Bill Text: NY S06851 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to establishing a system for the licensure of radon service professionals.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO JUDICIARY [S06851 Detail]
Download: New_York-2017-S06851-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6851 2017-2018 Regular Sessions IN SENATE August 16, 2017 ___________ Introduced by Sen. AKSHAR -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the real property law, in relation to radon service professional licensing The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The real property law is amended by adding a new article 2 12-D to read as follows: 3 ARTICLE 12-D 4 RADON SERVICE PROFESSIONAL LICENSING 5 Section 447-a. Short title. 6 447-b. Definitions. 7 447-c. State radon service professional council. 8 447-d. License requirements. 9 447-e. Qualifications for licensure. 10 447-f. License periods, renewals and fees. 11 447-g. Duty of care of radon service professionals. 12 447-h. Suspension and revocation of licenses. 13 447-i. Denial of license; complaints; notice of hearing. 14 447-j. Liability coverage. 15 447-k. Duties of the secretary. 16 447-l. Unlicensed activities. 17 447-m. Violations and penalties for unlicensed activities. 18 447-n. Judicial review. 19 447-o. Severability. 20 § 447-a. Short title. This article shall be known and may be cited as 21 the "radon service professional licensing act". 22 § 447-b. Definitions. As used in this article, the following terms 23 shall have the following meanings: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11983-05-7S. 6851 2 1 1. "Council" means the state radon service council established pursu- 2 ant to the provisions of section four hundred forty-seven-c of this 3 article. 4 2. "Client" means any person who engages or seeks to engage the 5 services of a radon service professional for the purpose of obtaining a 6 radon measurement test or radon mitigation service of a property. 7 3. "Department" means the department of state. 8 4. "Radon service professional" means a person licensed pursuant to 9 the provisions of this article. 10 5. "Radon measurement professional" means a radon service professional 11 who deploys and retrieves radon detectors and provides a report of the 12 associated measurement results that are generated by a radon analytical 13 laboratory. 14 6. "Radon mitigation professional" means a radon service professional 15 who interprets radon test results and determines the most effective way 16 to manage radon concentrations within buildings. Management plans may 17 include requirements for further diagnostic testing and/or the design 18 and installation of radon mitigation systems. 19 7. "Radon measurement test" means a test performed or procedures used 20 to determine if radon mitigation is necessary in order to protect 21 current and future occupants. 22 8. "Radon mitigation service" means application of materials and/or 23 installation of systems and materials to reduce radon concentrations in 24 the indoor atmosphere or prevent entry of radon into the indoor atmos- 25 phere. 26 9. "Radon analytical laboratory" means a radiological laboratory that 27 analyzes samples for the presence of radon and/or radon decay in 28 products in a facility separate from the location in which the sample 29 was taken using stationary detection equipment. 30 10. "Person" means an individual, firm, company, partnership, limited 31 liability company, or corporation. 32 11. "Residential building" means a structure consisting of one to four 33 dwelling units and their garages and carport but shall not include any 34 such structure newly constructed or not previously occupied as a dwell- 35 ing unit. 36 12. "Secretary" means the secretary of the department of state. 37 § 447-c. State radon service professional council. 1. There is hereby 38 established a state radon service professional council within the 39 department. The council shall consist of the secretary or the secre- 40 tary's designee and six additional members who are residents of the 41 state, of whom four shall be persons licensed and actively engaged in 42 the business of professional radon services. The four radon service 43 professionals shall include two individuals who have specialized in 44 radon measurement services and two who specialized in radon mitigation 45 services in the state of New York for at least five years immediately 46 preceding their appointment. The remaining two members shall be consum- 47 ers who are the owners and principal residents of a building in the 48 state of New York. Appointments shall reflect the geographical diversity 49 of the state. 50 2. For a period of one year after the effective date of this section, 51 and notwithstanding any other provisions of this section to the contra- 52 ry, the first radon service professionals appointed as members of the 53 committee shall not be required, at the time of their first appointment, 54 to be licensed to practice radon professional services, provided that 55 such members be licensed pursuant to this article within one year of 56 appointment.S. 6851 3 1 3. The governor shall appoint each member of the council for a term of 2 three years except that of the members first appointed, two shall serve 3 for terms of three years, two shall serve for terms of two years and two 4 shall serve for a term of one year. The governor shall appoint two radon 5 service professionals and one consumer upon the recommendation of the 6 temporary president of the senate and two radon service professionals 7 and one consumer upon the recommendation of the speaker of the assembly. 8 Each member shall hold office until his or her successor has been quali- 9 fied. Any vacancy in the membership of the council shall be filled for 10 the unexpired term in the manner provided for the original appointment. 11 No member of the council may serve more than two successive terms in 12 addition to any unexpired term to which he or she has been appointed. 13 4. Members of the council shall receive no compensation but shall be 14 reimbursed for their actual and necessary expenses and provided with 15 office and meeting facilities and personnel required for the proper 16 conduct of the council's business. 17 5. The council shall annually elect from among its members a chair and 18 vice-chair and may appoint a secretary, who need not be a member of the 19 council. The council shall meet at least twice a year and may hold addi- 20 tional meetings as necessary to discharge its duties. 21 6. The role of the council shall be advisory. The council shall advise 22 the secretary in the administration and enforcement of the provisions of 23 this article and recommend to the secretary regulations to implement the 24 provisions of this article including but not limited to: 25 (a) standards for training including approval of the course of study 26 and examination required for licensure of radon service professionals; 27 (b) requirements and standards for continuing education of radon 28 service professionals; 29 (c) a code of ethics and standards of practice for licensed radon 30 service professionals which shall be subject to public notice and 31 comment prior to a council recommendation to the secretary. The stand- 32 ards of practice shall not require a reporting format or limit informa- 33 tion which licensees are authorized to provide a client pursuant to this 34 article; and 35 (d) publicly adopt and reference radon professional standards 36 published by the American National Standards Institute, or other accred- 37 ited consensus national standards developers, and certification criteria 38 or policies and exams established by either the National Radon Profi- 39 ciency Program or the National Radon Safety Board or any radon certif- 40 ication agency recognized by the United States Environmental Protection 41 Agency. 42 Nothing in this section shall be deemed to supersede any established 43 authority, duty and power established by local law, state law or regu- 44 lation or otherwise granted to any agency, body or entity. 45 § 447-d. License requirements. No person shall conduct or represent 46 that he or she has the ability to conduct radon professional services 47 for compensation unless such person is licensed as a radon service 48 professional pursuant to this article or a person providing radon 49 professional services for the purpose of meeting the requirements of 50 four hundred forty-seven-e of this article to qualify for licensure as a 51 radon service professional. 52 § 447-e. Qualifications for licensure. 1. An applicant for a license 53 as a radon service professional shall: 54 (a) have successfully completed high school or its equivalent; 55 (b) have successfully completed a course of study approved by the 56 secretary, of not less than sixteen hours for radon measurement profes-S. 6851 4 1 sionals and forty hours for radon mitigation professionals. Such hours 2 for radon mitigation professionals shall be composed of sixteen hours of 3 measurement testing and twenty-four hours of mitigation training; 4 (c) have passed an approved national radon certification program, 5 residential radon measurement provider exam or residential radon miti- 6 gation provider exam. An applicant who has passed an existing nationally 7 recognized examination, as approved by the secretary, prior to the 8 effective date of this article shall be in compliance with this para- 9 graph; and 10 (d) pay the applicable fees. 11 2. The provisions of this section shall not apply to a person perform- 12 ing radon professional services pursuant to paragraph (b) of subdivision 13 one of this section for the purpose of meeting requirements for a radon 14 service professional license. 15 3. Upon submission of an application and payment of the application 16 and licensure fee to the secretary, the secretary shall issue a radon 17 service professional's license to a person who holds a valid license as 18 a radon service professional issued by another state or possession of 19 the United States or the District of Columbia which has standards 20 substantially equivalent to those of this state as determined by the 21 secretary. 22 § 447-f. License periods, renewals and fees. 1. Radon service profes- 23 sional licenses and renewals thereof shall be issued for a period of two 24 years, except that the secretary may, in order to stagger the expiration 25 date thereof, provide that those licenses first issued or renewed after 26 the effective date of this section shall expire or become void on a date 27 fixed by the secretary, not sooner than six months nor later than twen- 28 ty-nine months after the date of issue. No renewal of a license shall be 29 issued unless the applicant has successfully completed a course of 30 continuing education approved by the secretary. 31 2. The secretary shall collect a fee of seven hundred fifty dollars 32 for the first application for a license and the license as a radon 33 service professional. The secretary shall collect a fee of one thousand 34 dollars to renew a radon service professional license. All fees and any 35 fines imposed by the secretary pursuant to this article shall be depos- 36 ited in the business and licensing services account established pursuant 37 to section ninety-seven-y of the state finance law. 38 § 447-g. Duty of care of radon service professionals. 1. Every radon 39 service professional shall comply with the provisions of this article, 40 and the rules, regulations and standards adopted pursuant thereto. The 41 duty of every radon service professional shall be to the client. 42 2. Every radon service professional shall display his or her license 43 number and status as a licensed radon service professional on every 44 report and in all advertising. Upon request of any client or interested 45 party to a real estate transaction, every radon service professional 46 shall provide such proof of licensure pursuant to this article as shall 47 be issued by the secretary for such purpose. 48 3. No later than ten business days after the completion of a radon 49 measurement on behalf of a client, each radon service professional shall 50 provide such client with a written report of the findings of such meas- 51 urement. Every such written report and the information contained therein 52 shall be deemed confidential and shall not be disclosed without the 53 express consent of the client; provided, however, that department repre- 54 sentatives, conducting an investigation or other official business for 55 the purpose of enforcing this article, shall have access to such reports 56 and the information contained therein.S. 6851 5 1 § 447-h. Suspension and revocation of licenses. 1. The secretary may 2 refuse to grant or may suspend or revoke a radon service professional 3 license, and may impose a civil penalty not to exceed one thousand 4 dollars per violation, upon proof to the satisfaction of the secretary 5 that the holder thereof has: 6 (a) Violated the provisions of subdivision four of section four 7 hundred forty-seven-g of this article; 8 (b) Disclosed any information concerning the results of the radon test 9 without the approval of the client or the client's representatives; 10 (c) Accepted compensation from more than one interested party for the 11 same service without the consent of all interested parties; 12 (d) Accepted commissions or allowances, directly or indirectly, from 13 other parties dealing with the client in connection with work for which 14 the licensee is responsible; 15 (e) Failed to disclose promptly to a client information about any 16 business interest of the licensee which may reasonably affect the client 17 in connection with the radon service report; 18 (f) Been convicted of a felony involving fraud, theft, perjury or 19 bribery; 20 (g) Failed to pay a fine or restitution ordered by the secretary with- 21 in a reasonable time; or 22 (h) Made a willfully false statement in the context of radon service 23 report or an application for licensure pursuant to this article. 24 2. Whenever a license is revoked pursuant to this section, such 25 license shall not be reinstated or reissued until after the expiration 26 of a period of five years from the date of such revocation. 27 § 447-i. Denial of license; complaints; notice of hearing. The depart- 28 ment shall, before making a final determination to deny an application 29 for a license, revoke a license, suspend a license, issue a reprimand, 30 or impose a civil penalty for violation of this article, notify the 31 applicant or licensee in writing of the reasons for such proposed 32 denial, revocation, suspension, reprimand, or imposition of a civil 33 penalty and afford the applicant or licensee an opportunity to be heard 34 in person or by counsel. Such notification shall be served personally 35 or by certified mail or in any manner authorized by the civil practice 36 law and rules for service of a summons. If a hearing is requested, such 37 hearing shall be held at such time and place as the department shall 38 prescribe and shall be conducted in accordance with the provisions of 39 the state administrative procedure act. If the applicant or licensee 40 fails to make a written request for a hearing within thirty days after 41 receipt of such notification, then the notification shall become the 42 final determination of the department. The department, acting by such 43 officer or person in the department as the secretary may designate, 44 shall have the power to subpoena and bring before the officer or person 45 so designated any person in this state and administer an oath to and 46 take testimony of any person or cause his or her deposition to be taken. 47 A subpoena issued under this section shall be regulated by the civil 48 practice law and rules. If, after such hearing, the license is denied, 49 revoked, or suspended, a reprimand is issued, or a civil penalty is 50 imposed, written notice of such determination shall be served upon the 51 applicant or licensee personally or by certified mail or in any manner 52 authorized by the civil practice law and rules for the service of a 53 summons. 54 § 447-j. Liability coverage. 1. Every licensed radon service profes- 55 sional who is engaged in radon professional services shall secure, main- 56 tain, and file with the secretary proof of a certificate of liabilityS. 6851 6 1 coverage, which terms and conditions shall be determined by the secre- 2 tary. 3 2. Every proof of liability coverage required to be filed with the 4 secretary shall provide that cancellation or nonrenewal of the policy 5 shall not be effective unless and until at least ten days' notice of 6 intention to cancel or nonrenew has been received in writing by the 7 secretary. 8 § 447-k. Duties of the secretary. The secretary shall establish such 9 rules and regulations as shall be necessary to implement the provisions 10 of this article. 11 § 447-l. Unlicensed activities. The secretary may issue an order 12 requiring restitution and/or directing the cessation of any activity for 13 which a license is required by this article upon a determination that a 14 person has engaged in or followed the business or occupation of, or held 15 himself, herself, or itself out as or acted as, temporarily or other- 16 wise, a radon service professional within this state without a valid 17 license. The department shall, before making such determination and 18 order, give such person notice as provided in section four hundred 19 forty-seven-i of this article and afford such person an opportunity to 20 be heard in person or by counsel in reference thereto in an adjudicatory 21 proceeding held pursuant to this article. 22 § 447-m. Violations and penalties for unlicensed activities. Any 23 person subject to an administrative order issued by the secretary 24 directing the cessation of any activity for which a license is required 25 and/or suspending or revoking a license previously issued who directly 26 or indirectly engages in the business of radon professional services, 27 holds himself, herself, or itself out to the public as being able to 28 engage in the business of radon professional services without a license 29 therefor, engages in the business of home inspection after having his or 30 her license revoked or suspended, or without a license to engage in the 31 business of radon professional services directly or indirectly employs, 32 permits or authorizes an unlicensed person to engage in the business of 33 radon professional services shall be guilty of a misdemeanor and upon 34 the first conviction thereof shall be sentenced to a fine of not more 35 than one thousand dollars; upon a second or subsequent conviction there- 36 of shall be sentenced to a fine of not less than one thousand dollars 37 nor more than five thousand dollars. Each violation of this article 38 shall be deemed a separate offense. 39 § 447-n. Judicial review. The action of the secretary in suspending, 40 revoking, or refusing to issue or renew a license, or imposing an order 41 directing the cessation of unlicensed activity or imposing a fine or 42 reprimand may be reviewed by the supreme court in the manner provided by 43 article seventy-eight of the civil practice law and rules. 44 § 447-o. Severability. In the event it is determined by a court of 45 competent jurisdiction that any phrase, clause, part, subdivision, para- 46 graph or section, or any of the provisions of this article, is unconsti- 47 tutional or otherwise invalid or inoperative, such determination shall 48 not affect the validity or effect of the remaining provisions of this 49 article. 50 § 2. This act shall take effect immediately.