PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Amendment of section 170.1 of Title 19 NYCRR.

Security guard registration for bouncers.

To clarify security guard registration requirements for bouncers.

Section 170.1 is amended to read as follows:

170.1 Security guards

(a) A person described in General Business Law, section 89-f(6) is a security guard if he or she principally performs the activities of prevention, deterrence, control or enforcement.

(b) For purposes of this Part:

(1) prevention includes protecting persons and/or property from harm, theft, and other unlawful activity, including response to a security systems alarm;

(2) deterrence includes deterring, observing, detecting, and reporting unlawful or unauthorized activity;

(3) control includes controlling, by street or other patrol service, access to property, including employee personnel, visitors, vehicles and traffic;

(4) enforcement includes enforcing security policies, rules, regulations, and procedures.

(c) Principally performing shall mean:

(1) engaged in the functions set forth in subdivision (b) of this section for more than 50 percent of the person's regularly scheduled work hours. However, those individuals who perform duties within, about, in front of or adjacent to, or in any parking lot provided for patrons of an establishment licensed pursuant to the alcoholic beverage control law for the sale and/or consumption of alcoholic beverages on the premises, for any period of time whatsoever, and who are employed, permitted with or without compensation, or retained as an independent contractor by an on-premises alcoholic beverage licensee to grant or refuse admission, to escort a patron or prospective patron from the establishment licensed pursuant to the alcoholic beverage control law and/or areas under the control of the establishment licensed pursuant to the alcoholic beverage control law, to keep order, to protect persons and/or property from harm and to deter, prevent, terminate and report any unlawful or authorized activity shall be deemed to principally perform security guard functions and shall be required to register as a security guard pursuant to Article 7-A of the General Business Law; or

(2) employed to perform any or all of the above functions for any duration, with the condition of such employment being that he or she is armed with a weapon; or

(3) employed to perform any or all of the above functions for any duration, with the condition of such employment being that he or she wear a military style uniform or insignia, either being indicative of security guard status.

(d) Police officers.

(1) When employed by a security guard company, an off-duty police officer is exempt from the registration, fingerprinting and training provisions of General Business Law, article 7-A. When employed by a security guard company, a retired or former police officer must comply with the registration, fingerprinting and training provisions of General Business Law, article 7-A.

(2) Before employing an off-duty police officer as a security guard, a security guard company licensed pursuant to General Business Law, article 7 shall obtain an employee statement from the off-duty police officer as required by General Business Law, section 81(2); provided, however, the off-duty police officer shall be exempt from the fingerprinting provisions of General Business Law, section 81, subdivisions (3), (4), (5), (6) and (7).

(e) Peace officers. When employed by a security guard company, an off-duty peace officer must comply with the registration and fingerprinting provisions of General Business Law, article 7-A. The peace officer must also comply with the training provisions of General Business Law, section 89-n subject to that section's special exceptions for peace officers.

(f) For the purposes of General Business Law, articles 7 and 7-A, a security guard is considered to be employed by a security guard company if the security guard is not independently licensed as a private investigator or as a watch, guard or patrol agency pursuant to General Business Law, article 7, even if the security guard is treated as an independent contractor by the security guard company for Federal or State tax purposes.

Whitney Clark, Department of State, Division of Licensing Services, 80 South Swan Street, PO Box 22001, Albany, NY 12231, (518) 473-2728, email: [email protected]

Same as above.

45 days after publication of this notice.

1. Statutory authority:

Article 7-A (Security Guard Act) of the General Business Law was enacted as Chapter 336 of the Laws of 1992. Section 89-o, authorizes the Secretary of State to adopt rules and regulations implementing the provisions of Article 7-A in consultation with the Security Guard Advisory Council. Section 89-o, further states: "[s]uch rules and regulations shall include criteria for determining whether a person is a security guard or whether a particular function is a security guard function as defined by subdivision six of section 89-f of this article." This rule clarifies the requirement that bouncers be registered as security guards pursuant to Article 7-A. Accordingly, the Secretary of State has express authority to adopt this rule.

2. Legislative objectives:

By enacting the Security Guard Act the Legislature sought, in part, to "establish uniform standards for the employment, registration, training [and] enforcement... of security guards and the security guard industry within the state." 1992 N.Y. Laws 336. The Legislature found that the ever increasing number of unregulated and unlicensed security guards who "may lack sufficient training and their nexus to the general public" is a matter of such compelling state concern as to require the creation of certain minimum recruitment and training standards. Id. As provided for in section 89-o of the General Business Law, this rule establishes registration requirements of bouncers who perform security guard functions. The Secretary has found that current regulations have been misinterpreted by the industry and that, as a result, many bouncers fail to comply with the registration requirements of the Security Guard Act. The Secretary has further found that unregistered bouncers continue to be a danger to the safety and general welfare of the public and the proposed rule is necessary to protect the citizens of the State. Accordingly, this rule advances the stated objectives of the Legislature when it enacted Article 7-A. After consulting with the Security Guard Advisory Council, the Department has determined that the proposed rule is necessary.

3. Needs and benefits:

This rule is needed in order to more adequately protect the public against unregulated and unlicensed bouncers. As part of their employment, bouncers perform security related duties such as protecting persons and property from harm and controlling access to the establishments where they are employed. Insofar as bouncers interact with patrons who may be intoxicated or otherwise impaired, proper training as a security guard is crucial as is the need for a criminal history background check which all security guards must undergo as part of the registration process.

Recent events highlight the need for this training and registration. In June 2009, Darryl Littlejohn was convicted of rape and first degree murder for the death of a patron from a bar where he was employed as a bouncer. (Shifrel, Scott and Goldiner, Dave, Darryl Littlejohn Gets Life Without Parol in Death of Imette St. Guillen, NY Daily News, July 8, 2009). In July 2009, a patron of a Rochester area night-club fell to his death after being chased by up to nine bouncers. (McLendon, Gary, Questions Linger in Water Street Chase That Ended with Death, Democrat and Chronicle, February 1, 2009). In August 2008, Ingrid Rivera, a 24 year old patron of a Times Square night-club was found beaten to death on the roof of the establishment. Club employees, including bouncers, were the initial suspects in Ms. Rivera's death. (Kerry Burke, Employee Questioned in Beating Death of Woman at Times Square Night club, NY Daily News, August 7, 2008. In 2006, Stephen Sakai, a New York City bouncer, was charged with shooting patrons outside a Manhattan nightclub and with three killings in Brooklyn, NY. Michael Brick, Law Officials Say Bouncer Is Indicted in 3 More Deaths, N.Y. Times, July 13 2006, at B1.

Unless the registration requirements of Article 7-A are clarified, the public's safety and general welfare will continue to be jeopardized by this largely, unlicensed profession. Accordingly, the Secretary of State has determined that the instant rule making is necessary to protect the general welfare and safety of the public.

4. Costs:

a. Costs to regulated parties:

Bouncers who complete the registration process in compliance with the proposed regulation will incur costs associated with applying for a security guard registration and completing the required training. The Department of State charges an application fee of $36.00 for registering as a security guard. Applicants must also pay the following fingerprint fees: $75.00 for a State criminal history search, $19.25 in FBI fingerprint fees and $11.50 in DCJS vendor fees for electronic submission of the applicant's fingerprints. Registered security guards are required to complete an eight hour pre-assignment training course, 16 hours of on-the job training and 8 hours of annual training. The cost of this training varies. Some employers provide the training at no cost. Others send security guard employees to educational institutions to complete the training. The cost of completing the training at these education institutions varies from $20.00 to $100 for each of the required three courses.

Bars and other establishments employing bouncers will also have to become registered with the Department of State as proprietary security guard employers. There is no cost for obtaining this registration.

b. Cost to the Department of State:

The Department of State anticipates that the cost of implementation and continued administration of this rule will be minimal and that the Department's mandate to adopt future rules and regulations implementing the provisions of Article 7-A can be accomplished by using existing staff and resources.

c. Cost to State and local governments:

The rule does not otherwise impose any implementation or compliance costs on State or local governments.

5. Local mandates:

The rule does not impose any program, service, duty or other responsibility on local governments.

6. Paperwork:

The rule does not impose paperwork requirements on the regulated parties other than registration and those already imposed pursuant to Article 7-A of the General Business law and the regulations promulgated thereunder.

7. Duplication:

This rule does not duplicate, overlap or conflict with any other state or federal requirement.

8. Alternatives:

The Department of State has been contacted by the State Liquor Authority which is charged with the enforcement and administration of the Alcoholic Beverage Control Law. Both administrative bodies are in agreement that regulations requiring registration and training of bouncers are needed to better protect the public against the dangers of this unlicensed profession. The State Liquor Authority expressed interest in amending its own regulations to require compliance with the current security guard regulations. However, as the Department of State is charged with the enforcement and administration of said regulations, it was decided that the State Department should adopt this rule.

The Department of State also considered not amending existing regulations but, rather, to educate the public about the need for bouncers to register as security guards. A series of seminars were held around New York State with local law enforcement. Since these educational seminars were held, however, raids by the State Liquor Authority have continued to find unregistered bouncers being employed at bars, taverns and night-clubs. Events surrounding death and injury to patrons of these establishments by bouncers have continued, thereby convincing the Department that the proposed regulation is necessary.

9. Federal standards:

There are no federal standards for the registration and training of bouncers. Accordingly, this rule is not pre-empted by any existing federal standard.

10. Compliance schedule:

The Department anticipates that bouncers would be able to begin earning accreditation and become registered immediately. The rule will be effective 90 days after adoption to afford bouncers and bouncer employers time to comply with this rule.

1. Effect of rule:

The rule will require bouncers to become registered as security guards. As a result, the proposed rule will effect those business which employ bouncers; particularly bars, taverns and night-clubs. Many of these establishments are small businesses. The State Liquor Authority licenses 25,567 establishments where the consumption of alcohol is permitted. Any one of these establishments may employ one or more bouncers.

The rule does not apply to local governments.

2. Compliance requirements:

To comply with the proposed rule, bouncers will be required to successfully complete the security guard training required by Article 7-A of the Security Guard Act. This training consists of the following courses: an 8 hour pre-assignment training course, a 16 hour on-the-job training course and an annual training course of 8 hours. Bouncers will also be required to submit a security guard application to the Department of State with two sets of fingerprint cards and pay the following fees: $36 registration fee, $75 NYS fingerprint fee, $19.25 FBI fingerprint fee and $11.50 DCJS vendor fee.

Employers of security guards are required to become registered as authorized security guard employers. The registration process consists of filing an application with the Department of State. There is no registration or other fee. Employers must also ensure that prospective bouncer employees are properly registered as security guards. This process entails obtaining an Employee Statement from the prospective employee and contacting the Department of State to ensure that the prospective employee is eligible for employment. Employers are required to maintain employee records throughout the period of employment and for one year after the employee ceases working for the employer.

3. Professional services:

Bouncers may require professional services to complete the required security guard training. While some employers offer this training to security guard employees at no charge, others require the employees to obtain the required training at security guard schools. Numerous schools exist throughout the state and offer the training at a cost of $20-$100 per class.

The Department of State does not anticipate that employers of security guards will need to obtain professional services to comply with the proposed rule. As set forth above, compliance requirements for employers of security guards consist primarily of filing an application with the Department of State, obtaining employee statements from prospective employees and contacting the Department of State to ensure that the prospective employee is eligible for employment. It is believed that these tasks can be completed easily by employers without assistance of any professionals.

4. Compliance costs:

Bouncers who complete the registration process in compliance with the proposed regulation will incur costs associated with applying for a security guard registration and completing the required training. The Department of State charges an application fee of $36.00 for registering as a security guard. Applicants must also pay the following fingerprint fees: $75.00 for a State criminal history search, $19.25 in FBI fingerprint fees and $11.50 in DCJS vendor fees for electronic submission of the applicant's fingerprints. Registered security guards are required to complete an eight hour pre-assignment training course, 16 hours of on-the job training and 8 hours of annual training. The cost of this training varies. Some employers provide the training at no cost. Others send security guard employees to educational institutions to complete the training. The cost of training at these education institutions varies from $20.00 to $100 per course.

Bars and other establishments employing bouncers will also have to become registered with the Department of State as proprietary security guard employers. There is no cost for obtaining this registration.

5. Economic and technological feasibility:

The Department has determined that it will be economically and technologically feasible for small businesses to comply with the proposed rule. The compliance requirements for businesses which employ security guards are minimal and consist largely of ministerial tasks of filing a registration application with the Department, having prospective employees complete an employee statement, and contacting the Department of State to ensure that the prospective employee is eligible for employment.

There is no cost for obtaining an employer registration with the Department of State. The Department does not anticipate that employers will incur any other costs in complying with the proposed rule.

6. Minimizing adverse economic impact:

In considering whether to advance the proposed rule, the Department of State considered its impact; particularly on employment opportunities in New York State. It was determined that clarifying existing regulations to ensure the security guard registration of bouncers, would have a positive economic impact insofar as it will increase employment opportunities for bouncers. Employers throughout New York State employ security guards to protect persons and property and to prevent unauthorized access. The proposed rule would require bouncers to complete security guard training and obtain a New York State security guard registration. This will enable bouncers to obtain employment in the security field. Numerous employment opportunities exist for security guards throughout New York. As such, the proposed rule will expand employment opportunities for bouncers and have a positive economic impact.

7. Small business participation:

Prior to proposing the rule, the Department of State held a series of seminars throughout the State with the State Liquor Authority and local law enforcement. These educational seminars on the requirements of the Security Guard Act were attended by many business representatives, including those of small businesses. The State Liquor Authority has also widely shared its interpretation of the Security Guard Act and that said statute requires the registration of bouncers. In raids and inspections of establishes licensed by said agency, the SLA has issued citations for the employment of unregistered security guards. The Department of State will continue its outreach after the rule is formally proposed as a Notice of Proposed Rule Making in the State Register. The publication of the rule in the State Register will provide additional notice to small businesses. Additional comments will be received and entertained by the Department.

1. Effect of the rule:

The rule will apply to bouncers employed by establishments licensed by the State Liquor Authority. The State Liquor Authority licenses 25,567 establishments where the consumption of alcohol is permitted. Any one of these establishments may employ one or more bouncers.

2. Compliance requirements:

To comply with the proposed rule, bouncers will be required to successfully complete the security guard training required by Article 7-A of the Security Guard Act. This training consists of the following courses: an 8 hour pre-assignment training course, a 16 hour on-the-job training course and an annual training course of 8 hours. Bouncers will also be required to submit a security guard application to the Department of State with two sets of fingerprint cards and pay the following fees: $36 registration fee, $75 NYS fingerprint fee, $19.25 FBI fingerprint fee and $11.50 DCJS vendor fee.

Employers of security guards are required to become registered as authorized security guard employers. The registration process consists of filing an application with the Department of State. There is no registration or other fee. Employers must also ensure that prospective bouncer employees are properly registered as security guards. This process entails obtaining an Employee Statement from the prospective employee and contacting the Department of State to ensure that the prospective employee is eligible for employment. Employers are required to maintain employee records throughout the period of employment and for one year after the employee ceases working for the employer.

3. Professional services:

Bouncers may require professional services to complete the required security guard training. While some employers offer this training to security guard employees at no charge, others require the employees to obtain the required training at security guard schools. Numerous schools exist throughout the state and offer the training at a cost of $20-$100 per class.

The Department of State does not anticipate that employers of security guards will need to obtain professional services to comply with the proposed rule. As set forth above, compliance requirements for employers of security guards consist primarily of filing an application with the Department of State, obtaining employee statements from prospective employees and contacting the Department of State to ensure that the prospective employee is eligible for employment. It is believed that these tasks can be completed easily by employers without assistance of any professionals.

4. Compliance costs:

Bouncers who complete the registration process in compliance with the proposed regulation will incur costs associated with applying for a security guard registration and completing the required training. The Department of State charges an application fee of $36.00 for registering as a security guard. Applicants must also pay the following fingerprint fees: $75.00 for a State criminal history search, $19.25 in FBI fingerprint fees and $11.50 in DCJS vendor fees for electronic submission of the applicant's fingerprints. Registered security guards are required to complete an eight hour pre-assignment training course, 16 hours of on-the job training and 8 hours of annual training. The cost of this training varies. Some employers provide the training at no cost. Others send security guard employees to educational institutions to complete the training. The cost of training at these education institutions varies from $20.00 to $100 per course.

Bars and other establishments employing bouncers will also have to become registered with the Department of State as proprietary security guard employers. There is no cost for obtaining this registration.

5. Minimizing adverse economic impacts:

In considering whether to advance the proposed rule, the Department of State considered its impact; particularly on employment opportunities in New York State. It was determined that clarifying existing regulations to ensure the security guard registration of bouncers, would have a positive economic impact insofar as it will increase employment opportunities for bouncers. Employers throughout New York State employ security guards to protect persons and property and to prevent unauthorized access. The proposed rule would require bouncers to complete security guard training and obtain a New York State security guard registration. This will enable bouncers to obtain employment in the security field. Numerous employment opportunities exist for security guards throughout New York. As such, the proposed rule will expand employment opportunities for bouncers and have a positive economic impact.

6. Rural area participation:

Prior to proposing the rule, the Department of State held a series of seminars throughout the State with the State Liquor Authority and local law enforcement. These educational seminars on the requirements of the Security Guard Act were attended by many business representatives, including those from rural areas. The State Liquor Authority has also widely shared its interpretation of the Security Guard Act and that said statute requires the registration of bouncers. In raids and inspections of establishes licensed by said agency, the SLA has issued citations for the employment of unregistered security guards. The Department of State will continue its outreach after the rule is formally proposed as a Notice of Proposed Rule Making in the State Register. The publication of the rule in the State Register will provide additional notice to residents and business owners from rural areas. Additional comments will be received and entertained by the Department.

1. Nature of the impact on jobs and employment opportunities.

The Department of State has determined that the proposed rule will promote the development of new employment opportunities for bouncers. Employment opportunities exist for security guards in a variety of venues including, but not limited to, shopping malls, grocery and department stores, sporting arenas and events and through other private and public employers. By requiring bouncers to obtain the training required by Article 7-A of the General Business Law (the "Security Guard Act") and become registered as security guards pursuant to said statute, the proposed rule will expand employment opportunities for bouncers.

The Department of State has also determined that the proposed rule will not have an adverse impact on existing jobs. For liability and security reasons, bars, taverns and night-clubs employ bouncers. These establishments will continue to need bouncer employees if the proposed rule is ultimately adopted. By requiring these employees to complete mandatory training and become registered as security guards will assure employers that they are employing trained, competent professionals. The training and registration requirements of the Security Guard Act are not onerous and can be easily completed by existing and prospective bouncers and the employers of these security guards.

2. Categories of jobs or employment opportunities affected by the proposed rule.

The proposed rule will affect those persons employed as bouncers. If the proposed rule is adopted, bouncers will expand their employment opportunities to include those in the security field.

3. The approximate number of jobs or employment opportunities affected in each category.

The Department of State has been unable to determine the number of bouncers who will be affected by this rule insofar as the State Liquor Authority does not maintain these numbers and it is believed that many bouncers work for cash and do not pay taxes. The State Liquor Authority licenses 25,567 establishments where the consumption of alcohol is permitted. Any one of these establishments may employ one or more bouncers.

4. Regional impact on jobs or employment opportunities.

The Department of State has determined that the proposed rule will have a uniform impact throughout the State. Bouncers in the New York City area are already required to be registered security guards pursuant to local law. Many establishments in upstate New York employ bouncers as well, particularly in municipalities with one or more college or university.

5. Measures taken to minimize any unnecessary adverse impacts on exiting jobs and to promote the development of new employment opportunities.

In considering whether to advance the proposed rule, the Department of State considered its impact; particularly on employment opportunities in New York State. It was determined that clarifying existing regulations to ensure the security guard registration of bouncers, would have a positive impact on employment opportunities. Employers throughout New York State employ security guards to protect persons and property and to prevent unauthorized access. The proposed rule would require bouncers to complete security guard training and obtain a New York State security guard registration. This will enable bouncers to obtain employment in the security field. Numerous employment opportunities exist for security guards throughout New York. As such, the proposed rule will expand employment opportunities for bouncers.