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Article 12A - NY Vehicle and Traffic Law

MOTOR VEHICLE REPAIR SHOP REGISTRATION ACT

Section Description
398.Title.
398-a.Statement of purpose.
398-b.Definitions.
398-c.Registration required; application; fees and issuance of certificate of registration.
398-d.Motor vehicle repair shop requirements.
398-e.Suspension, revocation or refusal to issue registration; civil penalty; restitution; surrender of certificate of registration.
398-f.Hearings; review board; appeals; judicial review.
398-g.Powers of the commissioner.
398-h.Separability clause.
398-i.Unregistered operation; procedures and penalties.
398-k.Improper display of signs.
S 398. Title.  This  act  shall  be known as the "Motor Vehicle Repair
  Shop Registration Act."

 S 398-a. Statement  of  purpose.  The  purposes of this article are to
  further highway safety by promoting the proper and efficient  repair  of
  malfunctioning  or  disabled motor vehicles and to protect the consumers
  of this state from dishonest, deceptive and fraudulent practices in  the
  repair  of  such  motor vehicles. These purposes will be accomplished by
  the enactment of legislation which require  the  registration  of  those
  engaged  in  the  business of repairing malfunctioning or disabled motor
  vehicles and to exclude from that business those persons who  engage  in
  dishonest  or fraudulent practice or who otherwise demonstrate unfitness
  for that business. That further, the  purpose  of  this  article  is  to
  protect  the  motoring public from improper repairs made to its vehicles
  to set standards for quality repairs to be made to  motor  vehicles  for
  fair  and reasonable fees and to eliminate unqualified automotive repair
  shops  from  engaging  in  the  business   of   automotive   repair   to
  malfunctioning or disabled vehicles.

 S 398-b. Definitions.  1.  For  the purposes of this article, the term
  "motor vehicle" shall mean motor vehicles  as  defined  by  section  one
  hundred  twenty-five  and  trailers  as  defined  by section one hundred
  fifty-six of this chapter.
    2. As used in this article the term "motor vehicle repair shop"  means
  any  person who, for compensation, is wholly or partially engaged in the
  business of  repairing  or  diagnosing  motor  vehicle  malfunctions  or
  repairing  motor  vehicle bodies, fenders or other components damaged by
  accident or otherwise, except that such term does not include:
    (a) an employee of a motor vehicle repair  shop  who  engages  in  the
  business of repairing motor vehicles solely by reason of his employment;
    (b)  any person who is solely engaged in the business of repairing the
  motor vehicles of a single commercial or industrial establishment, or of
  the federal, state or a local government or any agency thereof; or
    (c) any person whose activities consist solely  of  fueling,  changing
  oil,  water, batteries or tires, replacing fan belts, air filters or oil
  filters, installing windshield wiper blades  or  light  bulbs,  or  such
  other  minor repair and servicing functions as the commissioner shall by
  rule prescribe; or
    (d) any person solely engaged in the business  of  repairing  farm  or
  road   building   machines,  or  such  other  utility  vehicles  as  the
  commissioner may by regulation designate.
    The term "motor vehicle repair shop"  shall  also  include  any  shop,
  drive-in station, or garage operated by any person, firm, corporation or
  association  at  which  motor vehicles are inspected for the purposes of
  appraising, evaluating or  estimating  the  extent  or  value  of  motor
  vehicle damage or the necessity or cost of motor vehicle repairs.

 S 398-c. Registration  required;  application;  fees  and  issuance of
  certificate of registration. 1. Registration required. On and after  the
  first  day  of  November, nineteen hundred seventy-five, no person shall
  operate, or cause to have operated, a motor vehicle repair shop,  unless
  such  motor  vehicle  repair  shop  is registered in accordance with the
  provisions of this article and unless  such  registration  is  currently
  valid.  The commissioner may request the attorney general to commence an
  action to enjoin the operation of  any  motor  vehicle  repair  shop  in
  violation  of this subdivision. A violation of this subdivision shall be
  heard and determined and shall be subject to penalties  as  provided  in
  section three hundred ninety-eight-i of this chapter.
    2. Application. An application for a certificate of registration under
  this  section  shall  be  filed  with the commissioner, in such form and
  detail as the commissioner shall prescribe, setting forth:
    (a) the name and  the  residence  address  of  the  applicant;  if  an
  individual,  the  name  under which he intends to conduct business; if a
  co-partnership, the name and residence address of each  member  thereof,
  and  the  name  under  which  the  business  is  to  be  conducted; if a
  corporation where stock is not sold to the public on a stock exchange or
  over-the-counter market, the name  of  the  corporation,  the  name  and
  residence address of each of the officers, directors and stockholders of
  the  corporation  holding more than ten percent of the outstanding stock
  and the name under which the business is to be  conducted  if  different
  from  the  name of the corporation; if a corporation whose stock is sold
  to the public on a stock exchange or over-the-counter market,  the  name
  and  business  address  of  the  corporation,  the  name under which the
  business is to be conducted if different from the corporate name  and  a
  separate statement that the corporation is either registered in New York
  or is authorized to do business in this state.
    (a-1) appropriate certification or documentation from the municipality
  where the repair shop is located that the facility is in compliance with
  applicable   zoning  and  planning  regulations,  fire  regulations  and
  building codes. It shall be  the  responsibility  of  the  applicant  to
  provide  such  documentation  for the commissioner. The commissioner may
  waive this requirement for applicants from municipalities  without  such
  codes or regulations.
    (b)  the place or places, including the complete address or addresses,
  where the business is to be conducted.
    (c) on and  after  January  first,  nineteen  hundred  ninety-one,  an
  indication   as   to   whether  the  applicant  services  motor  vehicle
  air-conditioning systems and, if so, whether the applicant has purchased
  approved motor vehicle refrigerant recycling equipment or approved motor
  vehicle refrigerant recapturing equipment  in  accordance  with  section
  38-0107  of  the environmental conservation law. Applicants who indicate
  that they have purchased approved motor  vehicle  refrigerant  recycling
  equipment   must   submit   along   with   their  application  either  a
  manufacturer's certificate issued upon purchase or an invoice with proof
  of payment. All such documents shall contain the name and address of the
  repair shop and manufacturer, the date purchased, and the serial numbers
  of the units acquired.
    (d)  such  further  information  as  the  commissioner  may  by   rule
  prescribe.
    The  commissioner may require the applicant to appear at such time and
  place as may be designated by the commissioner for examination to enable
  him to determine the accuracy of the facts  set  forth  in  the  written
  application,  either  for initial registration or renewal thereof. Where
  the business is  conducted  under  franchise,  lease  or  other  similar
  arrangement,  the  commissioner,  in  his  discretion,  may  require the
  application to be submitted by the franchise  holder,  lessee  or  other
  person   actually   responsible   for  conducting  the  business.  Every
  application under  this  section  shall  be  affirmed  as  true  by  the
  applicant.
    3. Fees and issuance of certificate of registration.
    (a)  Every original application shall be accompanied by an application
  fee of ten  dollars,  which  shall  in  no  event  be  refunded.  If  an
  application  is  approved  by  the  commissioner,  upon  payment  by the
  applicant of an additional fee of one hundred  fifty  dollars  for  each
  place  of  business,  the  applicant  shall  be granted a certificate of
  registration  for  each  place  of  business,   which   certificate   or
  certificates  shall be valid for a period of two years. The commissioner
  may, however, in his discretion, issue such certificates of registration
  on a staggered expiration basis, in  which  event  the  fees  set  forth
  herein  shall be prorated on a monthly basis. In the event a certificate
  of registration is issued on a  staggered  expiration  basis,  it  shall
  expire  on  the  date  fixed  by  the commissioner. The biennial fee for
  renewal of any certificate  of  registration  issued  pursuant  to  this
  section shall be one hundred fifty dollars. The commissioner shall issue
  a  certificate  of  registration  to  each  applicant  pursuant  to  the
  provisions of this article, which  certificate  shall  be  conspicuously
  displayed  in  the  place  of  business of the registrant for which such
  registration is issued. In the case of loss, mutilation  or  destruction
  of   a   certificate   of  registration,  the  commissioner  shall  upon
  application issue a duplicate certificate  thereof  upon  proof  of  the
  facts.
    (b)  If  a  certificate  of  registration  under this section shall be
  issued in the names of two or more persons  as  partners  and  a  change
  occurs  in  the  membership  of  such  partnership,  the  certificate of
  registration shall not expire thereupon  so  long  as  any  one  of  the
  persons  named  in  such  certificate  is a member of the partnership or
  carries on the business of the partnership as surviving  member  of  the
  partnership; provided, however, that when any such change occurs and the
  certificate  of  registration does not expire, the partners or surviving
  member after such change shall forthwith file with the commissioner  (i)
  a   statement  regarding  the  change  in  such  form  and  giving  such
  information as the commissioner  shall  require  or,  where  the  change
  involves  the  addition  of  one  or  more  new  partners,  (ii)  a  new
  application as provided in subdivision two of  this  section.  Such  new
  certificate  of  registration shall expire on the expiration date of the
  one replaced.
    (c) If a certificate of  registration  under  this  section  shall  be
  issued  and,  subsequent  thereto, the business name of any such shop is
  changed, or in the event that the owners of a business incorporate  said
  business  with  no change in the actual ownership and operation thereof,
  such owner or owners thereof shall forthwith file with the  commissioner
  a  statement  regarding  the  change  of name in such form and with such
  information as the commissioner shall require.
    (d) Fees assessed under this section shall be paid to the commissioner
  for deposit to the general fund.
    4. If an individual owner of a  registered  repair  shop  dies  or  is
  adjudged  mentally  incompetent,  his  executor  or administrator or his
  committee may carry on the  business  by  filing  an  amendment  to  the
  application  for registration. Every corporation whose stock is not sold
  to the public on a stock exchange or over-the-counter market shall  file
  an  amendment to its application for registration if there is any change
  in its officers, stockholders who hold more  than  ten  percent  of  the
  outstanding  shares,  or  directors.  Every  repair  shop  shall file an
  amendment  to  its  application  for  registration  if  it  changes  its
  location.  Every such amendment shall be filed within thirty days of the
  event.

 S 398-d. Motor vehicle repair shop requirements. 1. All work done by a
  motor  vehicle  repair  shop  shall  be recorded on an invoice and shall
  describe all service work done and parts supplied. If any used parts are
  supplied, the invoice shall clearly state that fact.  If  any  component
  system  installed  is composed of new and used parts, such invoice shall
  clearly state that fact. If any body parts are  supplied  to  a  vehicle
  with  a  gross vehicle weight not in excess of eighteen thousand pounds,
  the invoice shall clearly state whether such parts were manufactured  as
  original  equipment  parts  for  the  vehicle,  or  were manufactured as
  non-original replacement parts or  are  used  parts.  One  copy  of  the
  invoice shall be given to the customer and one copy shall be retained by
  the  motor  vehicle  repair  shop. For the purposes of insuring that the
  repairs described  on  the  work  invoice  have  been  performed,  every
  customer  and  his  representative  or  a representative of an insurance
  company where such company has paid or is liable  to  pay  a  claim  for
  damage  to  such  customer's motor vehicle shall have a right to inspect
  the repaired motor vehicle. Such right of inspection shall also  include
  the  right  to inspect all replaced parts and components thereof, except
  warranty  or  exchange  parts.  Provided,  however,  the  exception  for
  warranty  or exchange parts from the right of inspection shall not apply
  to replacement inflatable restraint systems. Any such inspection  by  an
  insurer  shall  be  made in a manner consistent with the requirements of
  sections two thousand six hundred one and three  thousand  four  hundred
  eleven  of  the  insurance law. The motor vehicle repair shop shall make
  available to the customer, upon timely written demand, or for such  work
  authorized  over  the  telephone,  shall keep until the customer's motor
  vehicle is  retrieved,  all  replaced  parts,  components  or  equipment
  excepting  any  parts,  components  or  equipment  normally  sold  on an
  exchange basis or subject to a warranty.
     2. Upon the request of any customer,  a  motor  vehicle  repair  shop
  shall make an estimate in writing of the parts and labor necessary for a
  specific  job  and  shall  not charge for work done or parts supplied in
  excess of the estimate without the consent of such customer.  The  motor
  vehicle  repair shop may charge a reasonable fee for making an estimate.
  If any body parts are included in the estimate  for  a  vehicle  with  a
  gross  vehicle  weight  not  in  excess of eighteen thousand pounds, the
  estimate shall clearly state whether such  parts  were  manufactured  as
  original  equipment  parts  for  the  vehicle,  or  were manufactured as
  non-original replacement parts or are used parts.
    3. Each motor vehicle repair shop shall maintain such records  as  are
  required  by  the regulations of the commissioner and such records shall
  be available for inspection by the commissioner or his  designee  during
  all  business  hours. Where a motor vehicle repair shop changes its name
  or location, notification thereof shall be given to the commissioner not
  more than ten days therefrom.
    4. (a) Every motor vehicle repair shop shall display in a  conspicuous
  place  in  such  shop  a  sign  stating: PURSUANT TO SECTION 2610 OF THE
  INSURANCE LAW AN INSURANCE COMPANY MAY NOT REQUIRE THAT REPAIRS BE  MADE
  TO  A  MOTOR  VEHICLE  IN  A PARTICULAR PLACE OR REPAIR SHOP. YOU HAVE A
  RIGHT TO HAVE YOUR AUTOMOBILE REPAIRED IN THE SHOP OF YOUR CHOICE.
    (b) Such  sign  shall  be  made  of  a  durable  material  capable  of
  withstanding  outdoor  climatic  conditions,  with  the letters being at
  least two inches high and having a stroke of at least one-half inch. The
  letters and background shall be of contrasting colors.
    5. Every person who shall write  any  auto  body  repair  estimate  on
  behalf  of  a motor vehicle repair shop, whether registered or not, must
  hold a  valid  estimator's  license  for  such  purpose  issued  by  the
  commissioner.  The form and manner of applying for such license shall be
  prescribed  by  regulation  to  be  promulgated by the commissioner. The
  commissioner shall in the commissioner's discretion  establish  criteria
  for  the  issuing  of  such  license.  Each  application for the license
  required  hereunder  shall  be  accompanied  by  an  application  fee of
  twenty-five  dollars  which  shall  in  no  event  be  refunded.  If  an
  application  is  approved  by  the  commissioner,  upon  payment  by the
  applicant of the additional  fee  of  one  hundred  fifty  dollars,  the
  applicant  shall  be  granted  such  license  which shall be valid for a
  period of three years. The renewal fee for any license  issued  pursuant
  to this subdivision shall be one hundred fifty dollars.
    5-a.  All  the  provisions  of section three hundred ninety-eight-f of
  article twelve-A of this  chapter  shall  apply  to  the  provisions  of
  subdivision  five  of  this section with the same force and effect as if
  the language of those provisions had  been  incorporated  in  full  into
  subdivision  five of this section and had expressly referred to the term
  collision estimator licensee,  except  that  the  term  "certificate  of
  registration"  shall  be  read  as  "estimator's  license"  and the term
  "registrant" as "licensee".
    6. (a) In addition to the requirements  of  subdivision  one  of  this
  section,  if  an  inflatable  restraint  system  is  replaced, the motor
  vehicle repair shop shall state on the repair invoice the name  and  tax
  identification  number  from  whom such replacement inflatable restraint
  system was purchased. The vehicle repair shop shall, in the case of  any
  salvaged inflatable restraint system installed, also state on the repair
  invoice  the  vehicle  dismantler's  registration  number,  the  vehicle
  identification number of the vehicle from which the inflatable restraint
  system was salvaged and the  part  number  of  the  salvaged  inflatable
  restraint  system.  The insurer and the consumer shall receive a copy of
  the purchase invoice for such replacement inflatable restraint systems.
    (b) An inflatable system which has been activated in a crash or stolen
  shall be  replaced  only  with  an  inflatable  restraint  system  newly
  manufactured for first-time use.
    (c)   Notwithstanding   the   provisions  of  paragraph  (b)  of  this
  subdivision, an inflatable restraint  system  may  be  replaced  by  one
  salvaged and sold by a vehicle dismantler registered pursuant to section
  four  hundred  fifteen-a  of  this  chapter, provided, however, that the
  salvaged inflatable restraint system has been sold  in  accordance  with
  the provisions of section four hundred fifteen-c of this chapter.
    (d)  Notwithstanding  any  other  provisions of law to the contrary, a
  consumer has the right to seek installation  of  a  salvaged  inflatable
  restraint  system  as  provided  in  paragraph  (c) of this subdivision,
  provided however, nothing  shall  require  any  facility  to  install  a
  salvaged  inflatable restraint system. A salvage installation shall only
  be done with the specific authorization of  the  customer.  The  invoice
  must  prominently state, "Salvage inflatable restraint system." No other
  terms such as "used" or "as is" shall be used. The invoice must  clearly
  state  the  terms  of  the warranty or guarantee, if given, or state "No
  warranty or guarantee given." A  salvaged  inflatable  restraint  system
  must  be  of  the exact same type as the unit with which the vehicle was
  originally equipped.
    (e) On and after March first, nineteen hundred ninety-nine, in no case
  shall any inflatable restraint system be replaced  with  anything  other
  than  a  newly  manufactured  inflatable  restraint system or a salvaged
  inflatable restraint system certified according to standards established
  by a nationally recognized testing, engineering  and  research  body  as
  provided  for  in  subdivision  two of section four hundred fifteen-c of
  this chapter.
     7. Each motor vehicle repair shop which either  removes  or  installs
  inflatable  restraint  systems  shall maintain a log book containing the
  following information: (a) the date of  installation,  (b)  the  vehicle
  identification  number,  license plate number, and make and model of the
  repaired vehicle, (c) the replacement inflatable restraint system's part
  number,  (d)  in the case of a salvaged inflatable restraint system, (1)
  the  vehicle  identification  number  of  the  vehicle  from  which  the
  replacement  inflatable restraint system was salvaged, and (2) the name,
  tax identification number, and registration  number  of  the  automobile
  dismantler  from  whom  such  salvaged  inflatable  restraint system was
  purchased, (e) in the case of a  new  replacement  inflatable  restraint
  system,  the  name  and  tax identification number of the supplier. Such
  records shall be maintained in a  manner  and  form  prescribed  by  the
  commissioner.  Upon  request  of  an agent of the commissioner or of any
  police officer and during its regular  and  usual  business  hours,  the
  motor  vehicle  repair  shop  shall produce such records and permit said
  agent or police officer to examine them.

 S 398-e. Suspension,  revocation  or  refusal  to  issue registration;
  civil penalty; restitution; surrender of certificate of registration. 1.
  Suspension, revocation or refusal to issue registration or license.  The
  commissioner,  or  any person deputized by him, may deny the application
  of any person for a certificate of registration or  estimator's  license
  and  may  suspend or revoke the registration of any motor vehicle repair
  shop or any estimator's license  issued  pursuant  to  this  article  or
  refuse  to issue a renewal thereof if he determines that such applicant,
  registrant or licensee:
    (a) has made a material false statement or concealed a  material  fact
  in connection with his application;
    (b)  was  the  former  holder  of a certificate of registration issued
  hereunder which was revoked or suspended by the commissioner;
    (c) was, or that any officer, director, partner or stockholder holding
  more than ten percent of the outstanding stock was an officer, director,
  partner or stockholder holding more than ten percent of the  outstanding
  stock in a corporation or partnership, as the case may be, which was the
  former  holder  of  a certificate of registration issued hereunder which
  was revoked or suspended by the commissioner;
    (d) has failed to furnish satisfactory  evidence  of  good  character,
  reputation and fitness;
    (e) does not have a place of business as required by this article;
    (f)  is not the true owner of the repair shop, except in the case of a
  franchise;
    (g) has been guilty of fraud or fraudulent or deceptive practices;
    (h) has been grossly negligent on  two  or  more  occasions  within  a
  period  of  two  years  in  the  performance of any repair or adjustment
  covered by this article, or has  grossly  overcharged  on  two  or  more
  occasions within a period of two years for such repair or adjustment;
    (i)  has  wilfully failed to comply with any of the provisions of this
  article or the rules and regulations  of  the  commissioner  promulgated
  hereunder;
    (j) has knowingly issued a false or misleading estimate; or
    (k)  has  engaged in a course of conduct which unreasonably impedes or
  delays a consumer's right to a fair recovery pursuant to the  provisions
  of  an  automobile  insurance  policy,  the insurance law or regulations
  issued  by  the  superintendent  of  financial  services  governing  the
  evaluation and adjustments of claims.
    For  the  purposes  of  paragraphs  (g), (h), (i), (j) and (k) of this
  subdivision, it shall be presumed that the actions of any employee of  a
  motor vehicle repair shop shall be attributable to, and deemed to be the
  actions of, such motor vehicle repair shop.
    2. Civil penalty; suspension for failure to pay. (a) The commissioner,
  or  any  person deputized by him, may, by order, require a registrant or
  an unregistered repair shop to pay to the people of this state a penalty
  as hereinafter provided. Such penalty may be imposed in addition  to  or
  in  lieu  of revoking or suspending the certificate of registration of a
  registrant in accordance with the provisions of this article, or such  a
  penalty  may  be  imposed  upon  a  finding  that  a  registrant  or  an
  unregistered  repair  shop:  (i)  has  been  grossly  negligent  in  the
  performance of any repair or adjustment covered by this article; or (ii)
  has grossly overcharged for such repair or adjustment.
    (b) Such penalty for a first violation shall be in a sum not exceeding
  seven  hundred  fifty  dollars  for  each  violation  found to have been
  committed, and for a second or subsequent violation not arising  out  of
  the same incident both of which were committed within a period of thirty
  months,  be  in  a  sum  of  not more than one thousand dollars for each
  violation found to have been committed; provided, however,  the  penalty
  for  each  and any violation of paragraph (g) of subdivision one of this
  section found to have been committed shall be no less than three hundred
  and fifty dollars and no more than one thousand dollars, except that  if
  a  finding of financial loss has been made pursuant to subdivision three
  of this section, the amount of such penalty  may  be  increased  by  the
  amount of financial loss so found.
    (c) Upon the failure of a registrant or an unregistered repair shop to
  pay such penalty, or, where the order so permits, to make restitution as
  provided  in subdivision three of this section, within thirty days after
  the mailing of such order, postage prepaid, registered or certified, and
  addressed to the last known place of  business  of  such  registrant  or
  unregistered  repair  shop,  unless  such order is stayed as provided in
  subdivision three  of  section  three  hundred  ninety-eight-f  of  this
  chapter,  the commissioner may revoke the certificate of registration of
  such registrant or may suspend the  same  for  such  period  as  he  may
  determine  or  may  seek  to  recover  unpaid civil penalties in a civil
  action in the name of the commissioner. Civil penalties  assessed  under
  this  subdivision shall be paid to the commissioner for deposit into the
  state treasury.
    (d) In addition, as an alternative to such civil action  and  provided
  that  no  proceeding  for  judicial review shall then be pending and the
  time  for  initiation  of  such  proceeding  shall  have  expired,   the
  commissioner  may  file with the county clerk of the county in which the
  registrant is located a final order of the commissioner  containing  the
  amount  of  the  penalty  assessed. The filing of such final order shall
  have the full force and effect of a judgment duly docketed in the office
  of such clerk and may be enforced in the same manner and with  the  same
  effect  as  that provided by law in respect to executions issued against
  property upon judgments of a court of record.
    3. Restitution; assessment. (a) Upon a determination that a registrant
  or an unregistered repair shop has done or failed  to  do  any  act  for
  which  suspension  of  the  registrant's registration or a civil penalty
  against the registrant or unregistered repair shop could be imposed, the
  person making such determination may make a finding of financial loss to
  any complainant or  complainants  resulting  from  the  actions  of  the
  registrant  or  unregistered repair shop. The person making such finding
  may provide that if the registrant or  unregistered  repair  shop  makes
  restitution to the complainant or complainants for the amount or amounts
  so found, that payment of such restitution may be substituted in lieu of
  any  suspension or civil penalty, or a specified portion thereof imposed
  upon the registrant or unregistered repair shop. However, a  finding  of
  financial  loss  shall  only  be  made  if the complainant (i) agrees to
  accept the amount so found, if offered by the registrant or unregistered
  repair shop, and (ii) is not a party to any litigation which is  pending
  or  which  has  gone  to  judgment in relation to the same matter in any
  civil court.
    (b) The amount of financial loss which may be found  and  proposed  as
  restitution  shall  be  limited  to  an  amount  necessary to repair the
  vehicle or vehicles in question and/or any amount  of  overcharge  which
  may be found. Neither punitive nor incidental damages may be included in
  the finding of financial loss.
    (c) If payment of restitution to the complainant is authorized in lieu
  of  all  or a portion of a suspension or civil penalty, in order for the
  registrant or unregistered repair shop to exercise the  option  to  make
  such payment, such payment must be made by means of a certified check or
  money  order  payable to the complainant or complainants delivered to an
  office of the department as directed by the commissioner  or  his  agent
  within  thirty  days  of  the  date of notice of suspension and/or civil
  penalty. Upon receipt of  such  certified  check  or  money  order,  the
  department shall forward the same to the complainant or complainants. In
  the event that the registrant or unregistered repair shop should fail to
  make  payment  for  restitution within such thirty days, but, at a later
  time, pays such civil penalty, the department  shall  deduct  from  such
  civil  penalty  payment  the  amount assessed for restitution, and shall
  mail a check for such amount to the complainant or complainants.
    (d) If payment of restitution may be substituted in lieu  of  a  civil
  penalty   or   portion  of  a  civil  penalty,  and  the  registrant  or
  unregistered repair shop does not  exercise  the  option  to  make  such
  payment, the civil penalty becomes due as provided in subdivision two of
  this  section  and  the  provisions  of  that  subdivision  relating  to
  suspension of registration and recovery of civil penalties shall apply.
    (e) Any payment made in compliance with such a  finding  of  financial
  loss  shall  not  preclude  any civil action which may be brought by the
  complainant, registrant  or  unregistered  repair  shop,  and  any  such
  finding may be considered but shall not be binding upon any court before
  which any such action is brought.
    4.  Surrender  of  certificate of registration. Upon the suspension or
  revocation of a certificate of registration by the commissioner and  the
  issuance of notice thereof, the registrant shall immediately deliver the
  certificate of registration to the commissioner or to any peace officer,
  acting pursuant to his special duties, or police officer directed by the
  commissioner to secure possession thereof, or agent of the commissioner,
  displaying  authorization to act in such capacity along with a certified
  copy of the order revoking or  suspending  such  registration,  and  the
  failure   to  so  deliver  the  certificate  within  thirty  days  shall
  constitute a traffic infraction and shall be punishable  in  the  manner
  provided in section eighteen hundred of this chapter.

 S  398-f.  Hearings;  review  board;  appeals;  judicial  review.   1.
  Hearings. (a)  Upon the denial of an application for  a  certificate  of
  registration,  the  applicant  shall,  upon  written request made within
  thirty days after the applicant is notified of such denial, be  entitled
  to  a hearing before an officer or employee of the department designated
  for such purpose by the commissioner.
    (b)  No certificate of registration shall  be  suspended  or  revoked,
  penalty   imposed   or   determination  of  gross  negligence  or  gross
  overcharging  made  as  provided  for  pursuant  to  paragraph  (h)   of
  subdivision one of section three hundred ninety-eight-e of this article,
  until such registrant shall have been given the opportunity to be heard,
  upon  written notice to the registrant, before an officer or employee of
  the  department  designated  for  such  purpose  by  the   commissioner,
  provided,  however,  that  where  a  notice  of  hearing  is mailed to a
  registrant at the address shown in the records  of  the  department  and
  such  registrant  fails  to  attend  such  hearing, the commissioner may
  suspend such registration pending the  registrants  attendance  at  such
  hearing.   Requests for adjournment of such hearings shall be granted in
  accordance  with  regulations  promulgated  by  the  commissioner.     A
  suspension pending attendance at a hearing shall not be appealable.
    (c)    The  commissioner  acting  by  such  officer or employee in the
  department as he may designate, shall have the  power  to  subpoena  and
  bring  before  such officer or employee so designated any person in this
  state, or document, record or other relevant evidence, and administer an
  oath to and  take  the  testimony  of  any  such  person  or  cause  his
  deposition to be taken.  A subpoena issued pursuant to this action shall
  be regulated by the civil practice law and rules.
    (d)    In  the  event  a  certificate of registration is revoked or an
  application is denied, no such  certificate  shall  be  issued  to  such
  former  registrant or applicant for at least six months, nor thereafter,
  except in the discretion of the commissioner.
    2. Review board. The commissioner  shall  establish  a  review  board.
  Such  board  shall  consist  of  persons  who  have  been engaged in the
  automotive repair shop business for at least five years representing the
  automobile repair shop industry, persons who shall be laymen  having  no
  association  with  the  automotive  repair  shop  industry  representing
  consumers, and persons who are attorneys admitted to  practice  in  this
  state  and  who  have  no  interest  in  or  represent as an attorney an
  automotive repair shop. Members of the review board shall  be  appointed
  insofar  as  is  practicable  to provide for representation of different
  geographic areas of the state, and shall serve in no other  capacity  in
  the  department  of  motor  vehicles. The number of persons appointed to
  such review board shall be determined by the commissioner and  shall  be
  appointed to serve at his pleasure.  Three persons, one of whom shall be
  automotive  repair  shop  industry representatives, one of whom shall be
  consumer representatives, and one of whom shall be an attorney appointed
  pursuant to the provisions of this subdivision, shall as a panel  review
  each  appeal  from a determination of the hearing officer. Such attorney
  shall serve as the chairman of such  panel  with  respect  to  any  such
  review.    Members of the review board shall be entitled to their actual
  and necessary expenses incurred  in  the  performance  of  their  duties
  thereunder,  and shall be entitled to a per diem allowance as determined
  by the commissioner and approved by the director of the division of  the
  budget  not  to exceed one hundred dollars except that those members who
  serve as the chairman of a panel at appeal proceedings may  be  entitled
  to  a per diem allowance in an amount so determined and approved but not
  exceeding one hundred fifty dollars.
    3.   Appeals. (a) The review  board  will  review  and  determine  all
  appeals  filed  pursuant  to this article.  Such determination may be to
  affirm, reverse or modify  the  initial  determination  of  the  hearing
  officer,  or  to  remand  the  case  for  a further hearing to determine
  additional facts.  Any review by such board shall be based solely on the
  record upon which the initial determination is made and upon any written
  brief  which  may  be  submitted  by  or  on  behalf of the applicant or
  registrant.
    (b) (1)   Whenever a  certificate  of  registration  is  suspended  or
  revoked,  an  application for such registration denied, determination of
  gross negligence or gross overcharging made, the sealing of  a  premises
  ordered or penalty imposed by the commissioner pursuant to this article,
  except where such action is required by statute based upon a conviction,
  the  registrant,  applicant,  or  owner  of the premises as such term is
  defined in paragraph (a) of subdivision five-a of section three  hundred
  ninety-eight-i of this article may appeal such determination pursuant to
  the   provisions  of  this  article  and  such  regulations  as  may  be
  promulgated by the commissioner.
    (2) No appeal shall be reviewed unless it is  submitted  within  sixty
  days  after  written notice of the determination appealed from is mailed
  to the registrant or applicant.
    (3)  Any person desiring to appeal pursuant to this article  shall  do
  so  in  a  form and manner as provided by regulations promulgated by the
  commissioner. The transcript of any hearing will only be reviewed if  it
  is  submitted  by the appellant who shall bear the expense of furnishing
  such transcript.
    (4)  The fee for filing an appeal shall be ten  dollars.    No  appeal
  shall  be  deemed  filed  or  submitted unless any required fee has been
  paid.
    (5) The submission of a written request to file such an  appeal  shall
  stay  the operation of the initial determination until after a review is
  had and a determination has been made; provided, however,  that  failure
  to  timely  submit  such  appeal  and comply with the provisions of this
  subdivision shall remove the stay  imposed  by  this  paragraph.    Such
  review  shall be made and decided as expeditiously as possible; provided
  that an appeal of  an  order  directing  the  sealing  of  the  premises
  pursuant  to  subdivision five-a of section three hundred ninety-eight-i
  of this article shall, to the extent possible, be  given  priority  over
  all other appeals filed pursuant to this article.
    (c)    Whenever  the  same  facts give rise to a hearing involving any
  other license or registration issued by  the  commissioner,  a  combined
  hearing   may   be  held.    If  the  registrant  appeals  only  from  a
  determination made with respect to  his  repair  shop  registration,  he
  shall  be  entitled  to  a review as provided in subdivision one of this
  section; however, if he appeals from any determination or determinations
  made with respect to any other license or registration,  as  well  as  a
  determination  with respect to his repair shop registration, the appeals
  procedure established in  article  three-A  of  this  chapter  shall  be
  followed  in  lieu  of the procedure established in subdivision three of
  this section.
    4. Judicial review. The determination of the  review  board  shall  be
  subject to review by the supreme court in the manner provided in article
  seventy-eight of the civil practice law and rules.

 S 398-g. Powers  of the commissioner. 1. In addition to the powers and
  duties specified elsewhere in this article, the commissioner,  upon  any
  complaint  or  upon his own initiative, shall have the power to make and
  conduct such  investigations  as  he  deems  proper  to  effectuate  the
  purposes  of  this  article.  The commissioner may establish, by rule or
  regulation, criteria upon  which  the  necessity  for  investigation  of
  complaints  shall  be  determined.  Such criteria may include but not be
  limited to the alleged financial loss to the complainant, the indication
  of a recurring  incidence  of  fraud  or  deceptive  practices,  or  the
  essential  nature  of  the service provided to the safe operation of the
  vehicle. The commissioner shall also have the power  to  assist  in  the
  settlement of disputes between complainants and registrants. In any such
  case  in  which a settlement is reached, a report of the facts, shall be
  included in the registrant's record. The  provisions  of  section  three
  hundred   ninety-eight-f   relating   to   the  required  attendance  of
  registrants and the power to subpoena shall apply to  any  investigation
  conducted pursuant to this section.
    2.  The  commissioner shall prescribe such rules and regulations as he
  shall  deem  necessary  to  effectuate  the  purposes  of  this  article
  including  but  not  limited  to, standards for personnel, equipment and
  facilities.

 S 398-h. Separability clause. If any part or provision of this article
  or  the  application  thereof to any person or circumstances be adjudged
  invalid by any court of competent jurisdiction, such judgment  shall  be
  confined in its operation to the part, provision or application directly
  involved  in  the  controversy  in  which  such judgment shall have been
  rendered and shall not affect or impair the validity of the remainder of
  this  article  or  the  application  thereof   to   other   persons   or
  circumstances.

 S  398-i. Unregistered  operation;  procedures  and penalties. 1. The
  commissioner or any person deputized by him shall hear and determine any
  allegation that a person  has  operated  a  repair  shop  without  being
  registered  as  required  by  subdivision  one  of section three hundred
  ninety-eight-c of this chapter. Upon a determination that a  person  has
  so  operated,  the  commissioner or person deputized by him shall assess
  civil penalties as provided  in  subdivisions  two  and  three  of  this
  section.
    2.  Except as provided in subdivision three, any person who operates a
  repair shop without being registered shall be required  to  pay  to  the
  people of this state a civil penalty in the sum of one thousand dollars.
  However, any such person against whom such penalty has been assessed may
  avoid  all  but  five  hundred  dollars  of  such penalty by obtaining a
  registration as required by this article, provided that application  for
  such registration is made not more than ten days after the imposition of
  such penalty.
    3.  (a)  Any  person  who operates a repair shop while his repair shop
  registration is revoked or suspended, shall pay to the  people  of  this
  state  a  civil  penalty  in the sum of one thousand dollars. Such civil
  penalty may not be avoided.
    (b) Any person who operates a repair shop without being registered  as
  required  by  subdivision one of section three hundred ninety-eight-c of
  this chapter who  has  previously  had  a  civil  penalty  assessed  for
  unregistered  operation  shall  pay  to the people of this state a civil
  penalty in the sum of one thousand dollars.  Such civil penalty may  not
  be avoided.
    4.  (a)  If  it is determined that a person has operated a repair shop
  without being registered as required by this article, such determination
  may be appealed to the review  board  established  pursuant  to  section
  three  hundred ninety-eight-f of this chapter. The procedure established
  in such section shall apply to such  appeals  provided  that  no  appeal
  shall  be  accepted  or  determined by the review board unless the civil
  penalty assessed against such person has  been  paid  as  prescribed  in
  subdivision two of this section.
    (b)  The  requirement  that the civil penalty be paid before an appeal
  can be accepted or determined by the review board shall not apply to  an
  appeal   by  a  repair  shop  from  a  determination  made  pursuant  to
  subdivision three of this section.
    (c)  If the review board finds that the person has not been  operating
  a repair shop without being registered, any civil penalty which has been
  paid  shall  be  refunded, any premises ordered to be sealed pursuant to
  subdivision five-a of this section shall be unsealed, and if such  board
  determines  that  registration  as  a  repair shop is not required and a
  registration has been obtained to avoid the civil penalty assessed,  the
  registration  shall  be cancelled and, notwithstanding the provisions of
  paragraph  (a)  of  subdivision   three   of   section   three   hundred
  ninety-eight-c  of  this  chapter,  all  fees paid for such registration
  shall be refunded.
    5. Civil penalties assessed under this section shall be  paid  to  the
  commissioner  for  deposit  into  the  state  treasury, and unpaid civil
  penalties may be recovered by the commissioner in a civil action in  the
  name  of  the commissioner. In addition, as an alternative to such civil
  action and provided that no proceeding for judicial review shall then be
  pending and the time  for  initiation  of  such  proceeding  shall  have
  expired,  the  commissioner may file with the county clerk of the county
  in which the registrant is located a final  order  of  the  commissioner
  containing  the amount of the penalty assessed. The filing of such final
  order shall have the full force and effect of a judgment  duly  docketed
  in  the  office of such clerk and may be enforced in the same manner and
  with the same effect as that provided by law in  respect  to  executions
  issued against property upon judgments of a court of record.
    5-a.  Sealing  of the premises. (a) In addition to any other penalties
  set forth in this article, the commissioner, after notice to  the  owner
  of  the  premises and the owner of the motor vehicle repair shop and the
  opportunity for a hearing, shall be authorized to
    (i) order the sealing of  the  premises  upon  which  any  person  has
  operated  a motor vehicle repair shop without being registered, provided
  that such premises is primarily used for  such  activity  and  provided,
  further, that the commissioner shall not seal any dwelling unit or other
  space lawfully used solely for residential purposes;
    (ii)  order that any devices, items or goods utilized in the operation
  of a motor vehicle repair shop and relating to such activity for which a
  registration for  operation  is  required  but  has  not  been  obtained
  pursuant  to  the provisions of this article shall be removed, sealed or
  otherwise made inoperable; and
    (iii) order the removal of motor vehicles on the premises to a garage,
  pound or other place of safety. For purposes of this article,  the  term
  "owner  of  the  premises"  shall  mean  the  owner,  lessor,  lessee or
  mortgagee of the building, erection  or  place  wherein  any  person  is
  operating an unregistered motor vehicle repair shop. The person in whose
  name  the  real  estate  affected  by  the orders of the commissioner is
  recorded in the office of the city register or the county clerk, as  the
  case may be, shall be presumed to be the owner thereof.
    (b)  The  lack  of  knowledge  of, acquiescence or participation in or
  responsibility for, the  operation  of  an  unregistered  motor  vehicle
  repair  shop,  on the part of the owner of the premises and/or the owner
  of the motor vehicle repair shop, shall not be a defense by such owners.
    (c) Orders of the commissioner issued pursuant  to  paragraph  (a)  of
  this  subdivision  shall  be  conspicuously  posted at the premises upon
  which unlawful operation occurred.
    (d) An order of the commissioner issued pursuant to paragraph  (a)  of
  this  subdivision  shall be stayed with respect to any person who, prior
  to service of the notice required by such  paragraph,  has  submitted  a
  complete  application,  in  proper form and accompanied by the requisite
  fee, for a certificate of registration to operate a motor vehicle repair
  shop or a renewal thereof, while the application is pending.
    (e) Ten days  after  the  posting  of  an  order  issued  pursuant  to
  paragraph (a) of this subdivision, and upon the written directive of the
  commissioner,  officers  and  employees  of  the  department  and police
  officers of any appropriate law enforcement agency shall  be  authorized
  to act upon and enforce such order. The commissioner may take such steps
  as  are lawful and necessary to prevent the removal from the premises of
  any devices, items, goods or personal property used in the conduct of  a
  motor vehicle repair shop business during such ten day period.
    (f)  (i)  Any devices, items, goods or motor vehicles removed pursuant
  to the provisions of subparagraphs (ii) and (iii) of  paragraph  (a)  of
  this  subdivision  shall  be stored in a garage, pound or other place of
  safety and the owner or other person lawfully entitled to the possession
  of such devices, items, goods or motor  vehicles  may  be  charged  with
  reasonable costs for removal and storage payable prior to the release of
  such devices, items, goods or motor vehicles to such owner or such other
  person.
    (ii)   The  commissioner  shall,  by  first  class  mail,  notify  the
  registered owner of any motor vehicle removed pursuant  to  subparagraph
  (iii)  of paragraph (a) of this subdivision within five business days of
  the removal, of the location of  such  motor  vehicle  and  the  actions
  necessary to recover such motor vehicle.
    (iii)  The  owner  or  other  person  lawfully entitled to reclaim the
  devices, items, goods or motor vehicles removed pursuant to this section
  shall reclaim such devices, items, goods or motor vehicles within ninety
  days of their removal, or such devices, items, goods or  motor  vehicles
  shall be subject to forfeiture upon notice and judicial determination in
  accordance  with the provisions of law. Upon forfeiture the commissioner
  shall, upon a public notice of at least five days, sell  such  forfeited
  devices,  items,  goods  or  motor  vehicles  at  public sale.   The net
  proceeds of such sale, after deduction of the lawful expenses  incurred,
  shall be paid into the general fund.
    (iv)  Lessors  of  devices,  items, goods or personal property removed
  pursuant to the provisions of subparagraph (ii) of paragraph (a) of this
  subdivision  may  reclaim  leased  devices,  items,  goods  or  personal
  property  upon  presentment  of  proof  that the lessor is not otherwise
  involved, directly or indirectly, in the ownership or operation of  such
  motor  vehicle repair shop and that the lessee is in breach of the lease
  or in default of payments, and upon  payment  of  any  reasonable  costs
  imposed  for  the  removal  and storage of such devices, items, goods or
  personal property pursuant to this subdivision.
    (g) The  commissioner  shall  order  any  premises  which  are  sealed
  pursuant to paragraph (a) of this subdivision to be unsealed upon:
    (i) payment of any and all fines, penalties and restitution; and
    (ii)  presentment  of  proof  that  the required registration has been
  obtained for operation of a motor vehicle repair shop on  the  premises,
  or proof satisfactory to the commissioner, submitted by the owner of the
  premises,  that  such  premises  will  not  be used in violation of this
  article.
    (h) In addition to any fines, penalties or actions taken with  respect
  to  a  motor  vehicle  repair  shop and the persons operating, providing
  equipment or otherwise involved in the  operations  of  such  shop,  the
  commissioner  may  also  take  action  with  respect to the owner of the
  premises where such shop has operated or is  operating  as  provided  in
  this paragraph. Upon a finding by the commissioner, after notice and the
  opportunity  for  a  hearing,  that an unregistered motor vehicle repair
  shop has been operated at the same premises  on  two  or  more  separate
  occasions  within  eighteen  months  resulting  in  two or more separate
  determinations by the commissioner of a violation of this  section  with
  respect  to  such premises, and that the owner of the premises knowingly
  allowed such operation, the commissioner may impose upon such  owner  of
  the premises a civil penalty in an amount not to exceed fifteen thousand
  dollars,  or may order the sealing of the premises for not more than one
  hundred eighty days, or both such actions.
    (i) Nothing contained herein  shall  be  construed  to  authorize  the
  commissioner  to  execute  an  order issued pursuant to this subdivision
  without  the  presence  and  assistance  of  a  police  officer  of   an
  appropriate law enforcement agency.
    (j)  Removal  of  the  seal  on  any  premises  sealed pursuant to the
  provisions of this subdivision shall constitute a misdemeanor.
    6. No allegation of unregistered operation as a repair shop  shall  be
  heard  or determined unless notice of such allegation has been mailed to
  such person within two years after the date of the alleged  unregistered
  operation.

 S 398-k. Improper  display of signs.  1. The holder of a repair shop
  registration shall remove or cause to be removed any sign which contains
  the registration number of the station which is visible  to  the  public
  and  which  is  required  to be displayed by this article or regulations
  promulgated thereunder if the registration is revoked  or  suspended  or
  the  repair  shop  is  out  of  business.  If  the  registration is only
  suspended, the holder may cover up the sign instead of removing it.
    2. No person shall permit the display  of  any  sign  required  to  be
  displayed   by   this  article  or  regulations  promulgated  thereunder
  indicating to the public that  an  official  repair  shop  is  operating
  unless  a repair shop registration has been issued to that person and is
  currently valid.

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