S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3566
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   February 12, 2015
                                      ___________
       Introduced  by Sens. ESPAILLAT, KRUEGER -- read twice and ordered print-
         ed, and when printed to be committed  to  the  Committee  on  Consumer
         Protection
       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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04231-01-5
       S. 3566                             2
    1  APPOINTED AND, IF APPLICABLE, THE NAME, BUSINESS ADDRESS, BUSINESS TELE-
    2  PHONE AND AGENT FOR SERVICE OF PROCESS OF THE CORPORATION OR PARTNERSHIP
    3  EMPLOYING SUCH PERSON; (C) A RECORD OF ANY  PRIOR  CONVICTIONS  FOR  ANY
    4  CRIME  COMMITTED IN THIS STATE OR ANY OTHER JURISDICTION.  THE SECRETARY
    5  OF STATE SHALL DEVELOP THE DISCLOSURE FORM REQUIRED TO FILE AN  APPLICA-
    6  TION  AND BOND PURSUANT TO THIS SECTION AND SECTION FOUR HUNDRED SIXTY-G
    7  OF THIS ARTICLE.
    8    3. THE SECRETARY OF STATE SHALL CHARGE AND COLLECT A REASONABLE FILING
    9  FEE AT THE TIME OF APPLICATION AND/OR  RENEWAL  TO  COVER  THE  COST  OF
   10  FILING  THE  BOND REQUIRED BY SECTION FOUR HUNDRED SIXTY-G OF THIS ARTI-
   11  CLE.
   12    4. THE DEPARTMENT OF STATE SHALL MAKE PUBLIC ON ITS WEBSITE UPDATED AT
   13  LEAST MONTHLY, AND SHALL MAKE AVAILABLE IN RESPONSE TO  THE  REQUEST  OF
   14  ANY  CUSTOMER,  A  LIST OF PROVIDERS WHO ARE REGISTERED PURSUANT TO THIS
   15  ARTICLE. EACH PROVIDER  SHALL  CONSPICUOUSLY  POST  ITS  CERTIFICATE  OF
   16  REGISTRATION AT ITS PLACE OF BUSINESS.
   17    5.  IMMIGRANT  ASSISTANCE  SERVICE  PROVIDERS WHO HAVE REGISTERED MUST
   18  INFORM THE SECRETARY OF STATE OF ANY CHANGES IN THEIR  NAME,  ADDRESSES,
   19  OR TELEPHONE NUMBERS WITHIN THIRTY DAYS OF SUCH CHANGE.
   20    6.  THE  SECRETARY  OF  STATE  SHALL  ESTABLISH A PROCEDURE FOR FILING
   21  COMPLAINTS AND INVESTIGATING THE COMPLAINT ON BEHALF OF AN INJURED PARTY
   22  OR ANY OTHER PARTY WHO, UPON INFORMATION AND BELIEF, CLAIMS A  VIOLATION
   23  OF THIS ARTICLE. THE SECRETARY OF STATE SHALL INITIATE ANY INVESTIGATION
   24  NO  LATER THAN THIRTY DAYS AFTER RECEIPT OF A COMPLAINT AND, WHEN APPRO-
   25  PRIATE, MAY REFER ANY SUCH MATTER FOR PROSECUTION TO THE ATTORNEY GENER-
   26  AL OR OTHER APPROPRIATE LAW ENFORCEMENT AUTHORITY.
   27    7. THE DEPARTMENT OF STATE SHALL HAVE THE POWER TO REVOKE  OR  SUSPEND
   28  ANY  CERTIFICATE OF REGISTRATION, OR REPRIMAND ANY REGISTRANT OR DENY AN
   29  APPLICATION FOR A CERTIFICATE OF REGISTRATION OR  RENEWAL  THEREOF  UPON
   30  PROOF:
   31    (A)  THAT  THE  APPLICANT  OR  REGISTRANT  HAS  VIOLATED  ANY  OF  THE
   32  PROVISIONS OF THIS ARTICLE OR  THE  RULES  AND  REGULATIONS  PROMULGATED
   33  HEREUNDER;
   34    (B)  THAT  THE  APPLICANT OR REGISTRANT HAS PRACTICED FRAUD, DECEIT OR
   35  MISREPRESENTATION OR BEEN CONVICTED OF A FELONY;
   36    (C) THAT THE APPLICANT OR REGISTRANT HAS MADE A MATERIAL  MISSTATEMENT
   37  IN THE APPLICATION FOR OR RENEWAL OF HIS OR HER REGISTRATION;
   38    (D)  THAT THE APPLICANT OR REGISTRANT HAS DEMONSTRATED INCOMPETENCE OR
   39  UNTRUSTWORTHINESS IN HIS OR HER ACTIONS.
   40    8. ALL FEES AND OTHER MONEYS DERIVED FROM THE OPERATION OF THIS  ARTI-
   41  CLE  SHALL  ON  THE FIFTH DAY OF EACH MONTH BE PAID BY THE DEPARTMENT OF
   42  STATE INTO THE STATE TREASURY.
   43    S 3. Subdivision 9 of section 460-d of the general  business  law,  as
   44  amended  by  chapter  206  of the laws of 2014, is amended and three new
   45  subdivisions 16, 17 and 18 are added to read as follows:
   46    9. Make any misrepresentation or false statement,  directly  or  indi-
   47  rectly,  INCLUDING,  BUT  NOT  LIMITED TO, FALSELY REPRESENTING THAT THE
   48  OFFERING OR PROVISION OF SERVICES IS NECESSARY, OR THAT THE LIFE, SAFETY
   49  OR WELFARE OF THE CUSTOMER OR HIS  OR  HER  FAMILY  WOULD  BE  ADVERSELY
   50  AFFECTED  IF  THE  SERVICES OF AN IMMIGRANT ASSISTANCE SERVICES PROVIDER
   51  ARE NOT PROVIDED.
   52    16.  PROVIDE  IMMIGRANT  ASSISTANCE  SERVICES  WITHOUT  HAVING   FIRST
   53  OBTAINED  FROM  THE  DEPARTMENT OF STATE A CURRENT, VALID CERTIFICATE OF
   54  REGISTRATION PURSUANT TO SECTION FOUR HUNDRED SIXTY-L  OF  THIS  ARTICLE
   55  AND  HAVING  IN  FULL  FORCE AND EFFECT A BOND, CONTRACT OF INDEMNITY OR
       S. 3566                             3
    1  IRREVOCABLE LETTER OF CREDIT PURSUANT TO SECTION FOUR HUNDRED SIXTY-G OF
    2  THIS ARTICLE.
    3    17.  ADVERTISE  OR OTHERWISE DISSEMINATE BY ANY MEANS ANY STATEMENT OR
    4  OTHER REPRESENTATION INDICATING DIRECTLY OR BY IMPLICATION  THAT  HE  OR
    5  SHE  ENGAGES IN THE BUSINESS OF IMMIGRANT ASSISTANCE SERVICE PROVIDER OR
    6  ACTS IN THE CAPACITY OF AN  IMMIGRANT  ASSISTANCE  SERVICE  PROVIDER  OR
    7  PROPOSES  TO  ENGAGE  IN THE BUSINESS OR ACT IN THE CAPACITY OF AN IMMI-
    8  GRANT ASSISTANCE SERVICE PROVIDER, UNLESS HE OR SHE HAS ON FILE WITH THE
    9  SECRETARY OF STATE A VALID CERTIFICATE OF REGISTRATION PURSUANT TO  THIS
   10  ARTICLE AND A BOND, CONTRACT OF INDEMNITY OR IRREVOCABLE LETTER OF CRED-
   11  IT,  IN  THE  AMOUNT  AND SUBJECT TO THE TERMS DESCRIBED IN SECTION FOUR
   12  HUNDRED SIXTY-G OF THIS ARTICLE.
   13    18.  FAIL TO REVEAL TO THE CLIENT OR CUSTOMER OF SUCH PROVIDER A MATE-
   14  RIAL FACT REGARDING AN IMMIGRATION MATTER OR REGARDING  SERVICES,  WHICH
   15  FACT  COULD NOT BE REASONABLY KNOWN TO THE CLIENT, THE OMISSION OF WHICH
   16  TENDS TO MISLEAD OR DECEIVE THE CLIENT OR CUSTOMER.
   17    S 4. Sections 460-f, 460-h and 460-i of the general business  law,  as
   18  amended  by  chapter  206  of  the  laws of 2014, are amended to read as
   19  follows:
   20    S 460-f. Surety requirement. Every provider  shall  maintain  in  full
   21  force  and  effect  for  the  entire  period  during  which the provider
   22  provides immigrant assistance  services  and  for  one  year  after  the
   23  provider  ceased  to  do  business  as  an  immigrant assistance service
   24  provider, a bond, contract of indemnity, or irrevocable letter of  cred-
   25  it,  payable  to  the  people of the state of New York, in the principal
   26  amount of fifty thousand dollars; provided, however, that every provider
   27  that receives in excess of two hundred fifty thousand dollars  in  total
   28  fees  and  other compensation for providing immigrant assistance service
   29  during any twelve-month period shall maintain in full force and effect a
   30  bond, contract of indemnity, or irrevocable letter of credit, payable to
   31  the people of the state of New York, in the principal amount  of  twenty
   32  percent  of  such  total fees and compensation. Such surety shall be for
   33  the benefit of any customer who does not receive a refund of  fees  from
   34  the  provider to which he or she is entitled, or is otherwise injured by
   35  the provider. The attorney general on behalf  of  the  customer  or  the
   36  customer  in  his  or  her  own name, may maintain an action against the
   37  provider and the surety.  THE SECRETARY OF STATE SHALL POST  INFORMATION
   38  ON  THE  DEPARTMENT  OF STATE WEBSITE DEMONSTRATING THAT THE IMMIGRATION
   39  PROVIDER IS IN COMPLIANCE WITH THE BOND AS REQUIRED BY THIS SECTION.
   40    S 460-h. Enforcement. 1. Upon any violation of this article, an appli-
   41  cation may be made by the attorney general in the name of the people  of
   42  the  state  to  a  court having jurisdiction to issue an injunction, and
   43  upon notice to the respondent of not fewer than five days, to enjoin and
   44  restrain the continuance of the violation. If it  shall  appear  to  the
   45  satisfaction  of  the  court or justice that the defendant has, in fact,
   46  violated this article, an injunction may be  issued  by  such  court  or
   47  justice,  enjoining  and  restraining  any  further  violation,  without
   48  requiring proof that any person has, in fact, been  injured  or  damaged
   49  thereby.  In  any  such proceeding, the court may make allowances to the
   50  attorney general as provided in paragraph  six  of  subdivision  (a)  of
   51  section  eighty-three hundred three of the civil practice law and rules,
   52  and direct restitution.  Whenever  the  court  shall  determine  that  a
   53  violation  of  this  article  has occurred, the court may impose a civil
   54  penalty of not more than [ten thousand dollars] TWENTY THOUSAND  DOLLARS
   55  for  each  violation,  PROVIDED  HOWEVER,  THE  COURT MAY IMPOSE A CIVIL
   56  PENALTY OF NOT MORE THAN TWENTY-FIVE THOUSAND DOLLARS FOR A VIOLATION OF
       S. 3566                             4
    1  SUBDIVISION ONE, TWO, THREE, SIX,  SEVEN  OR  SIXTEEN  OF  SECTION  FOUR
    2  HUNDRED SIXTY-D OF THIS ARTICLE.
    3    2.  A PERSON CLAIMING TO BE AGGRIEVED BY ANY VIOLATION OF THIS ARTICLE
    4  BY A PROVIDER MAY BRING A CIVIL ACTION FOR INJUNCTIVE RELIEF, DAMAGES OR
    5  BOTH. THE COURT SHALL GRANT A PREVAILING PLAINTIFF REASONABLE ATTORNEYS'
    6  FEES AND COSTS. ANY RECOVERY OR PROCEEDING IN A CIVIL ACTION  SHALL  NOT
    7  PRECLUDE  AN  ACTION  BY  THE  ATTORNEY  GENERAL OR DISTRICT ATTORNEY TO
    8  PURSUE CRIMINAL CHARGES AGAINST AN IMMIGRANT ASSISTANCE SERVICE  PROVID-
    9  ER. MINIMAL RECOVERY FOR THE PLAINTIFF SHALL BE FIVE THOUSAND DOLLARS.
   10    S 460-i. Violations. [Any] 1. EXCEPT AS PROVIDED IN SUBDIVISION TWO OF
   11  THIS  SECTION, ANY violation of any provision of this article shall be a
   12  class A misdemeanor, and upon conviction thereof, shall be punishable by
   13  a fine of not more than one thousand dollars, or by imprisonment for not
   14  more than one year, or by both  such  fine  and  imprisonment;  provided
   15  however, a second or subsequent offense shall be punishable by a fine of
   16  not  more  than  three  thousand dollars or by imprisonment for not more
   17  than one year, or by both such fine and imprisonment. In  addition,  the
   18  court  may  order as part of the sentence imposed restitution or repara-
   19  tion to the victim of the crime pursuant to section 60.27 of  the  penal
   20  law.  The  attorney  general  shall  have  the  power  to  prosecute any
   21  violation of this article.
   22    2.   ANY VIOLATION OF SUBDIVISION  ONE,  TWO,  THREE,  SIX,  SEVEN  OR
   23  SIXTEEN OF SECTION FOUR HUNDRED SIXTY-D OF THIS ARTICLE SHALL BE A CLASS
   24  E  FELONY,  PROVIDED  HOWEVER THAT ANY SUCH VIOLATION SHALL BE A CLASS D
   25  FELONY WHEN COMMITTED BY A PERSON WHO HAS PREVIOUSLY BEEN  CONVICTED  OF
   26  ANY SUCH VIOLATION IN THE PRECEDING TEN YEARS.
   27    S  5. This act shall take effect on the first of January next succeed-
   28  ing the date on which it shall have become a law; provided, however that
   29  effective immediately, the addition, amendment and/or repeal of any rule
   30  or regulation necessary for the implementation of this act on its effec-
   31  tive date are authorized and directed to be made  and  completed  on  or
   32  before such effective date.