§ 1038 — Violations, penalties and procedures

§ 1038. Violations, penalties and procedures. 1. Any model management\ncompany or model management group that has failed to comply with the\nregistration requirements of section one thousand thirty-two of this\narticle shall be deemed to have violated this article.\n 2. Any model management company or model management group that has\nfailed to comply within the time specified by law with an order issued\nby the commissioner to comply with the registration requirements of\nsection one thousand thirty-two of this article shall be deemed to have\nviolated this article.\n 3. (a) The commissioner may impose a civil penalty upon a model\nmanagement company, model management group, or client that has been\ndeemed to have violated this article, for three thousand dollars for the\ninitial violation, and for five thousand dollars for a second or\nsubsequent violation.\n (b) The order imposing such civil penalty may be served personally or\nby certified mail in accordance with section thirty-three of this\nchapter. Such order shall be in writing and shall describe the nature\nof the violation, including reference to the provisions of subdivisions\none, two and three of this section alleged to have been violated.\n 4. An order issued under this section shall be final and not subject\nto review by any court or agency unless a review is had pursuant to\nsection one hundred one of this chapter. Provided that no proceeding for\nadministrative or judicial review as provided in this chapter shall then\nbe pending and the time for initiation of such proceeding shall have\nexpired, the commissioner may file with the county clerk of the county\nwhere the person against whom the penalty has been imposed has a place\nof business the order of the commissioner or the decision of the\nindustrial board of appeals containing the amount of the civil penalty.\nThe filing of such order or decision shall have the full force and\neffect of a judgment duly docketed in the office of such clerk. The\norder or decision may be enforced by and in the name of the commissioner\nin the same manner, and with like effect, as that prescribed by the\ncivil practice law and rules for the enforcement of a money judgment.\n 5. If any model management company has failed to comply within twenty\ndays of an order by the commissioner to register or renew registration,\nthe commissioner may seek to enjoin such unlawful activity, pursuant to\nthe civil practice law and rules.\n 6. The attorney general may bring and maintain an action in a court of\ncompetent jurisdiction to enforce the provisions of this article when\nthe attorney general has determined there is reasonable cause to believe\nthat a model management company, model management group, or client has\nengaged in repeated fraudulent or illegal acts or otherwise demonstrates\npersistent fraud or illegality in the carrying on, conducting, or\ntransacting of business.\n 7. (a) A model who is aggrieved by a violation of this article may\nfile a complaint with the commissioner within six years after the acts\nalleged to have violated this article occurred. The commissioner shall\nprescribe the form of the complaint, which shall include, at a minimum:\n (i) the name and mailing address of the model and of the person or\nentity alleged to have violated this article;\n (ii) a statement detailing the terms of the model's contract,\nincluding a copy of such contract if available;\n (iii) the model's occupation;\n (iv) a statement detailing the alleged violations of this article; and\n (v) a signed affirmation that all facts alleged in the complaint are\ntrue.\n (b) (i) Upon receiving a complaint alleging a violation of this\narticle, the commissioner shall send the person or entity named in the\ncomplaint a written notice of complaint. The commissioner shall send\nsuch notice by certified mail in accordance with section thirty-three of\nthe labor law and shall bear the cost of sending such notice.\n (ii) Notice shall include:\n (1) a copy of the complaint;\n (2) materials of remedies available to the model for the violations of\nsaid article by the person or entity named in the complaint;\n (3) materials informing the person or entity that twenty days after\nreceiving the notice of complaint, the person or entity identified in\nthe complaint must answer; and\n (4) materials informing the person or entity that failure to respond\nto the complaint will create a rebuttable presumption in any civil\naction commenced pursuant to this article that such person or entity\ncommitted the violations alleged in the complaint.\n (c) The response shall include:\n (i) a written statement that the model has been paid in full and proof\nof such payment;\n (ii) a written statement that the model has not been paid in full and\nthe reasons for the failure to provide such payment; or\n (iii) a written statement and any proof responding to the violations\nalleged in the complaint.\n (d) (i) Upon receiving the written response, the commissioner shall\nsend the model a copy of:\n (1) the response;\n (2) any enclosures submitted to the commissioner with the response;\nand\n (3) any other information about the status of the complaint.\n (ii) If the commissioner receives no response from the person or\nentity alleged to have violated this article to the notice of complaint\nwithin the time provided by this subdivision, then there shall be a\ndetermination that such person or entity committed the violations\nalleged in the complaint. The commissioner shall mail a notice of\nnon-response to both the model and the person or entity named in the\ncomplaint by regular mail and shall include with such notice proof that\nthe commissioner previously mailed the notice of complaint to the person\nor entity named in the complaint by certified mail.\n 8. An aggrieved model may bring and maintain an action in a court of\ncompetent jurisdiction to enforce the provisions of sections one\nthousand thirty-four and one thousand thirty-five of this article. A\nmodel management company or model management group that violates these\nsections shall be liable for actual damages to any model that has\nsuffered damages due to such violation, reasonable attorneys' fees and\ncosts, and, unless the model management company or group proves a good\nfaith basis to believe that its actions were in compliance with the law,\nan additional amount as liquidated damages in an amount of no more than\none hundred percent of the total amount of actual damages, except such\nliquidated damages may be up to three hundred percent if found that the\nactions were willful.\n 9. No client, model management company, or model management group\nshall be permitted to retaliate against a model for exercising any of\nsuch model's rights under this article, including the right to raise\ncomplaints with the client, model management company, model management\ngroup, commissioner, or attorney general. Any violation of this section\nshall be subject to enforcement in the same manner as prescribed in\nsection two hundred fifteen of this chapter.\n