Section 394. Drivers' schools

1. Definitions. As used in this section:
    (a)  "Drivers'  school"  means  the business of giving instruction for
  hire in driving motor vehicles or motorcycles.
    (b) "Person" includes an individual, firm,  corporation,  partnership,
  joint venture, joint adventurer or association.
    (c)  "Place  of  business"  means  a  designated location at which the
  business of a drivers' school is transacted and its records kept.
    2. License. No person shall engage in the  business  of  conducting  a
  drivers'  school  without being the holder of a license for such purpose
  issued by the  commissioner.  An  application  for  license  under  this
  section  shall  be  filed  with  the commissioner and shall contain such
  information as he shall  prescribe.  Every  such  application  shall  be
  accompanied  by  an  application fee of fifty dollars, which shall in no
  event be refunded. If an application is approved  by  the  commissioner,
  the  applicant upon the payment of an additional fee of five dollars for
  each month or fraction thereof from the date of issuance to the date  of
  expiration  prescribed  by the commissioner, but in no event more than a
  total of fifty dollars, shall be granted a license which shall be  valid
  until  such date of expiration. The annual fee for renewal thereof shall
  be fifty dollars. Upon renewal, the commissioner may in  his  discretion
  issue  a  license  which shall be valid for up to a two-year period. The
  fee for a two-year renewal  shall  be  one  hundred  dollars.  Fees  for
  renewal  of a license valid for a period of less than two years shall be
  prorated on a quarterly basis and any portion  of  a  quarter  shall  be
  considered a quarter. The commissioner shall issue a license certificate
  to  each licensee, which certificate shall be conspicuously displayed in
  the place of business of the licensee. In case of the  loss,  mutilation
  or  destruction of a license certificate, the commissioner shall issue a
  duplicate thereof upon proof of the facts and payment of a  fee  of  two
  dollars.
    3.  Place  of  business. (a) No license shall be issued, nor shall any
  renewal of a license be made, for conducting a drivers' school in a city
  having a population of two hundred fifty thousand or more  according  to
  the  latest  federal census, unless the place of business of such school
  is located  in  a  store,  office  or  portion  of  a  building  devoted
  exclusively to nonresidential use.
    (b)  No license shall be issued, nor shall any renewal of a license be
  made for conducting a drivers' school in a city having a  population  of
  fifty  thousand  or  more according to the latest federal census, if the
  place of business of such school or branch thereof,  is  within  fifteen
  hundred feet of a building owned or leased by the state, the county or a
  city,  in  which  motor vehicle registrations or licenses to drive motor
  vehicles are issued to the public. The said distance of fifteen  hundred
  feet  shall  be  measured  along the public streets by the nearest route
  from such place of business, or branch thereof, to such building.
    4.  Refusal  to  issue  a  license.  The  commissioner  may  deny  the
  application  of  any  person  for  a  license, if, in his discretion, he
  determines that:
    (a) Such applicant has made a material false statement or concealed  a
  material fact in connection with his application;
    (b)  Such applicant, any officer, director, stockholder or partner, or
  any other person directly or indirectly interested in the  business  was
  the  former holder, or was an officer, director, stockholder or partner,
  in a corporation or  partnership  which  was  the  former  holder  of  a
  drivers'   school   license  which  was  revoked  or  suspended  by  the
  commissioner;
    (c) Such applicant or any  officer,  director,  stockholder,  partner,
  employee,  or  any other person directly or indirectly interested in the

  business has been convicted of a  felony,  or  of  any  crime  involving
  violence, dishonesty, deceit, indecency, degeneracy or moral turpitude;
    (d) Such applicant has failed to furnish satisfactory evidence of good
  character, reputation and fitness;
    (e)  Such  applicant  does not have a place of business as required by
  this section;
    (f) Such applicant is not the true owner of the drivers' school.
    5.  Suspension,  revocation  and  refusal  to  renew  a  license.  The
  commissioner,  or  any  employee  of  the  department  of motor vehicles
  deputized by him, may suspend or revoke a license or refuse to  issue  a
  renewal thereof for any of the following causes:
    (a)  the  conviction of the licensee or any partner, officer, agent or
  employee of such licensee, of  a  felony,  or  of  any  crime  involving
  violence,  dishonesty, deceit, indecency, degeneracy or moral turpitude;
  (b) where the licensee has made a material false statement or  concealed
  a  material  fact  in connection with his application for a license or a
  renewal thereof; (c) where the licensee has failed to comply with any of
  the provisions of this section or any of the rules  and  regulations  of
  the  commissioner  made  pursuant thereto: (d) where the licensee or any
  partner, officer, agent or employee of such licensee has been guilty  of
  fraud  or  fraudulent  practices  in  relation to the business conducted
  under the license, or guilty of inducing another to resort to  fraud  or
  fraudulent  practices  in  relation to securing for himself or another a
  license to drive a motor vehicle or  motorcycle.  The  term  "fraudulent
  practices"  as  used  in  this  section  shall include, but shall not be
  limited to, any conduct or representation on the part of  the  licensee,
  or  any  partner,  officer, agent, or employee of a licensee, tending to
  induce another or to give the impression that a  license  to  operate  a
  motor  vehicle  or  motorcycle,  or  any  other license, registration or
  service granted by the commissioner, may be obtained by any means  other
  than  the ones prescribed by law, or furnishing or obtaining the same by
  illegal  or  improper  means,  or  requesting,  accepting,  exacting  or
  collecting money for such purpose.
    Notwithstanding  the renewal of a license, the commissioner may revoke
  or suspend such license for causes and violations, as prescribed by this
  section, occurring during the two license periods immediately  preceding
  the renewal of such license.
    The commissioner, or any person deputized by him, in addition to or in
  lieu  of revoking or suspending a license to conduct a driving school in
  accordance with the provisions of this section, may by order require the
  licensee to pay to the people of this state  a  penalty  in  a  sum  not
  exceeding  five hundred dollars for each violation, and upon the failure
  of such licensee to pay  such  penalty  within  twenty  days  after  the
  mailing  of  such  order,  postage prepaid, registered or certified, and
  addressed to the last known place of business of such  licensee,  unless
  such  order  is  stayed  by  a  court  of  competent  jurisdiction or in
  accordance with the provisions of article three-A of this  chapter,  the
  commissioner  may revoke the license of such licensee or may suspend the
  same for such period as he may determine. Civil penalties assessed under
  this subdivision 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  licensee  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.
    6.  Hearing.  Except where a refusal to issue a license or renewal, or
  revocation or suspension, is based  solely  on  a  court  conviction  or
  convictions,  a  licensee  or  applicant shall have an opportunity to be
  heard,  such  hearing  to  be  held  at  such  time  and  place  as  the
  commissioner  shall  prescribe. Provided, however, upon a written notice
  of temporary suspension delivered by certified mail to the  licensee,  a
  license  may be temporarily suspended pending a hearing. Any such notice
  of temporary suspension shall provide that the suspension  is  effective
  seventy-two  hours after mailing of such notice and shall provide that a
  hearing be scheduled within ten days after the  effective  date  of  the
  temporary suspension.
    A  licensee  or  applicant  entitled  to  a hearing shall be given due
  notice thereof. The sending of a notice of a hearing by registered  mail
  to  the  last known address of a licensee or applicant ten days prior to
  the date of the hearing shall be deemed due notice. The commissioner, or
  the person deputized by him to conduct a hearing, shall  have  power  to
  subpoena  witnesses, administer oaths to witnesses and take testimony of
  any person or cause his deposition to be taken. A subpoena issued  under
  this  section  shall  be  regulated by the civil practice law and rules.
  Officers or employees in the department of taxation and finance,  making
  service of such subpoenas are not entitled to fees and mileage.
    7.  Supervision;  records.  The commissioner shall approve the form of
  contract used by all  licensees,  and  may  prescribe  reasonable  rules
  governing  the  terms  which  may  be  included in such contracts. Every
  licensee shall keep such records as the commissioner may  by  regulation
  require.  The records of the licensee shall be open to the inspection of
  the commissioner or his representatives at all times  during  reasonable
  business  hours.  The commissioner shall prescribe such reasonable rules
  and regulations as he may deem necessary to carry out the provisions  of
  this section.
    7-a.  Certification  of driving time. The commissioner shall establish
  by regulation a certification process by drivers' schools of the  amount
  of  time  a  holder  of  a  learner's permit has spent operating a motor
  vehicle or motorcycle while under the immediate supervision of a driving
  instructor  holding  an  instructor's  certificate  issued  pursuant  to
  subdivision eight of this section. A certificate issued pursuant to this
  section  shall  be  deemed  to  be  proof  of  all  or  a portion of the
  supervised driving experience required under certification  pursuant  to
  paragraph  (d)  of  subdivision  two of section five hundred two of this
  chapter.
    8. Instructors. (a) No person shall be employed by  a  licensee  as  a
  driving  instructor,  nor shall any person give instructions for hire in
  the operation of motor vehicles or motorcycles unless such person is the
  holder of a driver's license valid for operation in this  state  and  an
  instructor's  certificate  issued by the commissioner. Such certificates
  shall be issued only to persons of good reputation and moral  character,
  whose  driving  records, as determined by the commissioner, qualify them
  as instructors in the operation of motor  vehicles  or  motorcycles.  An
  application  for  an  instructor's certificate must identify the driving
  school or schools in which the applicant is to act as an instructor  and
  shall   contain   such  other  information  as  the  commissioner  shall
  prescribe. Each such application shall be accompanied by a  fee  of  ten
  dollars  which  shall in no event be refunded. Such certificate shall be
  issued without payment of any additional fee and shall be limited to use

  in connection with the business  of  the  specified  driving  school  or
  schools.  Such  certificate  shall be valid until the date of expiration
  prescribed  by  the  commissioner  and  may  be  validated  for  use  in
  connection with the business of other driving schools without payment of
  any  additional  fee.  The  fee  for annual renewal thereof shall be ten
  dollars. Upon renewal, the commissioner may, in his discretion, issue  a
  renewal  which shall be valid for up to a two-year period. The fee for a
  two-year renewal  shall  be  twenty  dollars.  Fees  for  renewal  of  a
  certificate  valid for a period of less than two years shall be prorated
  on a quarterly basis and any portion of a quarter shall be considered  a
  quarter.
    (b)  The  commissioner  or  any  employee  of  the department of motor
  vehicles deputized  by  him,  may  suspend  or  revoke  an  instructor's
  certificate  for any of the following causes: (1) expiration, suspension
  or revocation of the  required  license  of  such  instructor;  (2)  the
  commissioner  has  determined that the driving record of such instructor
  indicates that  such  instructor  does  not  possess  the  qualities  or
  competence  necessary  or  desirable  for a driving instructor; (3) such
  instructor  has  failed  to  comply  with  the  rules  and   regulations
  prescribed  by  the commissioner; (4) conviction of such instructor of a
  felony or any crime involving violence, dishonesty,  deceit,  indecency,
  degeneracy  or  moral turpitude; and (5) such instructor has been guilty
  of fraud or fraudulent practices.
    8-a. Fees; deposited. Fees assessed under this section shall  be  paid
  to the commissioner for deposit to the general fund.
    9. Employees. No licensee shall knowingly employ, in connection with a
  driving  school  in  any  capacity  whatsoever,  any person who has been
  convicted of a felony, or of any crime involving  violence,  dishonesty,
  deceit, indecency, degeneracy or moral turpitude.
    10.  Judicial  review.  The  action of the commissioner in refusing to
  issue or renew, or revoking or  suspending  a  license  or  instructor's
  certificate  may be reviewed in a proceeding under article seventy-eight
  of the civil practice law and rules.
    11. Penalties. (a) A violation  of  any  of  the  provisions  of  this
  section shall constitute a misdemeanor.
    (b)  During  the  pendency  of  any  criminal prosecution based upon a
  violation of this section or if any such prosecution has been terminated
  and the defendant has been sentenced to pay a fine as provided  in  this
  chapter,  no  proceeding  to  recover civil penalties under this section
  shall be commenced and any such pending proceeding shall be stayed.
    12.  Unlicensed  operation;  procedures   and   penalties.   (a)   The
  commissioner or any person deputized by him shall hear and determine any
  allegation  that  a  person has operated a drivers' school without being
  licensed as  required  by  subdivision  two  of  this  section.  Upon  a
  determination  that a person has so operated, the commissioner or person
  deputized by him shall assess civil penalties as provided in  paragraphs
  (b) and (c) of this subdivision.
    (b)  Except  as  provided  in  paragraph  (c) of this subdivision, any
  person who operates a drivers' school without being  licensed  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  license as required by this section, provided
  that application for such license is made not more than ten  days  after
  the imposition of such penalty.
    (c)  (i)  Any person who operates a drivers' school while his drivers'
  school license 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.
    (ii)  Any person who operates a drivers' school without being licensed
  as required by subdivision two of this section who has previously had  a
  civil  penalty assessed for unlicensed 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.
    (d)  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 licensee 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.