ARTICLE XVI
WESTCHESTER COUNTY CONSUMER PROTECTION CODE
"LICENSING OF PERSONS ENGAGED IN THE HOME IMPROVEMENT BUSINESS"

EFFECTIVE DATE APRIL 20, 1987
AMENDED JUNE 14, 1993
OCTOBER 16, 1999
OCTOBER 31, 2000
NOVEMBER 14, 2002
JANUARY 1, 2003
SEPTEMBER 9, 2004
APRIL 27, 2007
NOVEMBER 28, 2007

WESTCHESTER COUNTY DEPARTMENT OF CONSUMER PROTECTION
LICENSING DIVISION
4TH FLOOR, 112 EAST POST ROAD
WHITE PLAINS, NEW YORK 10601
(914) 995-2211 FAX  (914) 995-3115

WWW.WESTCHESTERGOV.COM

 

ARTICLE XVI.  LICENSING OF PERSONS ENGAGED IN THE HOME IMPROVEMENT BUSINESS

Section 863.311.  Legislative Findings.

It is hereby declared and found that because of the increase in complaints by residential dwellers in the County of Westchester about abuses on the part of home improvement contractors, it has become desirable to safeguard and protect such residents by regulating the home improvement, remodeling and repair business and by licensing persons engaged in such business.  Such licensing will protect and promote the health, safety and welfare of the residents of the County of Westchester.

Section 863.312.  Definitions.

Unless the context otherwise specifically requires, the following terms, when used in this Article, shall have the following meanings:

   1. "Contractor" means any person who owns, operates, maintains, controls, transacts or conducts a home improvement business or who undertakes or advertises a home improvement service or offers to undertake or agrees to perform any home improvement.

   2. "Home improvement" means a repair, replacement, remodeling, installation, construction, alteration, conversion, modernization made to, in or upon a private residence, apartment or dwelling place of not more than three units, including, but not limited to the following:

   3.  "Home improvement business" means the business of providing for a profit, a home improvement to an owner, provided, however, the term shall not include labor or services performed by an employee for a contractor.

   4.  "Home improvement contract" means an agreement between a contractor and an owner for the performance of a home improvement,  and  includes  all  labor, services  and  materials  to  be  furnished  and  performed there under,  either directly by the contractor or by another person under separate  agreement  with the contractor.

   5. “Leaf blower” means any portable device powered by a self contained internal combustion engine, which is commonly used in landscaping and property maintenance to blow, disperse or redistribute dust, dirt, leaves, grass clippings, cuttings, trimmings from trees or shrubs, or other debris on sidewalks, driveways, lawns, or other surfaces.

   6.  "Licensee" means a person licensed to engage in the home improvement business under the provisions of this Article.

   7.  "Owner" means a homeowner, tenant, or any other residential dweller who orders, contracts for, or purchases a home improvement.

   8.  "Person" means an individual, firm, company, partnership, association, corporation or other business entity.

   9.  “Affiliate” shall mean any person controlling, controlled by, or under common control with a licensee or contractor. The terms “control”, “controlled” or “controlling shall mean the possession, direct or indirect, of the power to cause the direction of management and policies of such controlled person. The ownership, directly or indirectly, of at least fifty-one percent (51%) of the voting securities of, or the possession of the right to vote, in the ordinary direction of its affairs, of  fifty-one percent (51%) of the voting interest in, any person shall be presumed to constitute such control.

Section 863.313.  License Required; Home Improvement Business.

   1.  No person shall maintain, conduct, advertise, operate, or engage in the home improvement business within the county of Westchester, or hold himself or herself out as being able to do so, unless such person is licensed pursuant to this Article.

    2.  Upon issuance of a home improvement license to a landscaper and a gardener under the provisions of this chapter, the Sealer shall issue a vehicle decal for each vehicle identified by the licensee as a vehicle which will be used in connection with the licensed activities.  Such vehicle decals shall be conspicuously displayed in the vehicle(s) used in connection with the licensed activities during the term of the license.

Section 863.314.  Application for License or Renewal; affirmation regarding leaf blowers.

1.       An application for a license under this Article, or a renewal thereof, shall be made in writing to the Sealer in accordance with such procedures, providing such information and on such forms as the Sealer may from time to time require. The application shall be signed by the applicant and shall be accompanied by a check, cash or money order in the amount of the fee required under Section 863.315 of this Article.

2(a)   Effective January 1, 2008, through December 31, 2008, a contractor, engaged in the business of landscaping, gardening, arboriculture, or any similar outdoor vocation, seeking to obtain or renew a license under this section, shall verify in writing that such contractor, its agent, affiliate or employee is aware of the requirements of Subsection 1 of Section 863.327 of this Chapter, and shall comply with subsection when effective; and
2(b)    Effective January 1, 2009, a contractor, engaged in the business of landscaping, gardening, arboriculture, or any similar outdoor vocation, seeking to obtain or renew a license under this section, shall verify in writing that such contractor, its agent or affiliate or employee is in compliance with Subsection 1 of Section 863.327 of this Chapter.                           

Section 863.315.  Fees.

The bi-annual fee for a license to conduct a home improvement business shall be three hundred dollars ($300.) and for each renewal thereof the fee shall be three hundred dollars ($300.)  The license to conduct a home improvement business shall be for a period of two (2) years and each renewal thereof shall be for two (2) years. The Sealer may impose a penalty of twenty-five ($25.) dollars upon a renewal application received by the Sealer later than fifteen (15) days prior to the expiration date of the license sought to be renewed.  The fee for issuing a duplicate license for one lost, destroyed or mutilated shall be twenty-five dollars ($25.).

Section 863.316.  Grant or Denial of License or Renewal.

   1.  Within ninety (90) days after receipt of a complete application in proper form, the Sealer shall grant or deny a license, or renewal thereof, under this Article.  The Sealer shall grant the license or renewal unless the Sealer determines that the applicant:

A denial of a license or renewal shall be made by the Sealer in writing and shall set forth a statement of the reason or reasons therefor and shall be subject to administrative and judicial review in accordance with Subdivision two of this Section.

   2.  Within thirty (30) days after a denial of an application for a license or a renewal thereof, the applicant shall be entitled to demand a hearing before the Sealer by making a written demand therefor.  Following receipt of such written demand, a hearing shall be held by the Sealer, or by a deputy designated by the Sealer, or by such other person or persons designated by the Sealer.  A record of such hearing shall be made.  At such hearing the applicant may be represented by counsel and may offer evidence in his or her behalf to demonstrate that a license or renewal should be granted.  Compliance with technical rules of evidence shall not be required.  If a deputy or other person or persons is designated to hold the hearing, such deputy or other designated person or persons shall refer the record and recommendations to the Sealer for determination.  The determination made by the Sealer shall be subject to judicial review in accordance with Article 78 of the Civil Practice Law and Rules in a proceeding brought within four (4) months after the determination is rendered.
                           

Section 863.317.  Revocation or Suspension of License.

   1.  In accordance with the procedure set forth in Subdivision two of this Section, the Sealer may revoke, or upon such conditions as the Sealer deems appropriate, suspend for a period of time, a license issued under this Article, provided, however, that no revocation or suspension imposed hereunder shall be construed to impair or preclude a licensee's obligation to complete home improvement contracts in existence on the date such revocation or suspension otherwise becomes effective.  On the effective date of such revocation or suspension the licensee shall furnish the Sealer with a written list of such home improvement contracts with respect to which licensee is under a legal obligation to perform, in accordance with procedures authorized by Section 863.324 (5) of this Article.

   2.  Grounds for suspension or revocation shall include:

   3.  The licensee shall be given written notice by the Sealer of the commencement of the revocation or suspension proceeding and a copy of the charges upon which the proceeding is brought.  Service may be made by ordinary mail to the address given in the application made by the licensee for a license under this Article.  The licensee shall answer the charges in writing within ten (10) days.  A hearing on such charges shall be held by the Sealer or a deputy designated by the Sealer, or by such other person or persons designated by the Sealer.  A record of such hearing shall be made.  At such hearing the licensee may be represented by counsel and may offer evidence in his or her behalf.  Compliance with technical rules of evidence shall not be required.  The burden of proving the charges by substantial evidence shall be upon the Sealer.  If a deputy or other person or persons is designated to hold the hearing, such deputy or other designated person or persons shall refer the record and recommendations to the Sealer for determination.  The determination made by the Sealer shall be subject to judicial review in accordance with Article 78 of the Civil Practice Law and Rules in a proceeding brought within four (4) months after the determination is rendered.

Section 863.318.  License, Assignment.

Any license issued by the Sealer under this Article shall not be assigned or transferred by the licensee.

Section 863.319.  Violations.

   1. It shall be a violation to:

   2.  The foregoing acts are unlawful when committed by a person engaged in the home improvement business within the County of Westchester and violations of the provisions of this Section proscribing certain acts shall be enforced in accordance with and shall be subject to the penalties provided in the Laws of Westchester County, including but not limited to Chapter 182, Article VIII of Chapter 277 and Article I of Chapter 863 thereof.

Section 863.320.  Criminal Penalties.

Any person who shall maintain, conduct, operate or engage in a home improvement business within the County of Westchester without a license as required under this Article or who continues to conduct a home improvement business after such license has been denied, suspended, revoked or has expired shall be guilty of a Class A misdemeanor.

Section 863.321.  Other Licenses.

   1.  A license issued pursuant to this Article shall not be construed to authorize the licensee to perform any particular type of work or kind of business that is reserved to qualified licensees under separate provisions of State or Local Law.

   2.  Nothing in this Article shall be construed to limit or restrict the power of a city, town or village to regulate the quality, performance, or character of the work of contractors including a system of permits and inspections that are designed to secure compliance with and aid in the enforcement of applicable State and local building laws, or to enforce other laws necessary for the protection of the public health and safety.  Nothing in this Article shall be construed to limit or restrict the power of a city, town or village to adopt any system of permits requiring submission to and approval by the city, town or village of plans and specifications for an installation prior to the commencement of construction of the installation of or inspection of work done.

   3.  Notwithstanding any provision of this Article to the contrary, this Article shall relate only to the area of the County of Westchester outside any city, village or area of any town outside the village or villages therein during such time as such city, village or town is regulating or licensing the home improvement business.

Section 863.322.  No Waiver.

The provisions of this Article are intended for the protection of an owner and shall not be subject to waiver by an owner in a home improvement contract or otherwise.

Section 863.323.  Severability.

If any clause, sentence, paragraph or part of this Article shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy and in which such judgment shall have been rendered.

Section 863.324.  Miscellaneous.

   1.  Nothing set forth in this Article shall subject the County of Westchester or its officials, agents or employees to liability for damages or otherwise arising out of or related to the conduct of any home improvement business by a licensee.

   2.  The provisions of this Article shall not apply to any home improvement to be performed under a home improvement contract made prior to the effective date of this Article.

   3.  Persons engaged in the home improvement business in Westchester County on the effective date of this Article who have applied for licenses hereunder may continue to engage in such business while their license applications are processed.  Persons not engaged in the home improvement business in Westchester County on the effective date of this Article may commence such business upon filing a license application in accordance with Section 863.314 of this Article.

   4.  Notwithstanding any provisions of this Article to the contrary, this Article shall not apply to:

   5.  The Sealer is empowered to establish administrative procedures to carry out the provisions of this Article in conformity with the provisions thereof.  The Sealer shall require proof of personal liability and property damage insurance set by the Sealer in an amount not to exceed three-hundred thousand dollars ($300,000.).

   6.  The Sealer may require an application for a license to be accompanied by a bond, approved as to form by the  County Attorney, executed by a bonding or surety company authorized to do business in the State of New York or cash security in an amount to be set by the Sealer not to exceed fifty thousand dollars ($50,000.), conditioned upon the assurance that during the term of such license, the contractor will continue to comply with the provisions of this Article, to assure that upon default in the performance of any contract, the advance payment made thereon, less the reasonable value of services actually rendered to the date of the contract in the event of noncompletion thereof, will be refunded to the consumer, owner, or lessee with whom such contract was made.  Such bond shall run to the County of Westchester for the use and benefit of any person or persons intended to be protected thereby. The required bond, after the aforementioned approval by the County Attorney, shall be filed in the Office of the Sealer.  The Sealer may require a bond at any time during the term of the license based on the licensee's performance during such term.

   7.  Any licensee using chemicals regulated or controlled by the New York State Department of Environmental Conservation shall show proof of certification for use of said chemicals.

Section 863.325.  Disclosures required of certain home improvement contractors; penalties.

   1. If a licensee or an affiliate directly or indirectly arranges or facilitates the financing of a home improvement contract, then prior to executing the home improvement contract, said licensee must:

   2.  Within five (5) business days of executing a home improvement contract, any licensee of required to comply with the provisions of subdivision 1, must also file with the sealer:

   3.  In addition to the penalties set forth in sections 277.171, 277.181 and 863.52, the sealer may, after providing notice and an opportunity to be heard, revoke the license or deny the application for a license renewal that fails to comply with any of the requirements of this section.

Section 863.326.  Vehicles to display name and address of landscaper or gardener.

  1.  All motor vehicles which are used in the normal course of business by landscapers or gardeners or their employees to deliver tools, materials or workers to a job site in Westchester County shall, while such vehicle is parked at the job site, display on both sides of the vehicle the names and address of the landscaper or gardener in letters and numerals readily legible from a distance of fifty feet during daylight hours and while the motor vehicle is stationary.

  2.  The requirements of this section may be complied with by permanently affixing the landscaper or gardener’s name and address to the motor vehicle or by affixing removable signs to the motor vehicle to be displayed while such vehicle is parked at a job site and the landscapers and gardeners or their employees are engaged in the normal course of business in Westchester County.

*There are two (2) sections 863.327

Section 863.327. Leaf Blowers; Licensee Requirements.

1. Effective January 1, 2009, no licensee engaged in the business of landscaping, gardening, arboriculture, or any similar outdoor vocation, nor its agent, affiliate or employee, shall operate a leaf blower that does not meet EPA Phase 2, 2007 exhaust emission standards or that does not operate in accordance with manufacturer’s instructions or specifications.

2. Ninety days from the effective date of this local law, and to the extent practicable, the Sealer shall notify all licensees and applicants and provide:

(a) copy of this local law regarding the operation of leaf blowers by a contractor or licensee under this section; and

(b) a copy of EPA Phase 2, 2007 exhaust emission standards.

  3. Nothing in this section shall be deemed to supersede any municipal ordinance or rule regulating the use of leaf blowers or any similar device.

Sec. 863.327.  Seizure and impoundment of vehicles and tools used in connection with the unlicensed operation of a home improvement business.

  1.   Any police officer or authorized officer, employee or agent of the Department of Consumer Protection – Weights and Measures, upon service on the operator of a vehicle and/or person in possession of tools or implements of a notice of violation for operating without a license required by subdivision 1 of section 863.313 of this article, may seize and impound any vehicle, tool or other implement which such officer has reasonable cause to believe is being used in connection with such violation.  Any vehicle, tool or implement seized pursuant to this section shall be delivered into the custody of the Department of Public Safety or Department of Consumer Protection – Weights and Measures.

  2.   A person from whom a vehicle, tool or implement has been seized and impounded pursuant to this section shall receive notice at the time of such seizure and by overnight mail, as soon thereafter as practical informing such person how and when the vehicle, tool or implement may be reclaimed. In the event that the person from whom the vehicle was seized is not the registered owner of the vehicle, separate notice shall be provided by overnight mail to the registered owner of the vehicle. Notice shall also be provided to any lienholder in the same manner.  For purposes of this section, the term “lienholder” shall, in the case of a vehicle, mean any person, corporation, partnership, firm, agency, association or other entity who at the time of a seizure pursuant to this section has a financial interest recorded as a lien with the Department of Motor Vehicles of the State of

New York or any other state, territory, district, province, nation or other jurisdiction.

  3.   The Sealer or the designee of the Sealer shall hold a hearing in accordance with the provisions of section 277.151 of the Laws of Westchester County not otherwise in conflict with this section, to adjudicate the violation of subdivision 1 of section 863.313 of this article underlying the seizure and impoundment within five business days after the date of such seizure and impoundment and shall render his or her determination immediately following the conclusion of such hearing.  Such determination shall also include a finding as to whether or not such vehicle, tool or other implement was used in connection with such violation, and if necessary, an additional finding as to whether the owner of such property, if not the person served with a notice of violation pursuant to subdivision 1 of this section, permitted the use of such property under circumstances evincing that such owner knew or should have known that such property would be used for the conduct that was the basis for the seizure of the property.  There shall be a rebuttable presumption that such owner knew or should have known that such property would be used for the conduct that was the basis for the seizure of the property, if such owner was the employer, parent, legal guardian or spouse of the person served with a notice of violation pursuant to subdivision 1 of this section at the time of the seizure.

  4.   A vehicle, tool or other implement seized and impounded pursuant to this section may be released to the owner of such property prior to the hearing provided in subdivision 3 of this section upon the posting of an all cash bond in a form satisfactory to the Sealer in an amount sufficient to cover: (a) the maximum civil penalties which may be imposed for the violation of subdivision 1 of section 863.313 of this article underlying the seizure and impoundment; (b) all outstanding civil penalties previously imposed pursuant to Section 277.171 of the Laws of Westchester County against the person served with a notice of violation pursuant to subdivision 1 of this section – if the authorized agent seizing such property pursuant to subdivision 1 of this section alleges, based upon reasonable cause to believe, that such owner, if not the person served with a notice of violation pursuant to subdivision 1 of this section, permitted the use of such property under circumstances evincing that such owner knew or should have known that such property would be used for the alleged conduct that was the basis for the seizure of the property; and (c) all reasonable costs for removal and             storage of such vehicle, tool or implement.  In addition, release of such vehicle, tool or other implement to the owner of such property shall also require payment of all outstanding civil penalties previously imposed pursuant to Section 277.171 of the Laws of Westchester County directly against such owner.  Release to a person claiming such property shall be conditioned on presentation of, in the case of (i) a vehicle, proof of ownership or authorization from the owner of the vehicle as ownership is defined by section 388 of the Vehicle and Traffic Law, or (ii) in the case of a tool or other implement or equipment, proof of ownership or authorization by the        owner satisfactory to the Sealer.

  5.   Following an adjudication that has resulted in a determination that the vehicle, tool or other implement was used in connection with unlicensed activity in violation of subdivision 1 of section 863.313 of this article, release of such vehicle, tool or other implement to the owner of such property may be obtained upon payment of: (a) all civil penalties for the violation of subdivision 1 of section 863.313 of this article underlying the seizure and impoundment; (b) all outstanding civil penalties previously imposed pursuant to Section 277.171 of the Laws of Westchester County directly against such owner; (c) all outstanding civil penalties previously imposed pursuant to Section 277.171 of the Laws of Westchester County against the person served with a notice of violation pursuant to subdivision 1 of this section – if such owner was determined by the Sealer or the designee of the Sealer pursuant to subdivision 3 of this section, to have permitted the use of such property by the person served with a notice of violation pursuant to subdivision 1 of this section under circumstances evincing that such owner knew or should have known that such property would be used for the conduct that was the basis for the seizure of the property; and (d) all reasonable costs for removal and storage of such vehicle, tool or implement and proof of ownership as provided in subdivision 4 of this section.

  6.   No person shall obtain release of a vehicle, tool or other implement pursuant to subdivisions 4 and 5 of this section, unless and until such person submits an application for a home improvement license, or reinstatement of such a license, as appropriate, to the Sealer in the form and containing the information required by the Sealer. Notwithstanding the provisions of this section, in the event that the owner of the vehicle, tool or other implement was not the person who was served with a notice of violation alleging a violation of the provisions of subdivision 1 of section 863.313 of this article or found to be in violation of the provisions of subdivision 1 of section 863.313 of this article, such owner may obtain release upon payment of all applicable civil penalties and all reasonable costs of removal and storage as provided herein and upon execution of a sworn statement, subject to the provisions of the Penal Law relative to false statements and satisfactory to the Sealer, that he or she will not permit the person who is alleged to have violated or found to have violated such provisions to operate or possess the vehicle, tool or other implement in violation of subdivision 1 of section 863.313 of this article.

  7.   After adjudication of the violation underlying the seizure in accordance with subdivision 3 of this section, if the Sealer or the designee of the Sealer finds that the vehicle, tool or other implement has not been used in connection with unlicensed activity under the provisions of subdivision 1 of section 863.313 of this article, the Department of Consumer Protection – Weights and Measures shall promptly cause such vehicle, tool or other implement to be released to its lawful owner upon payment of all outstanding civil penalties previously imposed pursuant to Section 277.171 of the Laws of Westchester County against such owner.  If applicable, the Department of Consumer Protection – Weights and Measures shall also promptly return any cash bond posted pursuant to subdivision 4 of this section in accordance with the determination of the Sealer or the designee of the Sealer pursuant to subdivision 3 of this section.  Upon demand of the applicant, the Department of Consumer Protection – Weights and Measures shall refund fees, as appropriate, paid in connection with the submission of an application for a home improvement license pursuant to subdivision 6 of this section, provided that said applicant withdraws the application, if pending, or otherwise surrenders any home improvement license previously issued pursuant to such application.

Section 4.  This Local Law shall take effect thirty days after it shall have become law.

ARTICLE XIX.  INSTALLATION AND REPAIR OF OVERHEAD GARAGE DOORS.

Section 863.601.  Legislative findings.

    The County Board of Legislators finds that overhead garage doors without safety cables attached to them create a danger to persons and property. Specifically, the springs which facilitate the opening and closing of overhead garage doors have a tension weight from 75 lbs. to 300 lbs. of pressure. Upon loosening or breaking, these springs can shoot away from the garage door causing serious injury to persons and damage to property.

    The County Board of Legislators further finds that the proper installation of an anchored safety cable can avoid serious injury or damage by preventing the release of the spring from an overhead garage door. Therefore, it is in the interest of the welfare and safety of the citizens of Westchester County to require that home improvement businesses install safety cables upon installation or repair of overhead garage doors.

Section 863.602.  Definitions.

  1.  Home improvement business shall mean a home improvement business licensed pursuant to chapter 863, article XVI of the Laws of Westchester County.

  2.  Overhead garage door shall mean any sectional overhead garage door that employs the use of extensions springs.

  3.  Person shall mean any natural person, corporation, unincorporated association, firm, partnership, joint venture, joint stock association or other entity or business organization of any kind.

  4.  Safety cable shall mean a safety cable no less than three-thirty-seconds (3/32) of an inch which is anchored from the rear support brackets that hold the garage door track to the front part of the garage door frame.

Section 863.603.  Installation and repair of overhead garage doors.

    It shall be unlawful for any person or home improvement business to install or repair any overhead garage door without installing a safety cable, if one does not already exist.

Section 863.604.  Violations.

    A violation of section 863.603 shall be punishable by a civil fine not to exceed $150.00.

Section 863.605.  Severability.

    If any clause, sentence, paragraph or part of this article shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph section or part thereof directly involved in the controversy and in which such judgments shall have been rendered.

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