[Added 4-10-2018 by G.O.
No. 4-2018]
As used in this article, the following terms shall have the
meanings indicated:
Any person, other than a bona fide employee of the owner,
who owns or operates an excavation business or who undertakes or offers
to undertake or agrees to perform any excavation, whether or not such
person is licensed or subject to licensing requirement of this article
and whether or not such person is a prime contractor or subcontractor
with respect to the owner.
The Director of the Office of Licensing.
Excavating, digging, trenching, grading, backfilling, stripping,
earth moving and installation of sanitary, storm sewers and laterals
relative to development work and, in addition, main water lines and
copper connections for housing units, and also any and all drains,
swales or any specific underground lines for site drainage of all
kinds in connection with dwelling houses, garages, barns, sheds, or
shelters; commercial, industrial or public buildings or structures;
ornamental, wading or swimming pools; public or commercial recreational
buildings, structures or areas.
An agreement between a contractor and an owner for the performance
of excavation work, and includes all labor, services and materials
to be furnished and performed thereunder.
A person permitted to engage in the excavation business under
the provisions of this article.
Any person who orders, contracts for or the person entitled
to the performance of the work of a contractor pursuant to an excavation
contract.
An individual, firm, partnership, association or corporation.
A.
No person shall engage in the removal of the pavement or disturbance of the surface of any street for the purpose of making sewer connections or repairing sewers or pipes or laying down gas or water pipes, steam pipes or electric conduits, cables or ducts or introducing the same into residential, commercial or industrial buildings or placing building materials, tar kettles, compressors, sidewalk fences or sidewalk bridges or crossing the sidewalk other than usual use, or for any purpose whatever, unless such person is licensed therefor pursuant to this article. The license fee shall be waived for any holder of a home improvement license pursuant to Article XIV of this chapter.
Except when otherwise specifically exempted by the provisions
of this article, no person shall act in the capacity of an excavator
unless authorized to do so by a license issued in accordance with
the provisions of this article.
A.
A license issued pursuant to this article may not be construed to
authorize the licensee to perform any particular type of work or kind
of business which is reserved for qualified licensees under separate
provisions of state or local law or the Code of the City of Yonkers,
nor shall any license or authority other than as is issued or permitted
pursuant to this article authorize engaging in the excavation business.
B.
Nothing in this article shall be construed to limit or restrict the
power of the City to regulate the quality, performance or character
of the work of excavator, including a system of permits and inspections
which are designed to secure compliance with and aid in the enforcement
of applicable state and local laws, including but not limited to the
Yonkers Fire and Building Code, or to enforce other laws necessary
for the protection of the public health and safety.
C.
Nothing in this article limits the power of the City to adopt any
system of permits requiring submission to and approval by the City
of plans and specifications for an excavation prior to the commencement
of said excavation or of inspection of work done.
A.
If the applicant does not maintain a bona fide establishment at a
definite location within the State of New York, the applicant shall
designate the City Clerk of the City of Yonkers as agent for the service
of process and the address to which the City Clerk shall mail all
process served upon the applicant pursuant to this section of this
article. The City Clerk shall promptly, upon receipt of such process,
forward the same to the licensee at the address designated for that
purpose. In the event that the licensee is a corporation, service
shall not be made on the City Clerk, but may be made on the Secretary
of State of the State of New York as otherwise provided by law. Nothing
herein contained shall be construed so as to prevent service of process
upon the licensee in any other manner provided by the laws of the
State of New York.
B.
An applicant for an excavation license must be the real owner and
possess title to or be entitled to the possession of the establishment
and will conduct, operate, engage in and transact an excavation business
and must so demonstrate to the Director. The applicant must also furnish
to the Director satisfactory evidence of a good moral character and
financial responsibility.
C.
The applicant shall furnish a certificate from an insurance company
licensed to do business in the State of New York, evidencing that
the applicant and any motor vehicles are covered by a general liability
and personal injury in the minimum amount of $100,000 for any person
and the minimum amount of $300,000 for any one accident and property
damage insurance in the minimum amount of $25,000 and also provide
evidence that the employees of the applicant are covered by worker's
compensation or by an exemption certificate meeting the requirements
of the State of New York and containing a ten-day notice of cancellation
clause directed to the Director, before any license hereunder shall
be issued.
A.
All licenses, except temporary licenses, shall be for a period of
two years from the date of issuance and shall expire on the last day
of the 24th month following issuance.
B.
No license shall be assignable or transferable except as hereinafter
provided. A license to conduct an excavation business issued to an
individual may be assigned or transferred for the remainder of the
license period to a partnership or corporation, if such individual
is a member of such partnership or a stockholder of such corporation
owning not less than 25% of the outstanding stock at the time of such
assignment or transfer. A license issued to a partnership may be assigned
or transferred for the remainder of the license period to any member
of such partnership, provided that the transferee obtains the consent
of all other members of such partnership. The application for such
transfer or assignment must be accompanied by proof satisfactory to
the Director that the requirements herein provided have been complied
with. No assignment or transfer shall become effective unless and
until the endorsement of the transfer or assignment has been made
on the face of the license by the Director and such license, so endorsed,
has been returned to the assignee or transferee. All such endorsements
shall be made upon payment of a fee of $10.
C.
Each license issued pursuant to this article shall be posted and
kept posted in some conspicuous place in the excavation business.
D.
Any license, except a temporary license, which has not been suspended
or revoked may, upon the payment of the renewal fee prescribed by
this article, be renewed for an additional period of two years from
its expiration, upon filing of an application for such renewal on
a form to be prescribed by the Director. Failure to make application
for such renewal within 15 days prior to the expiration date of the
license shall subject the licensee to a penalty of $25, which shall
be paid prior to the issuance of the renewal.
E.
A duplicate license may be issued for one lost, destroyed or mutilated,
upon application therefor on a form prescribed by the Director and
the payment of the fee prescribed therefor by this article. Each such
duplicate license shall have the word "duplicate" stamped across the
face thereof and shall bear the same number as the one it replaces.
F.
A supplementary license may be issued for each additional place of
business maintained by a licensee within the City of Yonkers upon
application therefor on a form prescribed by the Director and the
payment of the fee prescribed therefor by this article. Each such
supplementary license shall have the word "supplementary" stamped
across the face thereof and shall bear the same number as the original.
G.
Each licensee shall receive, affix and display, on the left fender
of each vehicle and on the left rear fender of any trailer regularly
used in the course of its business, an identification decal issued
by the Office of Licensing. Three decals shall be issued for each
license. Additional decals for vehicles registered to the license
and used for the purposes as described under this article may be obtained
from the Office of Licensing for an additional fee of $10 per decal.
All vehicles of licensees conducting business in the City of
Yonkers shall display on the sides of the body of the vehicle, in
permanent letters legibly printed, stamped or enameled at least eight
inches in height and 1 1/2 inches in width, or on a sign attached
to the sides of the vehicle or prominently displayed on an enamel
sign at least two feet by three feet in size permanently attached
to the vehicle the name, address and phone number of the owner.
A.
The fee for an excavation license shall be $400, and for each renewal
thereof, the fee shall be $400.
B.
The fee for issuing each supplementary or duplicate license for one
lost, destroyed or mutilated shall be $25.
C.
The fees hereinabove set forth shall be those for licenses issued
for the license period of two years.
D.
The Director shall refund the fee paid by any applicant in the event
that the application for a license is denied or the applicant for
the license has predeceased its service prior to its issuance. Such
refunds shall, upon approval by the Director and after audit, be paid
from any moneys received pursuant to this article.
E.
Licenses of all contractors shall expire two years from the date
of issuance unless the license is renewed after the original license
has expired.
A.
When an application has been filed with the Director in proper form,
the Director shall, within a period of 90 days from the date thereof,
issue or refuse the appropriate excavator's license to the applicant.
If an applicant for a license is refused, the Director shall send
to the applicant a written statement setting forth the reason for
the refusal to grant the license.
B.
The Director shall prescribe and furnish such forms as are appropriate
in connection with applications for licenses and the issuance, renewal
or termination thereof.
C.
An applicant for any license required by the provisions of this article
shall file with the Director a written application which shall be
signed and under oath.
D.
The Director at any time may require reasonable information of an
applicant or licensee, including but not limited to the applicant's
true identity, personal history, history in excavation and other businesses,
the names of owners, stockholders, partners, directors and officers
of any applicant and the business address and trade name of the applicant.
E.
Temporary licenses for a period not to exceed 30 days may be issued
by the Director to qualified applicants who maintain an office or
place of business outside the City of Yonkers and who are licensed
by the state, municipality or county in which they maintain their
office.
In addition to the powers and the duties elsewhere prescribed
in this article, the Director shall have power to:
A.
Examine into the qualifications and fitness of applicants for licenses
under this article.
B.
Keep records of all licenses issued, suspended or revoked.
C.
Adopt such rules and regulations not inconsistent with the provisions
of this article as may be necessary with respect to the form and content
of applications for licenses, the reception thereof, the investigation
and examination of applicants and their qualifications and other matters
incidental or appropriate to his powers and duties as prescribed by
this article and for the proper administration and enforcement of
the provisions of this article, and to amend or repeal any of such
rules and regulations.
License to conduct, operate, engage in and transact an excavation
business may be refused, suspended or revoked by the Director for
any one or more of the following causes:
A.
Fraud, misrepresentation or bribery in securing a license.
B.
The making of any false statement as to a material matter in any
application for a license.
C.
The person or the management personnel of the contractor are untrustworthy
or not of good character.
D.
The business transactions of the business have been marked by a practice
of failure to perform its contracts or the manipulation of assets
or accounts, or by fraud or bad faith.
E.
Failure to display the license as provided in this article.
F.
Violation of any provision of this article or of any rule or regulation
adopted hereunder.
A.
The following acts are prohibited:
(1)
Abandonment or willful failure to perform, without justification,
any excavation contract or project engaged in or undertaken by the
business, or willful deviation from or disregard of plans or specifications
in any material respect without the consent of the owner.
(2)
Making any substantial misrepresentation in the procurement of an
excavation contract, or making any false promise likely to influence,
persuade or induce.
(3)
Any fraud in the execution of or in the material alteration of any
contract, mortgage, promissory note or other document incident to
an excavation transaction.
(4)
Preparing or accepting any mortgage, promissory note or other evidence
of indebtedness upon the obligations of an excavation transaction
with knowledge that it recites a greater monetary obligation than
the agreed consideration for the excavation work.
(5)
Directly or indirectly publishing any advertising relating to the
excavation business which contains an assertion, representation or
statement of fact which is false, deceptive or misleading, provided
that any advertisement which is subject to and complies with the existing
rules, regulations or guides of the Federal Trade Commission shall
not be deemed false, deceptive or misleading; or advertising by any
means or purporting to offer the general public any excavation work
or the price of such work containing an assertion, representation
or statement of fact which is false, deceptive or misleading.
(6)
Willful or deliberate disregard and violation of the building, sanitary
and health laws of this state or any political or municipal subdivision
thereof.
(7)
Willful failure to notify the Director within 10 days after any change
of control in ownership, management or business name or location.
(8)
Conducting an excavation business in any other name other than the
one in which the contractor is licensed.
(9)
Willful failure to comply with any order, demand or requirement made
by the Director pursuant to provisions of this article.
B.
As part of or in connection with the inducement to make an excavation
contract, no person shall promise or offer to pay credit charges or
allow to a buyer any compensation or reward for the procurement of
an excavation contract with others.
C.
No contractor shall offer or pay a loan as an inducement to enter
into excavation contract.
D.
No acts, agreements or statements of a buyer under an excavation
contract shall constitute a waiver of any provision of this article
intended for the benefit or protection of the buyer.
E.
No person shall advertise or hold themselves out as being qualified
to perform excavation as defined in this article in the City of Yonkers
unless licensed as herein provided, and the license number shall appear
in all such advertising.
F.
Exceptions. No license shall be required of an individual who performs
labor or services for a contractor for wages or salary.
