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8229--C
1995-1996 Regular Sessions
I N A S S E M B L Y
June21 , 1995

EXPLANATION -- Matter in italics is new; matter in brackets [ ] is old law to be omitted.

Introduced by COMMITTEE ON RULES -- (at request of M. of A. Greene, Brennan, D. Butler, Clark, Cook, Crowley, DiNapoli, Dinowitz, Dugan, Griffith, Hikind, Hill, Hoyt, Kaufman, Lafayette, McLaughlin, Murtaugh, Nolan, Perry, Polonetsky, Ramirez, Rivera, Seminerio, Weinstein) -- (at request of the Governor) -- read once and referred to theCommittee on Banks -- recommitted to the Committee on &3in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported and referred to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee

AN ACT to amend the banking law, in relation to interstate branching; interstate expansion by bank holding companies; the provision of accommodation services to customers of affiliated banking organizations; and repealing certain provisions of the banking law relating thereto and to amend the banking law, in relation to enacting the "ATM safety act"; and providing for the repeal of certain provisions upon expiration thereof

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

ARTICLE II-AA

ATM SAFETY ACT

Section 75-a. Legislative intent. 75-b. Definitions. 75-c. Security measures. 75-d. List of facilities. 75-e. Consumer safety information. 75-f. Enforcement and statistics. 75-g. Report of compliance. 75-h. Compliance with local building code and all other applicable provisions of law. 75-i. Facilities not subject to this article. 75-j. Civil penalties. 75-k. Collection of penalties. 75-l. Preemption. 75-m. Variances and exemptions from automated teller machine security measures. 75-n. Rules and regulations. 75-o. Severability. 75-a. Legislative intent. The legislature hereby finds that automated teller machines are an integral part of consumers' lives and that automated teller machines are used by millions of New Yorkers, statewide, on a daily basis. It is the legislature's intent to ensure the convenience and safety of automated teller machine use by establishing security measures for automated teller machine facilities.

75-b. Definitions. For purposes of this article, the following terms shall have the following meanings:

1. "Access device" means a card, code, or other means of access to a consumer's account, or any combination thereof, that may be used by the consumer for the purpose of initiating electronic fund transfers.

2. "Automated teller machine" means a device which is linked to the accounts and records of a banking institution and which enables consumers to carry out banking transactions, including, but not limited to, account transfers, deposits, cash withdrawals, balance inquiries, and loan payments.

3. "Automated teller machine facility" means an area within the dominion and control of a banking institution comprised of one or more automated teller machines and any adjacent space which is made available to banking customers after regular banking hours.

4. "Adequate lighting" means (a) with respect to an automated teller machine facility located within the interior of a building, lighting, on a twenty-four hour basis, which permits a person entering such facility to readily and easily see all persons occupying such facility, and which permits a person inside such facility to readily and easily see all persons at the entry door of such facility.

(b) with respect to an open and operating automated teller machine facility open to the outdoor air, and any defined parking area, lighting during nighttime hours according to the following standards:

(i) a minimum illuminance of ten candlefoot power is maintained on a horizontal plane at a point five feet outward from and five feet above the ground surface from the automated teller machine;

(ii) a minimum illuminance of two candlefoot power is maintained on a horizontal plane at a point fifty feet in all unobstructed directions from the automated teller machine, measured at a point five feet above the ground surface; and

(iii) if an outdoor automated teller machine is located within ten feet of the corner of a building and the automated teller machine facility is generally accessible from the adjacent side, there shall be a minimum illuminance of two candlefoot power along the first forty unobstructed feet of the adjacent side of the building.

(c) with respect to a defined parking area, a minimum of two candlefoot power in that portion of the parking area within sixty feet of the automated teller machine facility.

5. "Banking institution" means any state or federally chartered bank, trust company, savings bank, savings and loan association, or credit union, whether headquartered within or outside of the state, that operates one or more automated teller machine facilities within the state.

6. "Candlefoot power" means the light intensity of candles measured on a horizontal plane thirty-six inches above ground level and five feet in front of the area to be measured.

7. "Regular banking hours" means the time at which an office of a banking institution is open to the banking public for normal transaction of business.

8. "Nighttime hours" means the period of time beginning thirty minutes after sunset and ending thirty minutes before sunrise.

9. (a) "Defined parking area" means that portion of any parking area open for and accessible to customers of a banking institution which is:

(1) contiguous to any paved walkway or sidewalk within fifty feet of an automated teller machine facility;

(2) regularly, principally and lawfully used for parking by users of the automated teller machine facility while conducting transactions at such automated teller machine facility; and

(3) owned or leased by the operator of the automated teller machine facility, or owned or otherwise controlled by the party leasing the automated teller machine facility site to the banking institution.

(b) The term "defined parking area" does not include any parking area which is not open or regularly used for parking by the users of the automated teller machine facility or the conduct of transactions during nighttime hours. For this purpose, the parking area is not open if it is physically closed to access or if conspicuous signs indicate that it is closed.

75-c. Security measures. Every banking institution shall maintain the following security measures with respect to each of the automated teller machine facilities within its dominion and control:

1. A surveillance camera or cameras, which shall view and record all persons entering an automated teller machine facility located within the interior of a building, or which shall view and record all activity occurring within a minimum of three feet in front of an automated teller machine located outside a building and open to the outdoor air. Such camera or cameras need not record banking transactions made at the automated teller machines. The recordings made by such cameras shall be preserved by the banking institution for at least thirty days.

2. Adequate lighting.

3. With respect to an indoor automated teller machine facility: (a) entry doors equipped with locking devices which permit entry to such facility only to persons using a magnetic-strip plastic card or similar access device.

(b) To the extent practicable, as determined by an expert with competence in such matters and as permitted by local building codes, at least one exterior wall which provides an unobstructed view of the interior of the automated teller machine facility.

(c) A reflective mirror or mirrors, as necessary, placed in such a manner as to permit a person entering an indoor automated teller machine facility to view areas within such facility that are otherwise concealed to plain view.

(d) A clearly visible sign which, at a minimum, provides the following information:

(1) the activity of the automated teller machine facility is being recorded by a surveillance camera or cameras;

(2) customers should close the entry door completely upon entering and exiting;

(3) customers should not permit any unknown persons to enter after regular banking hours;

(4) customers should place withdrawn cash securely upon their person before exiting the automated teller machine facility;

(5) complaints concerning security in the automated teller machine facility should be directed to the banking institution's security department or the banking department, together with telephone numbers for such complaints, and that the nearest available public telephone should be used to call the police if emergency assistance is needed.

75-d. List of facilities. Any banking institution which operates an automated teller machine facility shall file a list of such facilities with the department, including the street addresses, intersecting streets, hours of operation, and the telephone number of the banking institution's security department. Such information shall also be filed with the department with respect to each additional automated teller machine facility within a reasonable time, as specified by the superintendent, from the date upon which such facility commences operation. The department shall make such list available on request of local law enforcement agencies and other local governmental entities.

75-e. Consumer safety information. Upon the original issuance or reissuance of an automated teller machine facility access device, the issuing banking institution shall provide its customers with written information concerning safety precautions to be employed while using an automated teller machine facility. Such written information shall include, at a minimum, the information described in paragraph (d) of subdivision three of section seventy-five-c of this article.

75-f. Enforcement and statistics. 1. The department is authorized to enforce this article.

2. Statistics of crimes associated with the use of automated teller machine facilities compiled and maintained by any law enforcement agency shall be made available upon the request of any banking institution or the department.

75-g. Report of compliance. Within one year after the effective date of this article, and each year thereafter, every banking institution which has an automated teller machine facility which is in operation on such date and such date every year thereafter shall submit a written report to the department on a form prescribed by the superintendent, certifying that such automated teller machine facility is in compliance with the provisions of this article or any variance or exemption that has been granted, or if such facility is not in compliance with such provisions, such report shall state the manner in which such facility fails to meet such requirements, the reasons for such non-compliance and a plan to remedy any such non-compliance.

75-h. Compliance with local building code and all other applicable provisions of law. Unless otherwise provided in this article, nothing contained in this article shall be construed to exempt or relieve any banking institution from complying with all relevant provisions of the local building code and all other applicable provisions of law.

75-i. Facilities not subject to this article. The provisions of this article shall not apply to any unenclosed automated teller machine located in any building, structure or space whose primary purpose or function is unrelated to banking activities, including but not limited to supermarkets, airports, school buildings, and public buildings, provided that such automated teller machine shall be available for use only during the regular hours of operation of the building, structure, or space in which such machine is located.

75-j. Civil penalties. 1. Any banking institution found to be in violation of any provision of section seventy-five-c of this article shall correct the violation within ten business days after such finding. Where a banking institution fails to correct said violation within such period of time, the superintendent may in a proceeding after notice and a hearing, require any banking institution to pay a civil penalty in a sum not to exceed two thousand five hundred dollars for each and every offense, provided, however, that the aggregate penalty for all offenses with respect to any one automated teller machine facility in any one proceeding shall not exceed ten thousand dollars. For the purposes of this article, each violation of section seventy-five-c of this article shall be considered a separate and distinct violation.

2. Any banking institution found to be in violation of the provisions of section seventy-five-g of this article shall be liable for a civil penalty of not more than one thousand dollars for each automated teller machine facility for which a report has not been filed. Any banking institution which makes a material false statement or material omission in any report filed pursuant to section seventy-five-g of this article shall be liable for a civil penalty of not more than five thousand dollars for each such report.

3. Whenever payment of a civil penalty is required under this article, the superintendent shall execute a written order to that effect. A copy of such order shall be filed in the office of the department and a second copy shall, within three days of execution, be served upon such banking institution either personally or by registered or certified mail, return receipt requested, directed to the banking institution's principal place of business. Such order may be reviewed in the manner provided by article seventy-eight of the civil practice law and rules. Such special proceedings for review as authorized by such section must be commenced within thirty days from the service of such order. Such section shall in no way limit any of the powers granted to the superintendent under any provision of this chapter.

75-k. Collection of penalties. The superintendent shall have the discretion to report to the attorney general any failure, after due notice, to make payments of penalties incurred under this article. The attorney general shall, thereupon, in the name of the superintendent, or of the people of the state, institute such actions or proceedings as the facts may warrant.

75-l. Preemption. 1. Except as provided in subdivision two of this section, this article shall supersede and preempt all rules, regulations, codes, statutes or ordinances of all cities, counties, municipalities, and local agencies regarding customer safety at automated teller machine facilities.

2. To the extent that any security measures inconsistent with or in addition to the provisions of section seventy-five-c of this article are in effect, on the date on which this article becomes a law, in any city having a population of one million or more, pursuant to any rules, regulations, codes, statutes or ordinances regarding customer safety at automated teller machine facilities duly enacted by such city on or before the date on which this article becomes a law, such security measures shall continue to be required within such city; provided, however, that the enforcement of any such security measures shall be enforced by the superintendent.

75-m. Variances and exemptions from automated teller machine security measures. 1. Except in cities having a population of one million or more, and in accordance with the guidelines set forth in this article, the superintendent, pursuant to rules and regulations promulgated by the superintendent, and upon written request of a banking institution, may approve variances which provide substitute security measures that are substantially as safe as the requirements of any of the security measures contained in this article, or exemptions from such measures, with respect to an automated teller machine facility or facilities operated by such banking institution;

2. In no event, however, shall the superintendent vary or exempt any such measures unless he or she shall have received the following items, in form and substance satisfactory to him or her:

(a) a resolution or declaration of the governing body of the city, village, or town in which such automated teller machine facility is located consenting to any such variance or exemption; and

(b) written certification from the banking institution's security officer, appointed in accordance with federal law, that, in his or her professional judgment, either the variance will provide security measures which are substantially as safe as those which are otherwise required by this article or the exemption is warranted, as applicable; and

(c) in the event the request for any such variance or exemption is premised upon the impracticability or burdensome expense that would result from compliance with the security provisions contained in this article, and such impracticability or expense is attributable to the manner in which the building in which such automated teller machine facility is, or is to be, located, constructed, configured or otherwise situated, written certification to such effect from an expert with competence in the areas of renovation and/or design, as may be appropriate; and

(d) such other evidence or information as the superintendent may, in his or her sole discretion, deem appropriate or necessary.

75-n. Rules and regulations. The superintendent shall promulgate such rules and regulations as necessary to define and implement the provisions of this article.

75-o. Severability. If any word, phrase, clause, sentence, paragraph, section 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 word, phrase, clause, sentence, paragraph, section or part thereof directly involved in the controversy in which judgment shall have been rendered.

21. Section 43 of the banking law is amended by adding a new subdivision 10 to read as follows:

10. A statement of banking institutions, as defined in article II-AA of this chapter, which have been granted a variance or exemption from automated teller machine security measures. The statement shall include a listing of the number of variance or exemption applications received and granted; the name of the banking institution which received a variance or exemption; the geographic location of the automated teller machines subject to the variance or exemption; and, the general conditions or terms of the variance or exemption.

22. This act shall take effect immediately, except that section nine of this act shall expire and be deemed repealed on June 1, 1997; section ten of this act shall take effect on June 1, 1997; and sections twenty and twenty-one of this act shall take effect on the first day of January next succeeding the date on which it shall have become a law. REPEAL NOTE.--Section 142-b of the banking law, repealed by section seven of this act, permitted an out-of-state bank holding company to acquire a bank or bank holding company in this state only if the laws of such holding company's principal state permitted a comparable acquisition by a New York bank holding company either without limitation or on a reciprocal basis and required a New York bank holding company to obtain the superintendent of bank's approval to make an acquisition in a reciprocal state. Section 225 of the banking law, repealed by section thirteen of this act, prescribed the grounds for denial by the superintendent of banks of an application by an out-of-state bank to establish one or more branch offices in this state. Section 227-a of the banking law, repealed by section sixteen of this act, gave the superintendent of banks the authority to revoke the authority of an out-of-state bank to operate a branch office and prescribed the grounds on which such action could be taken.