S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5855
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                     March 5, 2015
                                      ___________
       Introduced by M. of A. KAVANAGH, MOSLEY -- read once and referred to the
         Committee on Economic Development
       AN  ACT  to  amend the general business law, in relation to enacting the
         Immigration Provider Enforced Disclosure Information and  Registration
         (IMPEDIR) Act of 2015
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. This act shall be known and may  be  cited  as  the  "Immi-
    2  gration Provider Enforced Disclosure Information and Registration (IMPE-
    3  DIR) Act of 2015".
    4    S 2. The general business law is amended by adding a new section 460-l
    5  to read as follows:
    6    S  460-L.  CERTIFICATE  OF  REGISTRATION.   1. THE DEPARTMENT OF STATE
    7  SHALL, IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION, ISSUE  CERTIF-
    8  ICATES  OF  REGISTRATION WHICH SHALL BE VALID, UNLESS EARLIER REVOKED OR
    9  SUSPENDED, FOR A PERIOD OF TWO YEARS, TO PROVIDERS  AND,  UPON  APPLICA-
   10  TION,  ISSUE  RENEWAL  CERTIFICATES OF REGISTRATION EVERY TWO YEARS. THE
   11  SECRETARY OF STATE SHALL ENFORCE THE PROVISIONS OF THIS ARTICLE  GOVERN-
   12  ING  THE  FILING  AND  MAINTENANCE  OF SURETY BONDS AND APPLICATIONS FOR
   13  REGISTRATION AND/OR RENEWAL.
   14    2. ANY PERSON INTENDING TO ENGAGE, AS AN IMMIGRANT ASSISTANCE  SERVICE
   15  PROVIDER, IN ANY ONE OR MORE OF THE ACTIVITIES SET FORTH IN THIS ARTICLE
   16  SHALL  FILE  WITH  THE  DEPARTMENT  OF  STATE  A WRITTEN APPLICATION AND
   17  DISCLOSURE, ON FORMS TO BE PROVIDED BY THE DEPARTMENT OF STATE, CONTAIN-
   18  ING SUCH INFORMATION AND DOCUMENTATION TO BE RETAINED BY  THE  SECRETARY
   19  OF  STATE  AS  THE SECRETARY OF STATE MAY REQUIRE BY RULE OR REGULATION,
   20  INCLUDING BUT NOT LIMITED TO: (A) THE NAME,  DATE  OF  BIRTH,  RESIDENCE
   21  ADDRESS,  BUSINESS  ADDRESS,  RESIDENCE  TELEPHONE  NUMBER, AND BUSINESS
   22  TELEPHONE NUMBER OF SUCH PERSON;  (B)  THE  NAME  AND  ADDRESS  OF  SUCH
   23  PERSON'S  AGENT  FOR  SERVICE  OF PROCESS IF ONE IS REQUIRED OR HAS BEEN
   24  APPOINTED AND, IF APPLICABLE, THE NAME, BUSINESS ADDRESS, BUSINESS TELE-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04231-01-5
       A. 5855                             2
    1  PHONE AND AGENT FOR SERVICE OF PROCESS OF THE CORPORATION OR PARTNERSHIP
    2  EMPLOYING SUCH PERSON; (C) A RECORD OF ANY  PRIOR  CONVICTIONS  FOR  ANY
    3  CRIME  COMMITTED IN THIS STATE OR ANY OTHER JURISDICTION.  THE SECRETARY
    4  OF  STATE SHALL DEVELOP THE DISCLOSURE FORM REQUIRED TO FILE AN APPLICA-
    5  TION AND BOND PURSUANT TO THIS SECTION AND SECTION FOUR HUNDRED  SIXTY-G
    6  OF THIS ARTICLE.
    7    3. THE SECRETARY OF STATE SHALL CHARGE AND COLLECT A REASONABLE FILING
    8  FEE  AT  THE  TIME  OF  APPLICATION  AND/OR RENEWAL TO COVER THE COST OF
    9  FILING THE BOND REQUIRED BY SECTION FOUR HUNDRED SIXTY-G OF  THIS  ARTI-
   10  CLE.
   11    4. THE DEPARTMENT OF STATE SHALL MAKE PUBLIC ON ITS WEBSITE UPDATED AT
   12  LEAST  MONTHLY,  AND  SHALL MAKE AVAILABLE IN RESPONSE TO THE REQUEST OF
   13  ANY CUSTOMER, A LIST OF PROVIDERS WHO ARE REGISTERED  PURSUANT  TO  THIS
   14  ARTICLE.  EACH  PROVIDER  SHALL  CONSPICUOUSLY  POST  ITS CERTIFICATE OF
   15  REGISTRATION AT ITS PLACE OF BUSINESS.
   16    5. IMMIGRANT ASSISTANCE SERVICE PROVIDERS  WHO  HAVE  REGISTERED  MUST
   17  INFORM  THE  SECRETARY OF STATE OF ANY CHANGES IN THEIR NAME, ADDRESSES,
   18  OR TELEPHONE NUMBERS WITHIN THIRTY DAYS OF SUCH CHANGE.
   19    6. THE SECRETARY OF STATE  SHALL  ESTABLISH  A  PROCEDURE  FOR  FILING
   20  COMPLAINTS AND INVESTIGATING THE COMPLAINT ON BEHALF OF AN INJURED PARTY
   21  OR  ANY OTHER PARTY WHO, UPON INFORMATION AND BELIEF, CLAIMS A VIOLATION
   22  OF THIS ARTICLE. THE SECRETARY OF STATE SHALL INITIATE ANY INVESTIGATION
   23  NO LATER THAN THIRTY DAYS AFTER RECEIPT OF A COMPLAINT AND, WHEN  APPRO-
   24  PRIATE, MAY REFER ANY SUCH MATTER FOR PROSECUTION TO THE ATTORNEY GENER-
   25  AL OR OTHER APPROPRIATE LAW ENFORCEMENT AUTHORITY.
   26    7.  THE  DEPARTMENT OF STATE SHALL HAVE THE POWER TO REVOKE OR SUSPEND
   27  ANY CERTIFICATE OF REGISTRATION, OR REPRIMAND ANY REGISTRANT OR DENY  AN
   28  APPLICATION  FOR  A  CERTIFICATE OF REGISTRATION OR RENEWAL THEREOF UPON
   29  PROOF:
   30    (A)  THAT  THE  APPLICANT  OR  REGISTRANT  HAS  VIOLATED  ANY  OF  THE
   31  PROVISIONS  OF  THIS  ARTICLE  OR  THE RULES AND REGULATIONS PROMULGATED
   32  HEREUNDER;
   33    (B) THAT THE APPLICANT OR REGISTRANT HAS PRACTICED  FRAUD,  DECEIT  OR
   34  MISREPRESENTATION OR BEEN CONVICTED OF A FELONY;
   35    (C)  THAT THE APPLICANT OR REGISTRANT HAS MADE A MATERIAL MISSTATEMENT
   36  IN THE APPLICATION FOR OR RENEWAL OF HIS OR HER REGISTRATION;
   37    (D) THAT THE APPLICANT OR REGISTRANT HAS DEMONSTRATED INCOMPETENCE  OR
   38  UNTRUSTWORTHINESS IN HIS OR HER ACTIONS.
   39    8.  ALL FEES AND OTHER MONEYS DERIVED FROM THE OPERATION OF THIS ARTI-
   40  CLE SHALL ON THE FIFTH DAY OF EACH MONTH BE PAID BY  THE  DEPARTMENT  OF
   41  STATE INTO THE STATE TREASURY.
   42    S  3.  Subdivision  9 of section 460-d of the general business law, as
   43  amended by chapter 206 of the laws of 2014, is  amended  and  three  new
   44  subdivisions 16, 17 and 18 are added to read as follows:
   45    9.  Make  any  misrepresentation or false statement, directly or indi-
   46  rectly, INCLUDING, BUT NOT LIMITED TO,  FALSELY  REPRESENTING  THAT  THE
   47  OFFERING OR PROVISION OF SERVICES IS NECESSARY, OR THAT THE LIFE, SAFETY
   48  OR  WELFARE  OF  THE  CUSTOMER  OR  HIS OR HER FAMILY WOULD BE ADVERSELY
   49  AFFECTED IF THE SERVICES OF AN IMMIGRANT  ASSISTANCE  SERVICES  PROVIDER
   50  ARE NOT PROVIDED.
   51    16.   PROVIDE  IMMIGRANT  ASSISTANCE  SERVICES  WITHOUT  HAVING  FIRST
   52  OBTAINED FROM THE DEPARTMENT OF STATE A CURRENT,  VALID  CERTIFICATE  OF
   53  REGISTRATION  PURSUANT  TO  SECTION FOUR HUNDRED SIXTY-L OF THIS ARTICLE
   54  AND HAVING IN FULL FORCE AND EFFECT A BOND,  CONTRACT  OF  INDEMNITY  OR
   55  IRREVOCABLE LETTER OF CREDIT PURSUANT TO SECTION FOUR HUNDRED SIXTY-G OF
   56  THIS ARTICLE.
       A. 5855                             3
    1    17.  ADVERTISE  OR OTHERWISE DISSEMINATE BY ANY MEANS ANY STATEMENT OR
    2  OTHER REPRESENTATION INDICATING DIRECTLY OR BY IMPLICATION  THAT  HE  OR
    3  SHE  ENGAGES IN THE BUSINESS OF IMMIGRANT ASSISTANCE SERVICE PROVIDER OR
    4  ACTS IN THE CAPACITY OF AN  IMMIGRANT  ASSISTANCE  SERVICE  PROVIDER  OR
    5  PROPOSES  TO  ENGAGE  IN THE BUSINESS OR ACT IN THE CAPACITY OF AN IMMI-
    6  GRANT ASSISTANCE SERVICE PROVIDER, UNLESS HE OR SHE HAS ON FILE WITH THE
    7  SECRETARY OF STATE A VALID CERTIFICATE OF REGISTRATION PURSUANT TO  THIS
    8  ARTICLE AND A BOND, CONTRACT OF INDEMNITY OR IRREVOCABLE LETTER OF CRED-
    9  IT,  IN  THE  AMOUNT  AND SUBJECT TO THE TERMS DESCRIBED IN SECTION FOUR
   10  HUNDRED SIXTY-G OF THIS ARTICLE.
   11    18.  FAIL TO REVEAL TO THE CLIENT OR CUSTOMER OF SUCH PROVIDER A MATE-
   12  RIAL FACT REGARDING AN IMMIGRATION MATTER OR REGARDING  SERVICES,  WHICH
   13  FACT  COULD NOT BE REASONABLY KNOWN TO THE CLIENT, THE OMISSION OF WHICH
   14  TENDS TO MISLEAD OR DECEIVE THE CLIENT OR CUSTOMER.
   15    S 4. Sections 460-f, 460-h and 460-i of the general business  law,  as
   16  amended  by  chapter  206  of  the  laws of 2014, are amended to read as
   17  follows:
   18    S 460-f. Surety requirement. Every provider  shall  maintain  in  full
   19  force  and  effect  for  the  entire  period  during  which the provider
   20  provides immigrant assistance  services  and  for  one  year  after  the
   21  provider  ceased  to  do  business  as  an  immigrant assistance service
   22  provider, a bond, contract of indemnity, or irrevocable letter of  cred-
   23  it,  payable  to  the  people of the state of New York, in the principal
   24  amount of fifty thousand dollars; provided, however, that every provider
   25  that receives in excess of two hundred fifty thousand dollars  in  total
   26  fees  and  other compensation for providing immigrant assistance service
   27  during any twelve-month period shall maintain in full force and effect a
   28  bond, contract of indemnity, or irrevocable letter of credit, payable to
   29  the people of the state of New York, in the principal amount  of  twenty
   30  percent  of  such  total fees and compensation. Such surety shall be for
   31  the benefit of any customer who does not receive a refund of  fees  from
   32  the  provider to which he or she is entitled, or is otherwise injured by
   33  the provider. The attorney general on behalf  of  the  customer  or  the
   34  customer  in  his  or  her  own name, may maintain an action against the
   35  provider and the surety.  THE SECRETARY OF STATE SHALL POST  INFORMATION
   36  ON  THE  DEPARTMENT  OF STATE WEBSITE DEMONSTRATING THAT THE IMMIGRATION
   37  PROVIDER IS IN COMPLIANCE WITH THE BOND AS REQUIRED BY THIS SECTION.
   38    S 460-h. Enforcement. 1. Upon any violation of this article, an appli-
   39  cation may be made by the attorney general in the name of the people  of
   40  the  state  to  a  court having jurisdiction to issue an injunction, and
   41  upon notice to the respondent of not fewer than five days, to enjoin and
   42  restrain the continuance of the violation. If it  shall  appear  to  the
   43  satisfaction  of  the  court or justice that the defendant has, in fact,
   44  violated this article, an injunction may be  issued  by  such  court  or
   45  justice,  enjoining  and  restraining  any  further  violation,  without
   46  requiring proof that any person has, in fact, been  injured  or  damaged
   47  thereby.  In  any  such proceeding, the court may make allowances to the
   48  attorney general as provided in paragraph  six  of  subdivision  (a)  of
   49  section  eighty-three hundred three of the civil practice law and rules,
   50  and direct restitution.  Whenever  the  court  shall  determine  that  a
   51  violation  of  this  article  has occurred, the court may impose a civil
   52  penalty of not more than [ten thousand dollars] TWENTY THOUSAND  DOLLARS
   53  for  each  violation,  PROVIDED  HOWEVER,  THE  COURT MAY IMPOSE A CIVIL
   54  PENALTY OF NOT MORE THAN TWENTY-FIVE THOUSAND DOLLARS FOR A VIOLATION OF
   55  SUBDIVISION ONE, TWO, THREE, SIX,  SEVEN  OR  SIXTEEN  OF  SECTION  FOUR
   56  HUNDRED SIXTY-D OF THIS ARTICLE.
       A. 5855                             4
    1    2.  A PERSON CLAIMING TO BE AGGRIEVED BY ANY VIOLATION OF THIS ARTICLE
    2  BY A PROVIDER MAY BRING A CIVIL ACTION FOR INJUNCTIVE RELIEF, DAMAGES OR
    3  BOTH. THE COURT SHALL GRANT A PREVAILING PLAINTIFF REASONABLE ATTORNEYS'
    4  FEES AND COSTS. ANY RECOVERY OR PROCEEDING IN A CIVIL ACTION  SHALL  NOT
    5  PRECLUDE  AN  ACTION  BY  THE  ATTORNEY  GENERAL OR DISTRICT ATTORNEY TO
    6  PURSUE CRIMINAL CHARGES AGAINST AN IMMIGRANT ASSISTANCE SERVICE  PROVID-
    7  ER. MINIMAL RECOVERY FOR THE PLAINTIFF SHALL BE FIVE THOUSAND DOLLARS.
    8    S 460-i. Violations. [Any] 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF
    9  THIS  SECTION, ANY violation of any provision of this article shall be a
   10  class A misdemeanor, and upon conviction thereof, shall be punishable by
   11  a fine of not more than one thousand dollars, or by imprisonment for not
   12  more than one year, or by both  such  fine  and  imprisonment;  provided
   13  however, a second or subsequent offense shall be punishable by a fine of
   14  not  more  than  three  thousand dollars or by imprisonment for not more
   15  than one year, or by both such fine and imprisonment. In  addition,  the
   16  court  may  order as part of the sentence imposed restitution or repara-
   17  tion to the victim of the crime pursuant to section 60.27 of  the  penal
   18  law.  The  attorney  general  shall  have  the  power  to  prosecute any
   19  violation of this article.
   20    2.   ANY VIOLATION OF SUBDIVISION  ONE,  TWO,  THREE,  SIX,  SEVEN  OR
   21  SIXTEEN OF SECTION FOUR HUNDRED SIXTY-D OF THIS ARTICLE SHALL BE A CLASS
   22  E  FELONY,  PROVIDED  HOWEVER THAT ANY SUCH VIOLATION SHALL BE A CLASS D
   23  FELONY WHEN COMMITTED BY A PERSON WHO HAS PREVIOUSLY BEEN  CONVICTED  OF
   24  ANY SUCH VIOLATION IN THE PRECEDING TEN YEARS.
   25    S  5. This act shall take effect on the first of January next succeed-
   26  ing the date on which it shall have become a law; provided, however that
   27  effective immediately, the addition, amendment and/or repeal of any rule
   28  or regulation necessary for the implementation of this act on its effec-
   29  tive date are authorized and directed to be made  and  completed  on  or
   30  before such effective date.