S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   11158
 
                           I N  A S S E M B L Y
 
                             December 4, 2020
                                ___________
 
 Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Fahy, McDo-
   nald, Woerner, Buttenschon, Barron, Gottfried, Galef, Jaffee,  Mosley,
   Cusick,  Englebright, Taylor) -- read once and referred to the Commit-
   tee on Consumer Affairs and Protection
 
 AN ACT to amend the general business law,  in  relation  to  third-party
   food delivery service charges

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new section
 391-v to read as follows:
   § 391-V. THIRD-PARTY FOOD DELIVERY SERVICE CHARGE. 1. FOR THE PURPOSES
 OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "DELIVERY FEE" MEANS A FEE CHARGED BY A THIRD-PARTY FOOD  DELIVERY
 SERVICE  FOR  PROVIDING A FOOD SERVICE ESTABLISHMENT WITH A SERVICE THAT
 DELIVERS FOOD FROM SUCH ESTABLISHMENT TO CUSTOMERS. THE  TERM  DOES  NOT
 INCLUDE ANY OTHER FEE THAT MAY BE CHARGED BY A THIRD-PARTY FOOD DELIVERY
 SERVICE  TO  A  FOOD  SERVICE ESTABLISHMENT, SUCH AS FEES FOR LISTING OR
 ADVERTISING THE FOOD  SERVICE  ESTABLISHMENT  ON  THE  THIRD-PARTY  FOOD
 DELIVERY  SERVICE  PLATFORM  OR  FEES  RELATED  TO PROCESSING THE ONLINE
 ORDER.
   (B) "FOOD SERVICE ESTABLISHMENT" MEANS A PLACE WHERE FOOD IS  PROVIDED
 FOR  INDIVIDUAL  PORTION  SERVICE  DIRECTLY TO THE CONSUMER WHETHER SUCH
 FOOD IS PROVIDED FREE OF CHARGE OR SOLD, AND WHETHER CONSUMPTION  OCCURS
 ON OR OFF THE PREMISES OR IS PROVIDED FROM A PUSHCART, STAND OR VEHICLE.
   (C)  "ONLINE  ORDER"  MEANS  ANY ORDER PLACED BY A CUSTOMER THROUGH OR
 WITH THE ASSISTANCE OF A PLATFORM PROVIDED BY A THIRD-PARTY FOOD  DELIV-
 ERY SERVICE, INCLUDING A TELEPHONE ORDER.
   (D)  "PURCHASE  PRICE" MEANS THE TOTAL PRICE OF THE ITEMS CONTAINED IN
 AN ONLINE ORDER THAT ARE LISTED ON THE MENU OF THE FOOD  SERVICE  ESTAB-
 LISHMENT  WHERE  SUCH ORDER IS PLACED. SUCH TERM DOES NOT INCLUDE TAXES,
 GRATUITIES AND ANY OTHER FEES THAT MAY MAKE UP THE  TOTAL  COST  TO  THE
 CUSTOMER OF AN ONLINE ORDER.
   (E)  "THIRD-PARTY  FOOD  DELIVERY  SERVICE"  MEANS ANY WEBSITE, MOBILE
 APPLICATION OR OTHER INTERNET SERVICE THAT OFFERS OR  ARRANGES  FOR  THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD17479-02-0

 A. 11158                            2
 
 SALE  OF  FOOD  AND  BEVERAGES PREPARED BY, AND THE SAME-DAY DELIVERY OR
 SAME-DAY PICKUP OF FOOD AND BEVERAGES FROM, NO FEWER  THAN  TWENTY  FOOD
 SERVICE  ESTABLISHMENTS  LOCATED IN THE CITY THAT ARE OWNED AND OPERATED
 BY DIFFERENT PERSONS.
   2.  (A)  NO  THIRD-PARTY  FOOD  DELIVERY  SERVICE  SHALL CHARGE A FOOD
 SERVICE ESTABLISHMENT A DELIVERY  FEE  THAT  TOTALS  MORE  THAN  FIFTEEN
 PERCENT OF THE PURCHASE PRICE OF EACH ONLINE ORDER.
   (B)  IT  SHALL  BE UNLAWFUL FOR A THIRD-PARTY FOOD DELIVERY SERVICE TO
 CHARGE A FOOD SERVICE ESTABLISHMENT ANY FEE OR FEES, OTHER THAN A DELIV-
 ERY FEE PERMITTED UNDER PARAGRAPH (A) OF THIS SUBDIVISION, FOR  THE  USE
 OF  SUCH  THIRD-PARTY DELIVERY SERVICE THAT IS GREATER THAN FIVE PERCENT
 OF THE PURCHASE PRICE OF EACH ONLINE ORDER.
   (C) ANY FEE OR OTHER CHARGES FROM A THIRD-PARTY FOOD DELIVERY  SERVICE
 TO A FOOD SERVICE ESTABLISHMENT BEYOND SUCH MAXIMUM FIVE PERCENT FEE PER
 ORDER,  AND  A  DELIVERY FEE COLLECTED PURSUANT TO PARAGRAPH (A) OF THIS
 SUBDIVISION, ARE UNLAWFUL.
   3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
 MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF  THE  PEOPLE  OF  THE
 STATE  OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE AN
 INJUNCTION TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND
 IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT  THE
 DEFENDANT  HAS,  IN  FACT,  VIOLATED  THIS SECTION, AN INJUNCTION MAY BE
 ISSUED BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING  ANY  FURTHER
 VIOLATION,  WITHOUT  REQUIRING  PROOF THAT ANY PERSON HAS, IN FACT, BEEN
 INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT  MAY  MAKE
 ALLOWANCES  TO  THE ATTORNEY GENERAL AND DIRECT RESTITUTION OF AN AMOUNT
 NOT TO EXCEED THE AMOUNT OF FEES COLLECTED IN VIOLATION OF THIS  SECTION
 BY  A THIRD-PARTY FOOD DELIVERY SERVICE, ATTORNEYS' FEES, AND SUCH OTHER
 REMEDIES AS THE COURT MAY DEEM APPROPRIATE.  WHENEVER  THE  COURT  SHALL
 DETERMINE  THAT  A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT MAY
 IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND  DOLLARS  FOR  EACH
 VIOLATION.  EACH  DAY  A VIOLATION OF THIS SECTION IS CONTINUED AND EACH
 FOOD SERVICE ESTABLISHMENT CHARGED A FEE IN VIOLATION  OF  THIS  SECTION
 SHALL  CONSTITUTE  A  SEPARATE  VIOLATION.  IN  CONNECTION WITH ANY SUCH
 PROPOSED APPLICATION THE ATTORNEY GENERAL IS AUTHORIZED  TO  TAKE  PROOF
 AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   § 2. This act shall take effect immediately.