempt to use a registration which has expired;\n (e) offer to perform or perform any document destruction without\nhaving a current registration as is required under this section; or\n (f) represent in any manner that his, her or its registration\nconstitutes an endorsement of the quality of workmanship or competency\nof the contractor.\n 11. Registrations issued to document destruction contractors shall not\nbe transferable or assignable.\n 12. (a) The secretary of state shall promulgate such rules and\nregulations as are deemed necessary to effectuate the purposes of this\narticle, and shall provide written notification of the provisions of\nthis article to all document destruction contractors registered pursuant\nto this article.\n (b) The secretary of state shall have the power to enforce the\nprovisions of this article and upon complaint of any person, or upon the\nsecretary's initiative, to investigate any violation thereof or to\ninvestigate the business, business practices and business methods of any\nperson, firm, limited liability company, partnership or corporation\napplying for or holding a registration as a document destruction\ncontractor, if in the opinion of the secretary of state such\ninvestigation is warranted. Each such applicant or registrant shall be\nobliged, on request of the secretary of state, to supply such\ninformation, books, papers or records as may be required concerning his,\nher or its business, business practices or business methods, or proposed\nbusiness practices or methods. Failure to comply with a lawful request\nof the secretary shall be a ground for denying an application for a\nregistration, or for revoking, suspending, or failing to renew a\nregistration issued under this article.\n (c) The department shall have the power to revoke or suspend any\nregistration, or in lieu thereof to impose a fine not exceeding one\nthousand dollars payable to the department, or reprimand any registrant\nor deny an application for a registration or renewal thereof upon proof:\n (i) that the applicant or registrant has violated any of the\nprovisions of this article or the rules and regulations promulgated\npursuant to this article;\n (ii) that the applicant or registrant has practiced fraud, deceit or\nmisrepresentation;\n (iii) that the applicant or registrant has made a material\nmisstatement in the application for or renewal of his or her\nregistration;\n (iv) that the applicant or registrant has demonstrated incompetence or\nuntrustworthiness in his or her actions.\n 13. The department shall, before denying an application for a\nregistration or before revoking or suspending any registration, or\nimposing any fine or reprimand, and at least fifteen days prior to the\ndate set for the hearing, and upon due notice to the complainant or\nobjector, notify in writing the applicant for, or the holder of such\nregistration of any charge made and shall afford such applicant or\nregistrant an opportunity to be heard in person or by counsel in\nreference thereto. Such written notice may be served by delivery of same\npersonally to the applicant or registrant, or by mailing same by\nregistered mail to the last known business address of such applicant or\nregistrant.\n 14. The hearing on such charges shall be at such time and place as the\ndepartment shall prescribe and shall be conducted by such officer or\nperson in the department as the secretary of state may designate, who\nshall have the power to subpoena and bring before the officer or person\nso designated any person in this state, and administer an oath to and\ntake testimony of any person or cause his or her deposition to be taken.\nA subpoena issued under this section shall be regulated by the civil\npractice law and rules. Such officer or person in the department\ndesignated to take such testimony shall not be bound by common law or\nstatutory rules of evidence or by technical or formal rules of\nprocedure.\n 15. In the event that the department shall deny the application for,\nor revoke or suspend any such registration, or impose any fine or\nreprimand, its determination shall be in writing and officially signed.\nThe original of such determinations, when so signed, shall be filed in\nthe office of the department and copies thereof shall be mailed to the\napplicant or registrant and to the complainant within two days after\nsuch filing.\n 16. The department, acting by the office or person designated to\nconduct the hearing pursuant to subdivision fourteen of this section or\nby such other officer or person in the department as the secretary of\nstate may designate, shall have the power to suspend the registration of\nany registrant who has been convicted in this state or any other state\nor territory of a felony or of any misdemeanor for a period not\nexceeding thirty days pending a hearing and a determination of charges\nmade against him or her. If such hearing is adjourned at the request of\nthe registrant, or by reason of any act or omission by him or her or on\nhis or her behalf, such suspension may be continued for the additional\nperiod of such adjournment.\n 17. The action of the department in granting or refusing to grant or\nto renew a registration under this article or in revoking or suspending\nor refusing to revoke or suspend such a registration or imposing any\nfine or reprimand shall be subject to review by a proceeding instituted\nunder article seventy-eight of the civil practice law and rules at the\ninstance of the applicant for such registration, the holder of a\nregistration so revoked, suspended, fined or reprimanded or the person\naggrieved.\n 18. The department shall maintain and publish a registry of all\nregistered document destruction contractors, which shall list and\nidentify on a county by county basis, all registered document\ndestruction contractors doing business in this state. The department\nshall make the registry available on its website. Copies of the roster\nshall be made available upon request and payment of a fee to be\ndetermined by the secretary of state and approved by the director of the\ndivision of the budget.\n 19. (a) Any person, firm or corporation that operates as a document\ndestruction contractor without being registered shall be required to pay\na civil penalty in the sum of one thousand dollars per document\ndestruction contract entered into in violation of this section. However,\nany such person, firm or corporation against whom such penalty has been\nassessed may avoid all but five hundred dollars of such penalty by\nobtaining a registration as required by this section, provided that\napplication for such registration is made not more than ten days after\nthe imposition of such penalty and the document destruction contractor\nhas never received a prior fine for failure to register in New York or\nin any other state that requires registration.\n (b) A document destruction contractor may not maintain a civil action\nto recover payment for work under a document destruction contract\nperformed if such contractor is not registered as required under this\nsection.\n 20. Whenever there shall be a violation of this section, an\napplication may be made by the attorney general in the name of the\npeople of the state of New York to a court or justice having\njurisdiction by a special proceeding to issue an injunction, and upon\nnotice to the defendant of not less than five days, to enjoin or\nrestrain the continuance of such violation; and if it shall appear to\nthe satisfaction of the court or justice that the defendant has, in\nfact, violated this section, an injunction may be issued by such court\nor justice, enjoining and restraining any further violation, without\nrequiring proof that any person has, in fact, been injured or damaged\nthereby. In any such proceeding, the court may make allowances to the\nattorney general as provided in paragraph six of subdivision (a) of\nsection eighty-three hundred three of the civil practice law and rules,\nand direct restitution. In connection with any such proposed\napplication, the attorney general is authorized to take proof and make a\ndetermination of the relevant facts and to issue subpoenas in accordance\nwith the civil practice law and rules.\n