§ 394 — Drivers' schools

§ 394. Drivers' schools. 1. Definitions. As used in this section:\n (a) "Drivers' school" means the business of giving instruction for\nhire in driving motor vehicles or motorcycles.\n (b) "Person" includes an individual, firm, corporation, partnership,\njoint venture, joint adventurer or association.\n (c) "Place of business" means a designated location at which the\nbusiness of a drivers' school is transacted and its records kept.\n 2. License. No person shall engage in the business of conducting a\ndrivers' school without being the holder of a license for such purpose\nissued by the commissioner. An application for license under this\nsection shall be filed with the commissioner and shall contain such\ninformation as he shall prescribe. Every such application shall be\naccompanied by an application fee of fifty dollars, which shall in no\nevent be refunded. If an application is approved by the commissioner,\nthe applicant upon the payment of an additional fee of five dollars for\neach month or fraction thereof from the date of issuance to the date of\nexpiration prescribed by the commissioner, but in no event more than a\ntotal of fifty dollars, shall be granted a license which shall be valid\nuntil such date of expiration. The annual fee for renewal thereof shall\nbe fifty dollars. Upon renewal, the commissioner may in his discretion\nissue a license which shall be valid for up to a two-year period. The\nfee for a two-year renewal shall be one hundred dollars. Fees for\nrenewal of a license valid for a period of less than two years shall be\nprorated on a quarterly basis and any portion of a quarter shall be\nconsidered a quarter. The commissioner shall issue a license certificate\nto each licensee, which certificate shall be conspicuously displayed in\nthe place of business of the licensee. In case of the loss, mutilation\nor destruction of a license certificate, the commissioner shall issue a\nduplicate thereof upon proof of the facts and payment of a fee of two\ndollars.\n 3. Place of business. (a) No license shall be issued, nor shall any\nrenewal of a license be made, for conducting a drivers' school in a city\nhaving a population of two hundred fifty thousand or more according to\nthe latest federal census, unless the place of business of such school\nis located in a store, office or portion of a building devoted\nexclusively to nonresidential use.\n (b) No license shall be issued, nor shall any renewal of a license be\nmade for conducting a drivers' school in a city having a population of\nfifty thousand or more according to the latest federal census, if the\nplace of business of such school or branch thereof, is within fifteen\nhundred feet of a building owned or leased by the state, the county or a\ncity, in which motor vehicle registrations or licenses to drive motor\nvehicles are issued to the public. The said distance of fifteen hundred\nfeet shall be measured along the public streets by the nearest route\nfrom such place of business, or branch thereof, to such building.\n 4. Refusal to issue a license. The commissioner may deny the\napplication of any person for a license, if, in his discretion, he\ndetermines that:\n (a) Such applicant has made a material false statement or concealed a\nmaterial fact in connection with his application;\n (b) Such applicant, any officer, director, stockholder or partner, or\nany other person directly or indirectly interested in the business was\nthe former holder, or was an officer, director, stockholder or partner,\nin a corporation or partnership which was the former holder of a\ndrivers' school license which was revoked or suspended by the\ncommissioner;\n (c) Such applicant or any officer, director, stockholder, partner,\nemployee, or any other person directly or indirectly interested in the\nbusiness has been convicted of a felony, or of any crime involving\nviolence, dishonesty, deceit, indecency, degeneracy or moral turpitude;\n (d) Such applicant has failed to furnish satisfactory evidence of good\ncharacter, reputation and fitness;\n (e) Such applicant does not have a place of business as required by\nthis section;\n (f) Such applicant is not the true owner of the drivers' school.\n 5. Suspension, revocation and refusal to renew a license. The\ncommissioner, or any employee of the department of motor vehicles\ndeputized by him, may suspend or revoke a license or refuse to issue a\nrenewal thereof for any of the following causes:\n (a) the conviction of the licensee or any partner, officer, agent or\nemployee of such licensee, of a felony, or of any crime involving\nviolence, dishonesty, deceit, indecency, degeneracy or moral turpitude;\n(b) where the licensee has made a material false statement or concealed\na material fact in connection with his application for a license or a\nrenewal thereof; (c) where the licensee has failed to comply with any of\nthe provisions of this section or any of the rules and regulations of\nthe commissioner made pursuant thereto: (d) where the licensee or any\npartner, officer, agent or employee of such licensee has been guilty of\nfraud or fraudulent practices in relation to the business conducted\nunder the license, or guilty of inducing another to resort to fraud or\nfraudulent practices in relation to securing for himself or another a\nlicense to drive a motor vehicle or motorcycle. The term "fraudulent\npractices" as used in this section shall include, but shall not be\nlimited to, any conduct or representation on the part of the licensee,\nor any partner, officer, agent, or employee of a licensee, tending to\ninduce another or to give the impression that a license to operate a\nmotor vehicle or motorcycle, or any other license, registration or\nservice granted by the commissioner, may be obtained by any means other\nthan the ones prescribed by law, or furnishing or obtaining the same by\nillegal or improper means, or requesting, accepting, exacting or\ncollecting money for such purpose.\n Notwithstanding the renewal of a license, the commissioner may revoke\nor suspend such license for causes and violations, as prescribed by this\nsection, occurring during the two license periods immediately preceding\nthe renewal of such license.\n The commissioner, or any person deputized by him, in addition to or in\nlieu of revoking or suspending a license to conduct a driving school in\naccordance with the provisions of this section, may by order require the\nlicensee to pay to the people of this state a penalty in a sum not\nexceeding five hundred dollars for each violation, and upon the failure\nof such licensee to pay such penalty within twenty days after the\nmailing of such order, postage prepaid, registered or certified, and\naddressed to the last known place of business of such licensee, unless\nsuch order is stayed by a court of competent jurisdiction or in\naccordance with the provisions of article three-A of this chapter, the\ncommissioner may revoke the license of such licensee or may suspend the\nsame for such period as he may determine. Civil penalties assessed under\nthis subdivision shall be paid to the commissioner for deposit into the\nstate treasury, and unpaid civil penalties may be recovered by the\ncommissioner in a civil action in the name of the commissioner. In\naddition, as an alternative to such civil action, and provided that no\nproceeding for judicial review shall then be pending and the time for\ninitiation of such proceeding shall have expired, the commissioner may\nfile with the county clerk of the county in which the licensee is\nlocated a final order of the commissioner containing the amount of the\npenalty assessed. The filing of such final order shall have the full\nforce and effect of a judgment duly docketed in the office of such clerk\nand may be enforced in the same manner and with the same effect as that\nprovided by law in respect to executions issued against property upon\njudgments of a court of record.\n 6. Hearing. Except where a refusal to issue a license or renewal, or\nrevocation or suspension, is based solely on a court conviction or\nconvictions, a licensee or applicant shall have an opportunity to be\nheard, such hearing to be held at such time and place as the\ncommissioner shall prescribe. Provided, however, upon a written notice\nof temporary suspension delivered by certified mail to the licensee, a\nlicense may be temporarily suspended pending a hearing. Any such notice\nof temporary suspension shall provide that the suspension is effective\nseventy-two hours after mailing of such notice and shall provide that a\nhearing be scheduled within ten days after the effective date of the\ntemporary suspension.\n A licensee or applicant entitled to a hearing shall be given due\nnotice thereof. The sending of a notice of a hearing by registered mail\nto the last known address of a licensee or applicant ten days prior to\nthe date of the hearing shall be deemed due notice. The commissioner, or\nthe person deputized by him to conduct a hearing, shall have power to\nsubpoena witnesses, administer oaths to witnesses and take testimony of\nany person or cause his deposition to be taken. A subpoena issued under\nthis section shall be regulated by the civil practice law and rules.\nOfficers or employees in the department of taxation and finance, making\nservice of such subpoenas are not entitled to fees and mileage.\n 7. Supervision; records. The commissioner shall approve the form of\ncontract used by all licensees, and may prescribe reasonable rules\ngoverning the terms which may be included in such contracts. Every\nlicensee shall keep such records as the commissioner may by regulation\nrequire. The records of the licensee shall be open to the inspection of\nthe commissioner or his representatives at all times during reasonable\nbusiness hours. The commissioner shall prescribe such reasonable rules\nand regulations as he may deem necessary to carry out the provisions of\nthis section.\n 7-a. Certification of driving time. The commissioner shall establish\nby regulation a certification process by drivers' schools of the amount\nof time a holder of a learner's permit has spent operating a motor\nvehicle or motorcycle while under the immediate supervision of a driving\ninstructor holding an instructor's certificate issued pursuant to\nsubdivision eight of this section. A certificate issued pursuant to this\nsection shall be deemed to be proof of all or a portion of the\nsupervised driving experience required under certification pursuant to\nparagraph (d) of subdivision two of section five hundred two of this\nchapter.\n 8. Instructors. (a) No person shall be employed by a licensee as a\ndriving instructor, nor shall any person give instructions for hire in\nthe operation of motor vehicles or motorcycles unless such person is the\nholder of a driver's license valid for operation in this state and an\ninstructor's certificate issued by the commissioner. Such certificates\nshall be issued only to persons of good reputation and moral character,\nwhose driving records, as determined by the commissioner, qualify them\nas instructors in the operation of motor vehicles or motorcycles. An\napplication for an instructor's certificate must identify the driving\nschool or schools in which the applicant is to act as an instructor and\nshall contain such other information as the commissioner shall\nprescribe. Each such application shall be accompanied by a fee of ten\ndollars which shall in no event be refunded. Such certificate shall be\nissued without payment of any additional fee and shall be limited to use\nin connection with the business of the specified driving school or\nschools. Such certificate shall be valid until the date of expiration\nprescribed by the commissioner and may be validated for use in\nconnection with the business of other driving schools without payment of\nany additional fee. The fee for annual renewal thereof shall be ten\ndollars. Upon renewal, the commissioner may, in his discretion, issue a\nrenewal which shall be valid for up to a two-year period. The fee for a\ntwo-year renewal shall be twenty dollars. Fees for renewal of a\ncertificate valid for a period of less than two years shall be prorated\non a quarterly basis and any portion of a quarter shall be considered a\nquarter.\n (b) The commissioner or any employee of the department of motor\nvehicles deputized by him, may suspend or revoke an instructor's\ncertificate for any of the following causes: (1) expiration, suspension\nor revocation of the required license of such instructor; (2) the\ncommissioner has determined that the driving record of such instructor\nindicates that such instructor does not possess the qualities or\ncompetence necessary or desirable for a driving instructor; (3) such\ninstructor has failed to comply with the rules and regulations\nprescribed by the commissioner; (4) conviction of such instructor of a\nfelony or any crime involving violence, dishonesty, deceit, indecency,\ndegeneracy or moral turpitude; and (5) such instructor has been guilty\nof fraud or fraudulent practices.\n 8-a. Fees; deposited. Fees assessed under this section shall be paid\nto the commissioner for deposit to the general fund.\n 9. Employees. A licensee may employ, in connection with a driving\nschool a person who has been convicted of a crime, in accordance with\narticle twenty-three-A of the correction law.\n 10. Judicial review. The action of the commissioner in refusing to\nissue or renew, or revoking or suspending a license or instructor's\ncertificate may be reviewed in a proceeding under article seventy-eight\nof the civil practice law and rules.\n 11. Penalties. (a) A violation of any of the provisions of this\nsection shall constitute a misdemeanor.\n (b) During the pendency of any criminal prosecution based upon a\nviolation of this section or if any such prosecution has been terminated\nand the defendant has been sentenced to pay a fine as provided in this\nchapter, no proceeding to recover civil penalties under this section\nshall be commenced and any such pending proceeding shall be stayed.\n 12. Unlicensed operation; procedures and penalties. (a) The\ncommissioner or any person deputized by him shall hear and determine any\nallegation that a person has operated a drivers' school without being\nlicensed as required by subdivision two of this section. Upon a\ndetermination that a person has so operated, the commissioner or person\ndeputized by him shall assess civil penalties as provided in paragraphs\n(b) and (c) of this subdivision.\n (b) Except as provided in paragraph (c) of this subdivision, any\nperson who operates a drivers' school without being licensed shall be\nrequired to pay to the people of this state a civil penalty in the sum\nof one thousand dollars. However, any such person against whom such\npenalty has been assessed may avoid all but five hundred dollars of such\npenalty by obtaining a license as required by this section, provided\nthat application for such license is made not more than ten days after\nthe imposition of such penalty.\n (c) (i) Any person who operates a drivers' school while his drivers'\nschool license is revoked or suspended, shall pay to the people of this\nstate a civil penalty in the sum of one thousand dollars. Such civil\npenalty may not be avoided.\n (ii) Any person who operates a drivers' school without being licensed\nas required by subdivision two of this section who has previously had a\ncivil penalty assessed for unlicensed operation shall pay to the people\nof this state a civil penalty in the sum of one thousand dollars. Such\ncivil penalty may not be avoided.\n (d) Civil penalties assessed under this section shall be paid to the\ncommissioner for deposit into the state treasury, and unpaid civil\npenalties may be recovered by the commissioner in a civil action in the\nname of the commissioner. In addition, as an alternative to such civil\naction, and provided that no proceeding for judicial review 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\nin which the licensee is located a final order of the commissioner\ncontaining the amount of the penalty assessed. The filing of such final\norder shall have the full force and effect of a judgment duly docketed\nin the office of such clerk and may be enforced in the same manner and\nwith the same effect as that provided by law in respect to executions\nissued against property upon judgments of a court of record.\n